Korea opens way for development and commercialization of self-driving cars

Act on Promotion and Support of Commercialization of Autonomous Vehicles, together with implementing regulations, taking effect on May 1, 2020, provides for implementation of “Level 3” (extensive but conditional autonomy) and higher.

Taken together with government strategy unveiled in October 2019, the regulations target full rollout of “Level 4” (high autonomy) self-driving in 2024.

Framework provides Ministry-level mandate to designate self-driving road sections and test zones, in step with development and building of support infrastructure.

Special provisions include an insurance requirement for test zones, and a data privacy exemption.

Start of push to Level 4 self-driving follows on announcement of autonomous vehicle safety standards in January 2020. (But full road access for Level 3 will remain restricted for now.)

Korea has started on the path to allowing self-driving cars on the roads within a few years, targeting highly automated “Level 4” cars by 2024. The (or AVA), originally passed by the legislature in 2019, took effect on May 1, 2020, putting in place an overall framework for development and introduction of such vehicles (AVs). (Pre-existing law, mainly the Motor Vehicle Management Act and the Roads Act, had only provided a fragmentary basis for temporary or case-by-case test driving.) The primary implementing regulations for the AVA (Enforcement Decree and Enforcement Regulations, or ED-ER), unveiled in draft form in February 2020, took effect at the same time as the statute, on May 1, 2020.

Together, the AVA and regulations operate to (a) define basic concepts and institute a statutory base for building self-driving car infrastructure; (b) provide administrative authority, for the Ministry of Land, Infrastructure & Transportation (MOLIT), to designate “self-driving sections” or stretches of public roads; (c) provide government authority and impetus to designate “testing zones” for higher autonomy AVs, including to supplement supporting systems and mapping; and (d) provide ancillary rules requiring some minimum insurance coverage in testing zones, and allowing for latitude in use of personal data so long as anonymized.

Before this starting push toward a self-driving ecosystem, MOLIT had unveiled on January 6, 2020. It is worth noting, however, that full Level 3 operation remains restricted in Korea: Despite reports in January of impending sale of Level 3 cars by July 2020, current law would not permit everyday road access for full Level 3, that is, operation without intermittent intervention by driver. (“Levels” referred to in this bulletin are based on the recognized SAE classification.) Designation, and ultimately expansion, of roads and zones for Level 3 and up must await further developments pursuant to the AVA and ED-ER, with the first test zone designations slated for late this year.

Summarized below are the key features of the AVA framework.

1.        Principal concepts defined; infrastructure targeted

The AVA institutes key concepts for the AV regulation framework, starting with “autonomous vehicle” and extending to the contemplated infrastructure. The terms “autonomous vehicle”, and “partly autonomous vehicle” versus “fully autonomous vehicle”, are defined straightforwardly in terms of whether the vehicle is capable of being operated without driver (or passenger) involvement, or instead is incapable of operation by the autonomous system alone and must have driver monitoring or other involvement. (Prior law left important aspects vague, including by omitting a distinction between partly versus fully autonomous.)

The AVA and ED-ER introduce the concept of an “autonomous driving support [or cooperation] system”. This involves an “intelligent” connected system to enhance the efficiency and safety of self-driving technology, relying on communication with features of the transport infrastructure and network. The AVA also defines “high resolution road map”, to provide location data usable in AV operation, and the ED-ER calls for mapping data, accommodating 3D representation and standardized formats, to enable spatial information processing as needed for safe AV operation.

As these definitions would suggest, the AVA further gives MOLIT the express authority to take steps to build infrastructure comprising an autonomous driving support system, and to create and maintain up-to-date high resolution road mapping, including in road sections and test zones that are to be designated. (MOLIT may further offer the road mapping to the public without charge.).

2.        Designation of self-driving road sections

The AVA authorizes MOLIT to designate “autonomous driving sections” of public roads, depending on the presence of the necessary infrastructure. Infrastructure of roads so designated must be equipped with a sufficient “autonomous driving support system” (see above), as well as also minimum roadfeatures or facilities (dividers, signage and so forth). (Impliedly, the government may, in the process of exploring roads for such designation, work with public and private sector to help build and/or supplement the system; however, so far, road section designation, unlike test zone designation discussed below, has not been furnished with an explicit structure for local cooperation.) Companies that manufacture (or assemble) or import AVs will be required to incorporate in the AV systems the current designations of applicable road sections – geofencing.

So far there has been no concrete indication of timeline for designation of roads under this part of the AVA framework, unlike for the designation of test zones (see below).

3.        Designation of test zones

Apart from earmarking stretches of road for self-driving, MOLIT may designate testing zones, each for a period of up to 5 years, upon application by local government authorities, either municipal or regional. An application by any such locale would include safety-related planning, performance targets, proposed period and other plans. The zones would accommodate trial commercial operation of AVs as well as R&D testing per se. Each designated zone, as such, would be regulated by the local government, and MOLIT may form a safety panel including local government, police and highway authorities. As noted in part 1 above, the AVA contemplates government building of infrastructure to support and bolster the safety and other features of AV operation in a given zone.

According to a MOLIT , MOLIT’s plan is to designate 3 such zones by November 2010. As yet there is no specific indication of candidate areas under consideration. (Sejong City seems likely to apply for a zone designation, given that it obtained a related type of designation under pre-existing law.) At least in principle, in areas so designated, test operation of Level 4 as well as Level 3 AVs should be permissible, although, clearly, a continuing constraint will be the assessment of the sufficiency, for safety purposes, of the infrastructure in the locale.

As an important feature of the framework, AV operation in the designated test zones may be exempted from certain general restrictions on transportation. Among other things, in the designated zone, an AV may transport passengers for a charge, and a transportation line may be run, without need of the bus or taxi license that would generally be required, subject to approval by MOLIT (and a special permit in case of a transportation line). (Thus the framework would offer an exception to general restrictions prohibiting Uber-style non-taxi paid transport.) Paid freight transport by AV in the designated zone will also be possible, subject to MOLIT approval. Operation of AVs may be exempted from general safety standards, subject to separate inspection and approval.

Persons wishing to operate an AV in a given zone, for commercial trials or R&D testing, may apply to MOLIT to confirm that they fall within permitted operation under these regulations.

Insurance: In case of test operation of AVs in a designated testing zone, the operator will be required to carry liability insurance, including coverage of KRW 1 billion (around USD 850,000) for property damage, among other things.

4.        Exemption from general data privacy rules in context of AV operation, subject to anonymization

Operation of AVs will certainly entail collection and use of personal information, which in general would be subject to fairly rigorous restrictions, including extensive disclosure and consent requirements, under Korea’s data protection laws. (The scope of such restricted information may, clearly, include pedestrians and other drivers, as well as the drivers of the AVs.) The AVA, however, provides for an exemption, from those data restrictions, for collection and use of personal information in the course of operation of AVs, provided that the information is anonymized.

Already, in basic principle, personal information ceases to be such, once it is anonymized. The point of the AVA provision is to establish that, in context of AV operation, such data will not necessarily trigger general data protection requirements before it is anonymized. However, this also does not mean that use of the data is unconstrained throughout that interval. That is, the AVA does not, by itself, clarify what scope of handling of such data is permitted, and to what extent, before anonymization is done – for example, whether transfer of personal data overseas, for anonymization there, would be permitted (without need of data subject consent) notwithstanding other general restrictions to the contrary.

In sum, the AVA and accompanying regulations set up a broad, starting framework for eventual commercialization of AVs, with a view to self-driving cars up to Level 4 hitting the roads in earnest as early as 2024. First main steps, scheduled for 4Q this year, will include the designation of test zones, which should become open to AVs in step with the envisioned building of supporting infrastructure. Clearly there are various dimensions of the framework that remain to be supplemented. Further, the statute is, at least for now, silent on issues that loom for self-driving transportation, in Korea as elsewhere, such as questions of allocation of liability in case of accidents (the AVA only going so far as to stipulate a narrow insurance requirement). However, the new law offers a significant degree of optimism for a radical advancement in mobility in Korea, over the coming 3 to 4 years.