임베디드 소프트웨어의 결함과 제조물책임 적용에 관한 고찰

A Study on Application of Product Liability to Defect of Embedded Software

Liability about damage due to defect of software is being maintained as legal disputes. Compensation for further damage due to the defects of software is first, under default of obligation of Civil Law, Article 390, assuming contract relation between person directly related. Second, it is under responsibility of illegal Civil Law, Article 750 that should prove negligence/intention of assailant regardless of contract relation between person directly related and defects liability under Civil Law, Article 580. Also, there is Product Liability that applies liability without fault to compensation for damages due to product defect. The problem is that to establish defects of Embedded Software requires high-degree of professional ability. Embedded Software is developed by skilled programmers, and it is hard for normal consumers to know the complexity of Embedded Software combined with elaborate IT devices and electronics. Therefore, by putting liability without fault regardless of contract relation on Product Liability Law, it has a different signification in the point that it can solve the existing limitation of compensation for damage due to the defects of Embedded Software. Because it is not obvious to consider Embedded Software as assets on Civil Law with the current Product Liability Law, Embedded Software that performs independent functions, equipped in part of particular product, has to stipulate on definition of product on Product Liability Law. As similar legislation case, in Product Liability Law and Council Directive(1999/34/EC), as amended in 1999 of Germany, because it determines that it contains electricity, an immaterial being, in products, it is under Product Liability Law. Because it is difficult for consumers to understand the complexity of Embedded Software that is developed by skilled software technicians and which is combined with cars, IT devices, or electronics, it is urgent to relax burden of proof about causal relationship of occurrence of damage and presence of defects on Product Liability Law. It needs legislation estimating that defects of products and further damage due to accident are due to defects of the products, when consumers confirm that 1) the fact that an accident occurs under exclusive control of manufacturer 2) the fact that an accident does not happen without mistake of manufacturers or third-party, although the consumers use the product in normal ways and get further damage from the accident.