Tehyok Daniel Yi
Sr. Foreign Counsel, Seoul
Tel+ 82 2 528 5512
Kyu Sang Hwang
Tel+ 82 2 528 5635
Woo Rim Lyou
Foreign Attorney, Seoul
Tel+ 82 2 528 5914
In April 2018, the Ministry of Land, Infrastructure and Transport (the “MOLIT”) announced its “Roadmap for Establishing a Smart Transportation System for Commercialisation of Autonomous Vehicles” (the “Smart Transportation Roadmap”). According to the Smart Transportation Roadmap, the MOLIT plans to finish its preparations for commercializing autonomous vehicles by 2018, commercialize Level 3 autonomous vehicles (based on SAE International’s taxonomy of autonomous vehicles) by 2020, and finish preparations for Level 4 and Level 5 autonomous vehicles by 2022.
The Smart Transportation Roadmap sets forth four different areas of development that are the current focus of the Korean government: (i) technology, which includes the construction of the so-called “K-City”, a testbed for testing the technology and infrastructure for operating autonomous vehicles, fully equipped with simulated weather conditions, 5G telecommunications network, and a data center for collecting and using big data; (ii) infrastructure, which includes the construction of testbeds in various areas of the country for verifying and certifying communications and performance requirements, equipping highways with the technology required for autonomous vehicles, and the establishment of a detailed navigation and mapping system sector—all with the goal of making all freeways autonomous vehicle-compatible by 2020 and all roads in the country compatible by 2030; (iii) cooperation between the public sector and the private sector; and (iv) raising the public’s awareness of the development of autonomous vehicles through opportunities to experience autonomous vehicles on a large scale. The first of such awareness programs in a large scale was the test driving simulations during the 2018 PyeongChang Winter Olympic Games.
The MOLIT’s goals for 2018 include drafting proposals for safety standards and insurance regulations regarding autonomous vehicles by the end of the third quarter, which will be codified into statutes by 2019.
A. Regulatory and policy changes – Government ministries
In May 2015, three Government ministries developed and announced the “Plan for Supporting the Commercialisation of Autonomous Vehicles.” The plan roughly sets out the role of each ministry, as follows: MOLIT is tasked with developing laws and regulations required for autonomous driving, aligning the development and commercialisation of autonomous vehicles with existing laws and international standards, as well as certifying newly developed technologies prior to commercialisation. The Ministry of Trade, Industry, and Energy supports the development of technologies required for autonomous vehicles. Finally, the Ministry of Science and ICT (Information and Communication Technology) supports the development of infrastructures for autonomous vehicles. In practice, however, the roles of the three ministries are more or less mixed and there is no single go-to entity for each issue.
In particular, the MOLIT leads most discussions and policy implementations. The MOLIT adopted a temporary operation licensing process for those wishing to operate autonomous vehicles for testing and research purposes, which led to a blossoming of test driving of autonomous vehicles. As of May 2018, a total of 45 autonomous vehicles developed by manufacturers, universities, and technology companies are being test-driven on roads across the country.
The MOLIT also founded the “Future Forum for Autonomous Vehicle Convergence” in June 2016, which comprises approximately 60 participating organisations from the industry, academia, and research organisations, as well as seven government agencies. The Forum collects opinions from the public to derive improvements to law and policy, and develop research and development opportunities for technical innovation.
The previously referenced K-City is in full development. As of the end of 2017, the freeway portion of the K-City was opened, and all portions of it will open within 2018.
The MOLIT also plans to make all preparations necessary for the operation of autonomous small-sized buses by 2020 and large buses by 2021.
B. Legal developments – The MOLIT and the National Assembly
In August 2015, the Motor Vehicle Management Act was amended (came into effect in February 2016) to include a definition of “autonomous driving motor vehicle”, which was then defined as a “motor vehicle which can self-operate without any operation by its driver or passengers.”
The above amendment also permits “a person who intends to operate an autonomous driving motor vehicle for the purposes of testing/researching” to do so.
The Motor Vehicle Management Act also permits a prospective autonomous vehicle operator to operate an autonomous vehicle for testing and research purposes without vehicle registration, as long as the operator acquires a temporary operation permit from the Minister of MOLIT. Article 27(5) of the Motor Vehicle Management Act requires the holder of such temporary operation permit to report to the Minister of MOLIT the driving history and other information related to such operation, as well as information on any traffic accidents. The Minister of MOLIT can conduct performance testing and order a temporary ban on the operation of the autonomous vehicle, if such testing reveals safety concerns. Further, the MOLIT amended the Enforcement Rules of the Motor Vehicle Management Act to include detailed rules on the application procedure and the forms needed for acquiring the temporary operation permit and the requirements for issuance of the permit. The requirements for a temporary operation permit are:
- detection mechanism in case of malfunction;
- mechanism that permits the driver to terminate autonomous driving mode at any time;
- refraining from driving in certain areas for safety reasons, as MOLIT determines and notifies;
- mechanisms for storing operation information and output of the same;
- notice on the vehicle that the vehicle is an autonomous vehicle;
- technology preventing remote access or hacking; and
- any other requirements the Minister of MOLIT may deem necessary).
The MOLIT provides additional details to the aforementioned requirements through its “Regulations on Safe Operation Requirements and Test Operations, Etc. of Autonomous Vehicles”, further fleshing out the following obligations of autonomous vehicle drivers, manufacturers, performance testers, and others involved with the manufacture, management, or driving of autonomous vehicles, including: requirements for manufacturing autonomous vehicles (Article 3); liability and insurance obligations (Article 4); preparatory test driving (Article 5); filing obligations (Article 6); testing and research plan (Article 7); obligation to attach notice that the vehicle is an autonomous vehicle (Article 8); performance testing (Article 9); operation interface requirements (Articles 10-12); detection and notification of malfunction (Articles 13-14); handover (Article 15); speed limit and collision prevention function (Article 16); recording of driving records (Article 17-18); and miscellaneous matters (Articles 19-22). This opened the door for various private entities to test autonomous vehicles. One example is SNUver, an autonomous vehicle developed by Seoul National University, which has been operating an autonomous shuttle since July 2017 in Pangyo, a city close to Seoul. Hyundai Motor and Hanyang University are also developing and testing autonomous driving vehicles in earnest.
There are many proposed statutory amendments that are intended for the smooth transition into the era of autonomous vehicles, such as:
Proposed Amendment to the Motor Vehicle Management Act: Permitting a temporary operator of an autonomous vehicle to report to the Minister of MOLIT the status of testing and research on autonomous vehicles, and the Minister of MOLIT to receive such reports and to review them (amendment proposed on July 6, 2017);
Proposed Amendment to the Motor Vehicle Management Act: Permitting governors of provinces and mayors to grant provisional autonomous vehicle permits, in addition to the Minister of MOLIT (amendment proposed on July 11, 2017);
Proposed Amendment to the Road Traffic Act: Broadening the application of Lidar and automated parking functions as the applicable technologies develop (amendment proposed on August 31, 2017);
Proposed Amendment to the Act on the Protection, Use, Etc. of Location Information: Permitting the collection and use of location information, as long as the location information does not include personal data (amendment proposed on February 28, 2017);
Proposed Amendment to the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (the “Network Act”): De-identifying, deleting, or substituting personal data to enable the accumulation of big data and permitting the data to be transmitted to control towers or other monitoring systems (various proposed amendments by multiple members of the National Assembly, respectively on September 6, 2016, December 26, 2016, and April 5, 2017); and
Proposed Amendment to the Product Liability Act: Adding “software” as a type of product subject to strict liability (amendment proposed on September 22, 2017).
While the above proposed statutory amendments have not yet been passed into law and there will likely be further changes to the proposed amendments before they are (if at all), they do highlight the degree of interest with which governmental actors—members of the National Assembly in this case—are viewing the rise of autonomous vehicles.
C. The road ahead
Various legal and regulatory obstacles still remain on the path from today’s “successful preparations for autonomous vehicles” to tomorrow’s “widespread commercialisation of autonomous vehicles.” There are some impediments that are specific to Korea for its unique, if not rare, laws or regulations.
One potential obstacle in the development and commercialisation of autonomous vehicles in Korea is its strong personal data protection laws. Under Korean law, even if a piece of information cannot be used to identify a natural person, if various pieces of information can “easily be combined to lead to identification of a natural person” such information is deemed personal data, which is strongly regulated. Naturally, autonomous driving requires system-level harmonization both between the vehicle and the control tower and between one vehicle to another. Such harmonization requires collection of motor vehicle information, which, in turn, requires collection of personal data under Korean law. In order to resolve such issues, the National Assembly is discussing various amendments to the Network Act, one being the amendment on de-identifying, deleting, or substituting personal data with other information, as aforementioned in III.4.(e).
Also, the strict personal data protection laws may hinder accumulation of big data, as well, because driver information, driving pattern analysis, and operational history can easily be combined to identify a natural person. Collection and utilization of big data may be necessary for traffic controls in the era of autonomous driving.
Definition of Autonomous Motor Vehicle: Article 2 of the Motor Vehicle Management Act defines an autonomous motor vehicle as a “motor vehicle which can self-operate without any operation by its driver or passengers.” On the one hand, this definition if similar to Level 5 based on SAE International’s taxonomy because of the language “without any operation by its driver or passengers.” On the other hand, it is similar to Level 3 based on SAE International’s taxonomy because vehicles with certain advanced driver-assistance systems (ADAS) can “self-operate without any operation by its driver or passengers” for a certain time. Therefore, the definition in the Motor Vehicle Management Act currently lacks clarity and will need to be revised to denote more precise levels of automation.
Driver Licenses and Eligibility and Requirements: The general consensus appears to be that driver licenses will continue to be required, but with the additional requirement of showing that the driver understands autonomous driving principles and emergency response (hardware and software) techniques.
Article 82 of the Road Traffic Act prohibits certain individuals with physical or mental disabilities from driving, which prohibition may be eliminated or relaxed.
Traffic Accident Liability and Compensation: For the most part, it appears that autonomous vehicles will be required to comply with the Road Traffic Act. The Guarantee of Automobile Accident Compensation Act provides, with certain exceptions, that if a person “who operates a motor vehicle for personal use [kills or injures] another person by such operation, [then] he/she shall be liable to compensate the damages therefrom.” The lack of a reasonableness or duty of care language in this statutory language is intentional: in Korea, as in a substantial number of other jurisdictions, the driver of a motor vehicle in an accident that results in injury or death is presumed liable. However, for obvious reasons, holding the driver of an autonomous motor vehicle civilly liable for an accident is unreasonable. Therefore, it may be necessary to shift the liability to automakers, in case of malfunction, and to the government, in case of coordination failure (e.g., control tower malfunction).
In addition to such examples specific to Korea, there are many other changes other countries need to make, such as:
- Modifying insurance-related policies and appropriately shifting the burdens in those cases;
- Reorganizing automobile registration and certification standards;
- Improving security measures on autonomous vehicles, which will necessarily be connected to a network and can cause widespread harm in case of hacking or malfunction;
- Investing the appropriate level of social capital and financing into intermediate levels of automatization; and
- Strengthening consumer protection in case of malfunctioning autonomous vehicles, which can cause far greater harm than malfunctioning conventional vehicles.
In order to resolve such obstacles to automatization, the National Assembly Research Service sets forth an 11-point law and policy plan, as follows:
- Tasks for commercialisation;
- Restructuring motor vehicle certification standards and procedure;
- Revisiting the driver license policy and driver eligibility requirements;
- Using autonomous driving for improving local traffic systems;
- Promoting autonomous driving by improving infrastructure;
- Strengthening the responsibility of automakers and protecting consumers;
- Motor vehicle accident response;
- Restructuring civil liability and insurance policies;
- Reviewing whether criminal liability may be an issue;
- Promoting technologies for technological advances concomitant with autonomous driving; and
- Deriving other tasks arising from autonomous driving from administrative perspective
New industries and services:
- Preparing for changes in the passenger vehicle, freight, and transportation industries; and
- Developing and utilizing new transportation services.
For a country well known for its technological advances and innovation, Korea may have been relatively late in making legal and regulatory changes in preparation for the rise of autonomous vehicles. Without a doubt, challenges lie ahead, some particular to Korea and some others shared in common with other countries. Fortunately, the Korean government is well aware of such disadvantages and challenges, and is actively proffering plans and implementing them in earnest to make up for lost time. As a result, K-City testbed is nearing completion, PyeongChang and other test driving events were successful, and new policies have already come into effect. It is yet to be seen whether newly implemented changes and upcoming policy implementations will lead Korea’s automotive industry and its
 Norton Rose Fulbright would like to give special thanks to Nari Oh and Joy Wang for their preliminary assistance with this chapter.
 SAE Int’l, Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles (2016).
 Yeon Kyeom Kim, Ministry of Land, Transport and Maritime Affairs Approves Test Drive of Autonomous Vehicles Manufactured by Sonnet Co. … 45 Autonomous Vehicles Test Driven on Roads Across the Country, Popular Science, May 3, 2018, http://www.popsci.co.kr/news/articleView.html?idxno=1206&replyAll=&reply_sc_order_by=C.
 Motor Vehicle Management Act, Act No. 3912, Dec. 31, 1986, amended by Act No. 13486, Aug. 11, 2015, art. 2(1-3).
 Id. art. 27.
 Id. art. 27(1) (“A person who intends to operate a motor vehicle temporarily without registering it shall obtain permission for temporary operation (hereinafter referred to as ‘temporary operation permit’) from the Minister of Land, Infrastructure and Transport or the Mayor/Do [Province] Governor, as prescribed by Presidential Decree: Provided, That a person who intends to operate an autonomous driving motor vehicle for the purposes of testing/researching shall, in connection with the objects to be permitted, the devices for perceiving and warning malfunction, the devices for disabling various functions, the areas for operation and other matters to be complied by the driver, satisfy the requirements for safe operation as prescribed by Ordinance of the Minister of Land, Infrastructure and Transport and shall obtain the temporary operation permit to be issued by the Minister of Land, Infrastructure and Transport.”) (emphasis added).
 Motor Vehicle Management Act, Act No. 3912, Dec. 31, 1986, amended by Act No. 14950, Oct. 24, 2017, art. 5.
 Id. art. 6.
 Id. art. 7.
 Enforcement Decree of the Motor Vehicle Management Act, Presidential Decree No. 12208, July 1, 1987, amended by Act No. 28831, April 24, 2018, art. 26.
 Id. art. 26-2.
 Id. art. 26-2(1).
 Id. art. 26-2(2).
 Id. art. 26-2(3).
 Id. art. 26-2(4).
 Id. art. 26-2(5).
 Id. art. 26-2(6).
 Id. art. 26-2(7).
 Regulations Regarding Safe Driving Requirement and Test Driving of an Autonomous Driving Motor Vehicle, MOLIT Public Notice No. 2017-198, Mar. 31, 2017, arts. 3-22.
 Elaine Ramirez, South Korea’s First Autonomous Car Drives Like a Mom, Forbes, June 22, 2017, https://www.forbes.com/sites/elaineramirez/2017/06/22/south-koreas-first-autonomous-car-drives-like-a-mom/#354cbc472fc5.
 National Assembly Research Service, Legislative and Policy Trends and Challenges Relating to an Autonomous Motor Vehicle 45-46 (2017)
 Personal Information Protection Act, Act No. 10465, Mar. 29, 2011, amended by Act No. 14839, July 26, 2017.
 SAE Int’l, supra note 1.
 National Assembly Research Service, supra note 20.
 Although arguable, the driver of an autonomous vehicle will likely not be criminally liable because criminal liability for motor a vehicle accident requires negligence on the part of the driver, which the driver would likely not commit if the driver were driving an autonomous vehicle with a high degree of automation (i.e., Level 4 or 5). Criminal Act, Act No. 293, Sept. 18, 1953, as amended Act No. 13719, Dec. 20, 2016, art. 268 (“A person who causes the death or injury of another by occupational or gross negligence, shall be punished by imprisonment for not more than five years or by a fine not exceeding 20 million won.”).
 It may be necessary to conduct a cost-benefit analysis before investing into autonomous vehicles in the intermediate levels. On the one hand, it may be wasteful to invest substantial capital or effort into harmonizing the laws and infrastructure for intermediate levels of automatization when a subsequent level of automatization is around the corner. On the other hand, failure to fully harmonise in the intermediate levels may damage life and property in the interim phases or delay entry into the next level of automatization.
 National Assembly Research Service, supra note 20.