This article discusses the legal liability of self-driving cars in the event of a traffic accident. It examines malfunctioning autonomous systems, manufacturer liability, and driver liability, and suggests the need for a special autonomous vehicle law.
Most automakers around the world have committed to launching self-driving cars by 2023. Navigant Research predicts that by 2035, 75% of new cars will be equipped with self-driving features. In Korea, the Ministry of Land, Infrastructure, and Transport has announced a policy to commercialize self-driving cars in 2020. One of the main goals of autonomous vehicles is to reduce traffic accidents, and it is expected that the incidence of traffic accidents will decrease as autonomous driving technology improves. However, there is still a possibility that a traffic accident may occur due to a malfunction of the self-driving car or a flaw in the software program. So, should the legal responsibility for a traffic accident lie with the driver who was relaxing behind the wheel, or with the manufacturer who created and manages the autonomous driving program? In this article, we will discuss the liability of autonomous vehicles in Korea in the event of a traffic accident. The significance of this discussion is that it gives practical consideration to the issues that may arise in the upcoming era of self-driving cars.
An autonomous vehicle is a car that is operated by a computer and does not require additional human control due to the application of precise global positioning system (GPS), sophisticated sensors, and radar technology. Given that 90% of traffic accidents are caused by human error, autonomous vehicles are expected to significantly reduce traffic accidents, thus contributing to human life and safety. However, since autonomous driving systems operate under the control of a computer, and software is subject to error at any time, malfunctions in autonomous driving systems can cause traffic accidents.
In February 2016, Google’s self-driving car caused an accident. When it swerved to the left to avoid a sandbag, it collided with a bus coming from behind. In May 2016, a Tesla Model S collided with a large tractor-trailer, seriously injuring and killing the driver, who was also killed. The investigation determined that the self-driving system failed to apply the brakes when it was in imminent danger of colliding. Even with the introduction of autonomous driving systems, we are always at risk of accidents.
So, who is responsible for traffic accidents in Korea? Since traffic accidents cause damage to the property, life, and body of the driver or others, civil damages and criminal liability are the main issues. Article 3 of the Motor Vehicle Damage Compensation Act stipulates that “a person who operates a motor vehicle for his or her own use shall be liable for compensation for damages if he or she causes the death or injury of another person.” The subject of liability for damages is the person who operates the motor vehicle for his or her own use. And to protect the victim’s right to compensation, the driver’s liability is assessed as strict liability. In other words, the driver is obligated to compensate the victim regardless of whether he or she is at fault. As for the scope of recognition of the driver, the judicial position is that it is judged based on two factors: control and profit.
A driver is a person who is in a position to control and benefit from the operation according to social convention. For example, in the case of a traffic accident caused by a substitute driver, not only the substitute driver but also the owner of the car is recognized as the driver, meaning that the substitute driver and the owner are jointly and severally liable for damages to the victim of the traffic accident.
When applying the current law to self-driving cars, the owner is recognized as a driver under the law because he or she is “operating the vehicle for his or her own benefit”. This is probably not controversial. However, an autonomous driving system that acts as a surrogate driver is software and does not have the status of a driver, so the Automobile Damage Compensation Act cannot be applied. Therefore, whether the manufacturer of an autonomous driving system can be held liable should be considered under the Product Liability Act. Article 3 of the Product Liability Act states that “a manufacturer shall compensate a person who suffers damage to life, body, or property due to a defect in a product,” which can be interpreted to impose liability on the manufacturer.
However, because self-driving cars are a combination of “software” – the autonomous driving system – and “hardware” – the car, their nature as a product is not so clear-cut. While the hardware itself, such as a car, is recognized as a product and subject to product liability laws, the software itself, such as an autonomous driving system, is not recognized as a product and cannot be subject to product liability laws. The practical reason for not imposing product liability on software programs is that it is not possible for a manufacturer to fully predict whether a software program will always function properly and make errors, but to hold the manufacturer solely responsible for accidents caused by the malfunction of the software program would disincentivize the manufacturer to develop the technology and thus hinder technological progress.
Therefore, it is necessary to enact a special law for autonomous vehicles to protect drivers in traffic accidents. This is because there is no legal structure to hold the manufacturer responsible. The Ministry of Land, Infrastructure, and Transport is considering a plan to prioritize autonomous vehicle accidents to be handled by the driver and compensate the driver again if the manufacturer is found to be at fault. Since there hasn’t yet been a case in Korea where a self-driving car has been involved in a traffic accident, it’s unclear how the courts would rule. However, since it is not clear who is responsible, there is room for many legal disputes to arise. In addition, in order to protect the rights of consumers, manufacturers need to fulfill their social responsibilities. In order to fulfill their responsibilities, they need an institutional mechanism, the law. Companies that turn their backs on consumers without redressing their grievances will have a hard time surviving in the automotive market. Recently, United Airlines was criticized for forcibly removing a passenger from an airplane, causing the company’s image to plummet and consumers to boycott the airline. The consequences of a company’s lack of moral consciousness can be devastating. The enactment of a special law will protect the rights of consumers and improve the image of companies at the same time. Therefore, if it is clear that the manufacturer is at fault, such as an accident caused by a software glitch, it is necessary to establish a legal system to compensate without dispute.
Special laws should be enacted to prevent unjust situations and legal disputes for consumers, reducing social losses and protecting both manufacturers and consumers as fairly as possible. A key factor will be whether the accident was caused by a fatal flaw in the autonomous driving system. If the accident was caused by a fatal flaw, the manufacturer should be held liable; if the accident was caused by a human driver without autonomous driving, the consumer should be held liable. Therefore, manufacturers should be required to install a device that stores autonomous driving records when developing cars, and consumers should be required to install a black box so that the cause of an accident can be clearly identified in the event of an accident.
Of course, enacting special laws may not be the only way to protect consumers. Manufacturers can provide traffic accident compensation provisions in the purchase contract for autonomous vehicles, and insurance companies can offer special insurance products for autonomous vehicles. However, in the absence of legal restrictions on autonomous vehicles, it is unclear whether manufacturers will provide their own compensation plans, and even if they do, if the compensation plans differ from one manufacturer to another and from one insurance product to another, consumers will have different compensation plans depending on the vehicle they purchased and the insurance company they purchased it from. This will lead to social inequality in a future society where self-driving cars will become widespread. Therefore, in Korea, a country with the rule of law, a special autonomous vehicle law is needed to serve as a kind of guideline.
So far, we have covered the legal liability issues that may arise when autonomous vehicles are commercialized. Specifically, we discussed the liability in the event of a traffic accident involving an unmanned vehicle and argued that a special autonomous vehicle law should be enacted as a way to guarantee the driver’s right to sue. Of course, the call for a special law requires mutual consultation and dialogue among many organizations, including manufacturers, academia, the financial industry, the National Assembly, and the government, and must be based on reliable data, so the short discussion in this article is not enough to justify the need for a special law. However, even if the arguments in this article are based on somewhat flimsy evidence, it is important to note that in a society where autonomous vehicles are commercialized, many ideas will need to be put forward to address liability for traffic accidents.
