석면의 법적 규제와 제조물 책임
Asbestos ban regulations and Product Liability
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Asbestos is the name of a group of naturally occurring fibrous minerals known for their properties of relative indestructibility and resistance to heat and fire. Today more than three thousand product commonly found in the home and work environments contain asbestos. Ironically, experts now regard asbestos as one of the most dangerous of all natural materials. The number of workers who have developed or will develop diseases related to their exposure to asbestos is of unprecedented proportion. A person who suffers injury from exposure to asbestos products may sue the manufacturer under traditional theories of products liability: negligence, product liability. Under the Product Liability theory, manufacturer is strictly liable in tort when it places an article on the market, knowing that it is to be used without inspection for defects, and the product proves to have a defect that causes injury to a human being. Citing Borel the Eighth Circuit stated that an asbestos manufacturer may be subject to strict liability in tort if it fails to provide adequate warnings regarding the use of its product. Most reported asbestos decisions focus on marketing defects. Marketing defects include the seller's or manufacturer's failure to provide adequate warnings of the risks inherent in using its product and failure to provide adequate instructions for the safe and appropriate use of its product. Thus, a court may find a product defective because the manufacturer failed to provide adequate warnings regarding the product's use. Foreseeability of harm is the primary issue in failure-to-warn cases, regardless of the so-called state-of-the-art defense. We need the enactment of workers' compensation laws and the incorporation of occupational disease cases into their coverage. We require the Asbestos Center and the Administrator to establish a plan for victim compensation and risk regulation.
Abstract
Asbestos is the name of a group of naturally occurring fibrous minerals known for their properties of relative indestructibility and resistance to heat and fire. Today more than three thousand product commonly found in the home and work environments contain asbestos. Ironically, experts now regard asbestos as one of the most dangerous of all natural materials. The number of workers who have developed or will develop diseases related to their exposure to asbestos is of unprecedented proportion. A person who suffers injury from exposure to asbestos products may sue the manufacturer under traditional theories of products liability: negligence, product liability. Under the Product Liability theory, manufacturer is strictly liable in tort when it places an article on the market, knowing that it is to be used without inspection for defects, and the product proves to have a defect that causes injury to a human being. Citing Borel the Eighth Circuit stated that an asbestos manufacturer may be subject to strict liability in tort if it fails to provide adequate warnings regarding the use of its product. Most reported asbestos decisions focus on marketing defects. Marketing defects include the seller's or manufacturer's failure to provide adequate warnings of the risks inherent in using its product and failure to provide adequate instructions for the safe and appropriate use of its product. Thus, a court may find a product defective because the manufacturer failed to provide adequate warnings regarding the product's use. Foreseeability of harm is the primary issue in failure-to-warn cases, regardless of the so-called state-of-the-art defense. We need the enactment of workers' compensation laws and the incorporation of occupational disease cases into their coverage. We require the Asbestos Center and the Administrator to establish a plan for victim compensation and risk regulation.
참고문헌 (33)
- 권오승, "제조물책임법" (2003), 법문사
- 김민동, "개선될 수 없는 설계상 결함의 제조물책임", 안암법학, (25) (2007)
- 박균성, "폐기물관련법령의 기본구조", 환경법연구, 29(2)
- 박균성, "석면에 대한 법적 규제와 석면피해배상소송", 국제법무연구, (3)
- 배재광, "제조물책임법 사례해설" (2002), 전자신문사
- 송오식, "제조물의 결함 유무 판단기준", 民事法의 새로운 展開 : 閑道 鄭煥淡敎授 停年紀念論文集, pp.12~13 (2006)
- 신준식, "석면피해, 규제와 보상3, -호주의 경험", 국제노동브리프
- 오대성, "미국에서 석면사건에 관한 대표당사자소송의 실제", 민사법연구, 7
- 연기영, "의약품사고와 제조물 책임", 의료법학, 3(2) (2002), 대한의료법학회
- 이상정, "제조물책임법 제정의 의의와 향후 과제", 저스티스, 35(4) (2002), 한국법학원
- 임은하, "제조물책임법상 결함의 개념과 유형에 관한 고찰", 법조, (604) (2007)
- 채영근, "산업폐기물의 적정처리를 위한 법적 방안 연구", 환경법연구, 26(2)
- 석면으로 인한 건강피해 실태와 주요 외국의 석면피해구제법제, "한국법제연구원", 워크샵자료집, ~ (2008)
- 北村和生, "フランスにおけるアスベスト被害と?家賠償責任", 立命館法, 311
- 棚?孝雄, "アスベスト被害補償システムの設計", NBL (2006)
- 長?二一三男, "製造物責任法の 解說" (2007), 一橋出版
- 手塚一, "米海軍?須賀基地で石綿粉じん作業等に?事してじん肺 に罹患した日本人?業員らの、雇用主である?に?する安 全配慮義務違反に基づく損害賠償請求が認容された事例", 早法, 79(2) (2004)
- A.L.I, "Restatement of (Third) of Torts: Product Liability Tentative Draft", 2 (1995)
- A.L.I., "Restatement of The Law Third Tort, Product Liability, As Adopted and Promulgated", The American Law Institute at Washington (1997)
- Barry Ⅰ Castleman, "Asbestos Medical and Legal Aspects", ~ (2005)
- David A. Fischer, "Product Liability: Cases And Materials. American Casebook Series" (2002), West Group A Thomson Company
- Eric Stallard Kenneth G, "Forecasting Product Liability Claims- Epidemiology and Modelling in the Manville Asbestos Case" (2005), Springer
- Frederick C. Dunbar, "Denise Neumann Martin, Estimating Future Claims" (2004), Thomas West
- Henderson, "Product Liability Problems and Process", ~ (2004)
- Recent Developments in Federal Income Taxation: The Year, "Ira B. Shepard", ~ (2007)
- Kullmann, Hans, "Josef., Produkthaftungsgesetz", Aufl, Erich Schmidt Verlag, ~ (2001)
- Luke Nottage, "Product Safety and Liability Law in Japan-From Minamata to Mad Cows", ~
- Mansfield, "Asbestos: The Cases and the Insurance Problem", FORUM, ~ (1980)
- Patrick M. Hanlon, "FEDERAL ASBESTOS LEGISLATION", Journal of Law and Policy (2007)
- "Sales, The Duty to Warn and Instruct for Safe Use in Strict Tort Liability", ~ (1982)
- Selikoff, Churg, "The Occurrence of Asbestosis Among Insulation Workers in the United States" (1965)
- W. Kip Viscusi, "Structuring an Effective Occupational Disease Policy: Victim Compensation and Risk Regulation" (1984), Yale J. on Reg
- Wade, "On Product Design Defects and Their Actionability", ~ (1980)