소프트웨어하자로 인한 손해의 제조물책임법리 적용여부

The applicability of product liability to the damage resulted from the defective software

Computer software permeates our daily lives. It controls major telephone system, business system, and the medical treatment devices such as picture archiving and communication system and electric medical record system. As the computer technology has progressed, the industry society has moved into the knowledge-based society. Hardware-based industry has transformed into the software-based industry. The effect of software to our daily life is so important that the risk of defective software is growing bigger as the computer technology evolves. For example, the doctor tried to order dosage after a long hour surgery. The order time, however, has already passed after midnight, so the software added the 2 days dosage incorrectly. The result was disastrous and the patient died due to overdose. That kind of accident happened lately in Korea. Programming errors, resulting in defective software, can have disastrous consequences. Due to the narrow application of privity definition in Korea compared to Anglo-American legal system, some scholars in Korea insist that product liability should be applied to the damage resulted from the defective software. Such an argument, however, require the precedent condition that contract system does not work properly to cover the damage resulted from the defective software. That kind of argument should be based on the viewpoint that warranty in Korea is strict liability. Therefore, the scope of remedy is restricted to the contract price, not the real damage. This article reviews such an argument whether product liability should be applied to the damage resulted from the defective software and whether product liability is the sole effective remedy to cover that kind of damages.