[2] Whether Articles 1, 46, 49, and 50 of the Framework Act on Consumers give a reasonable discretion to the Fair Trade Commission, etc. to take measures to prevent hazards to consumers due to goods, etc. provided by the business (affirmative)

[3] Whether the failure of the Commissioner of the Korea Food and Drug Administration and the Fair Trade Commission, etc. to exercise their authority under Articles 1, 51, 52, and 71 of the former Pharmaceutical Affairs Act, and Articles 1, 46, 49, and 50 of the Framework Act on Consumers violates their official duties (affirmative with qualification)

[4] In a case where the infants, infants, and their parents who purchased and used beer with asbestos, suffered mental pain by not exercising regulatory authority against the State against the Commissioner of the Korea Food and Drug Administration, etc., the case holding that it is difficult for the Commissioner of the Korea Food and Drug Administration, etc. to deem that there is no social feasibility because it is considerably unreasonable to exercise regulatory authority, such as preparing countermeasures against asbestos contained in beer's main ingredients, etc.

1. As to Defendant Republic of Korea

A. Article 1 of the former Pharmaceutical Affairs Act (amended by Act No. 932, Jan. 18, 2010; hereinafter the same shall apply) provides that “the purpose of this Act is to prescribe necessary matters so that work concerning pharmacists may be performed smoothly, thereby contributing to the improvement of the national public health.” In Articles 51, 52, and 71, the Commissioner of the Korea Food and Drug Administration (hereinafter referred to as “the head of the Food and Drug Administration”) shall require the Commissioner of the Korea Food and Drug Administration (hereinafter referred to as “the head of the Food and Drug Administration”) to prepare the methods of manufacturing, nature, efficacy, performance, quality, and storage of drugs, quasi-drugs, etc. (hereinafter referred to as “drugs, etc.”) and other necessary standards. If a person who has obtained marketing approval of drugs or a manufacturer of quasi-drugs, etc. sells, stores, displays, manufactures, or imports drugs, etc. or raw materials thereof in violation of the aforementioned standards and standards, he/she may order the person who received marketing approval or manufacturer of non-pharmaceutical drugs, etc., or to take other necessary measures.

In light of the above provisions and forms of the former Pharmaceutical Affairs Act, it is reasonable to view that each of the above provisions provide appropriate standards and standards for drugs, etc. to the extent that it does not unfairly undermine the property rights of employees engaged in the relevant industry or the autonomous market order of the relevant industry while assessing the risks of drugs, etc., and that reasonable discretion should be given to the Administrator of the Food and Drug Administration and relevant public officials to take measures to prevent risks to the lives and bodies of the people due to drugs, etc., such as the disposal of drugs, etc. in violation of such standards and standards, raw materials thereof, or drugs, etc

Meanwhile, Article 1 of the Framework Act on Consumers prescribes that "the purpose of this Act is to prescribe the rights and duties of consumers, the duties of the State, local governments and business operators, the roles of consumer organizations and relations between consumers and business operators in the free market, as well as the basic matters for comprehensively promoting consumer policies, thereby contributing to the improvement of consumption and the development of the national economy." In addition, Article 46 of the Framework Act on Consumers provides that the Fair Trade Commission may request the head of the relevant central administrative agency to take prescribed measures necessary to prevent hazards where consumers are likely to cause harm due to goods, etc. provided by business operators, and Articles 49 and 50 of the Framework Act on Consumers may order the head of the relevant central administrative agency to take necessary measures, such as the removal, destruction, repair, exchange, refund, or prohibition of manufacture, import, sale, or provision of goods, etc. provided by business operators.

In light of the contents and form of the above provisions of the Framework Act on Consumers, where it is deemed that the above provisions of the Act on Consumers cause or are likely to cause danger or harm to consumers' lives, bodies or property due to defects in the goods, etc. provided by the enterpriser, it shall be deemed that the Fair Trade Commission, the heads of central administrative agencies, and relevant public officials have given reasonable discretion to take measures to prevent hazards to consumers due to the goods, etc. provided by the enterpriser, such as recommending or ordering the prohibition of collection, destruction, repair, exchange, refund, or manufacture, import, sale, provision

Therefore, inasmuch as the above provisions of the former Pharmaceutical Affairs Act and the Framework Act on Consumers are interpreted to have granted the Administrator of the Food and Drug Administration, the Fair Trade Commission, the heads of central administrative agencies, and relevant public officials (hereinafter collectively referred to as the “Administrator of the Food and Drug Administration, etc.”) the authority to perform their duties at reasonable discretion, in light of the purport and purpose of granting such authority to the Administrator of the Food and Drug Administration, etc., the violation of official duties is unlawful only in cases where the failure of the Administrator of the Food and Drug Administration, etc. to exercise such authority is manifestly unreasonable under specific circumstances and is not socially reasonable (see, e.g., Supreme Court en banc Decision 2008Da38288, Apr. 22, 2010; Supreme Court Decision 2008Da67828, Nov. 25, 201

B. The lower court, based on its adopted evidence, acknowledged the facts as indicated in its reasoning: (i) in light of the possibility of the outbreak of serious diseases, such as waste cancer and asbestosis, if the physical change by asbestos is exposed to a short-term level above a certain level in the long-term period, determined that the possibility of the outbreak of serious diseases, such as lung cancer and asbestosis is low; (ii) in comparison with other cancer, it may occur relatively low concentration and short-term exposure; however, the outbreak rate is extremely weak to one to two persons per one million persons; (ii) most of them are occupational exposure; (iii) the outbreak rate of asbestos exposed to the environment is relatively small; (iv) it is difficult to view it as unlawful on the ground that there is no possibility that it is harmful to the human body, such as the exposure of asbestos to the site after the respiratory inflow of asbestos; and (iv) it is difficult to view it as harmful to the human body because it is not a serious level of pulmonation, such as the exposure of asbestos to the surface; and (iv) it is difficult to view it as harmful to the extent of harmful asbestos.

C. Examining the records in light of the aforementioned legal principles, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the duty or illegality of public officials under the State Compensation Act.

2. As to Defendant Korea Call Mar. 2, 201

This part of the final appeal refers to the error of fact-finding by the lower court that it is difficult to deem the Defendant Korea Call Co., Ltd. to contain asbestos in the beer, which was manufactured and sold before subdivision. However, the fact-finding and the selection and evaluation of evidence on the premise thereof belong to the discretionary power of the fact-finding court, unless it goes against logical and empirical rules and thus goes beyond the bounds of the principle of free evaluation of evidence. In this case where the reasoning of the lower court’s fact-finding cannot be found even if examining the reasoning of the lower judgment in light of the record, it is difficult to accept the said final appeal merely because it criticizes matters falling under the discretionary power of the lower court.

3. As to the remaining Defendants

A. Ground of appeal as to the occurrence of mental damage

The lower court determined to the effect that, in light of the fact that the occurrence result of a disease, etc. caused by the use of asbestos in the form of direct exposure to a specific level or higher in the long term, ① the possibility of the outbreak of a serious disease, such as waste cancer or asbestosis, if the physical change caused by asbestos is exposed to a specific level or higher in the long term, ② the degree of exposure to an asbestos is low compared with other cancer, etc.; ② the degree of exposure to an asbestos is relatively low and it is possible to cause a short-term exposure to an asbestos, but most of them are less than one to two persons per one million persons. The outbreak rate is extremely low; ③ the occurrence rate of asbestos exposed to the environment is deemed relatively low; ③ the possibility of the exposure of asbestos to a specific degree or higher in the form of exposure to the human body; ④ the probability of the exposure of asbestos in the form of exposure to an asbestos in the form of exposure to a specific level or higher in the form of exposure to the human body, and ④ it is difficult for the Plaintiffs to view that there is no significant difference in the exposure to a specific level or higher level of exposure to the public use.

Examining the records in light of the relevant legal principles, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on mental damage.

B. Grounds of appeal on the establishment of product liability and tort liability

As seen above, in this case seeking compensation for mental damage only to the plaintiffs, unless it is acknowledged that there was mental damage to the plaintiffs, the product liability of the defendants constitutes manufacturing defect not in design defect but in the beliviers manufactured and sold by Defendant Bobimeri Ltd., U.S., U.S. LEL, sexually organic medicine corporation, and the non-party, and thus, the defendants are responsible for product liability for the products containing asbestos in beliviers. Further, since the act of supplying a ice containing asbestos in the U.S. medicine industry and the act of manufacturing beliviers made and sold by the non-party constitutes a manufacturing defect not in design defect, the above defendants are also liable for product liability. Furthermore, the argument in the grounds of appeal that the act of manufacturing beliviers is unlawful cannot be accepted without further determination.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Ko Young-han (Presiding Justice)