[1] The case holding that the head of a blood center is a management and operator of the blood center in light of the financial management of the blood center and the authority exercised by the head of the blood center

[2] The case holding that where an inspector belonging to a blood center ships out the unqualified blood and caused the victims who have been affected by hepatitis C, etc. under the wrong test of blood collected by an examiner of the blood center, the blood director shall be liable for the injury caused by occupational negligence

[3] The case holding that it cannot be determined that the director of the blood center has a duty of care to the director of the test division under the jurisdiction of the blood center about the accuracy of blood test results and the

[4] In a case where the director of the blood division recognizes the liability for the crime of bodily injury caused by occupational negligence, whether the director of the medical division should be held liable for the crime of bodily injury caused by occupational negligence (negative)

[1] Article 19 of the Blood Management Act / [2] Article 268 of the Criminal Act / [3] Article 268 of the Criminal Act / [4] Article 268 of the Criminal Act

Defendant 1 and 15 others

Defendant and Prosecutor

Law Firm Han-soo et al.

Seoul Central District Court Decision 2006No690 Decided August 29, 2006

Each appeal shall be dismissed.

1. As to Defendant 1 and 9’s grounds of appeal

A. Violation of the Blood Management Act by the above Defendants

(1) The court below, based on the adopted evidence, found that each of the blood banks of this case is operated independently of the special accounts as agencies belonging to the blood business headquarters established by the Korean Red Cross with permission from the Minister of Health and Welfare in order to conduct blood management work, and the president has directed and supervised its employees in accordance with the blood business headquarters's policy, and has exercised various authority, such as temporary adjustment and division of duties and implementation of duties as prescribed by the blood center's regulations with regard to detailed original affairs. The Korean Red Cross has determined that the person who manages and operates the blood center is not the founder of the blood center and it is reasonable to see that the fact-finding and judgment of the court below are correct, and there is no error in the misapprehension of legal principles as to the person who misleads the facts in violation of the rules of evidence or manages and operates the blood center under Article 19 of the Blood Management Act.

(2) In addition, the court below found facts as stated in its decision after compiling the adopted evidence, and determined that the above defendants' entry of personal information into the RATS system, which was enforced at the time of collecting each of the instant blood, cannot be said to have confirmed the eligibility of blood unless they inquire about blood donor's blood donation experience and the result of the previous blood donation at the time of collecting blood. In light of the records, the court below's fact-finding and determination are just and acceptable, and it cannot be said that there were errors in matters of misconception of facts in violation of the rules of evidence or in misunderstanding of the legal principles on the violation of Article 19 of the Blood Management Act.

B. The defendant 1 to 4's injury by occupational negligence

The court below, after compiling the adopted evidence, found facts as stated in its decision, and found that the above defendants collected blood from blood donors without confirming the eligibility of blood, and as long as the inspectors of blood banks delivered the unqualified blood under the wrong test of blood collected by them, and caused the victims of blood transfusion to suffer injuries caused by hepatitis C infection, etc., the above defendants, the blood center head, cannot be exempted from the liability for the crime of injury by occupational negligence. In light of the records, the court below's fact-finding and judgment also are just and acceptable, and there are no errors in matters of misconception of facts in violation of the rules of evidence or by misapprehending the legal principles on the crime of injury by occupational negligence.

2. As to Defendant 15’s ground of appeal

A. Whether the above defendant erred in blood test

In full view of the adopted evidence, the court below held that the above defendant and the non-indicted 1 worked together at the time of the crime of this case, but it is sufficiently recognized that the above defendant committed a mistake that the blood of each of the above blood donors was mistakenly determined as having been misunderstanding that the above blood was a voice for hepatitis C, by changing the test value from other display displays, such as the time when the first trial was conducted, while examining the blood body of the non-indicted 2, 3, and 4, which were blood donors. In light of the records, the court below's fact-finding is just and acceptable, and it cannot be said that there was an error of misunderstanding the facts against the rules of evidence.

B. Whether the right of prosecution has been abused or the right to equality has been infringed

We cannot accept the allegation in the grounds of appeal purporting that the above defendant committed a mistake in blood tests as above, and that the prosecutor arbitrarily exercised his/her authority to prosecute the defendant in order to give a substantial disadvantage under any intention in this case, barring any circumstance to deem that the prosecutor had exercised his/her authority to prosecute the defendant. As such, the prosecutor did not prove that he/she did not have inspected the blood of each blood donor at the time of the above blood testing, thereby infringing the defendant's right to equality as an abuse of public prosecution power.

(c) Expected possibility;

In the process of collecting blood from blood donors, there is no system to exclude unqualified blood in advance, and the inspectors belonging to blood banks must conduct inspections exceeding 1,500 cases a day, and the examination process is complicated and difficult, just because it is alleged in the grounds of appeal, it cannot be said that there is no possibility that inspectors would not be in breach of the duty of care required in the course of the examination. Thus, the argument in the grounds of appeal on this point cannot be accepted.

3. As to the Prosecutor’s Grounds of Appeal

A. The defendant 11's injury by occupational negligence

(1) The court below held that the "verification of the eligibility of blood (the "verification of the blood donor's blood donation history and the inquiry of the previous test result at the time of blood donation" under the Enforcement Rule of the same Act)" under Article 8 (1) of the former Blood Management Act (amended by Act No. 7145 of Jan. 29, 2004) shall be conducted by a blood center, separately from the test procedure for the eligibility of blood under the same paragraph, can be determined to ensure the appropriateness of blood management in order to ensure the safety of blood, and thus, it shall not be required to confirm the eligibility of blood as part of testing and inspection by any other department than a testing division according to the specific work division inside the blood center. In light of the provisions of the relevant Acts and subordinate statutes and the records, the judgment of the court below is just and acceptable, and it cannot be said that there is an error of law by misunderstanding the facts contrary to the rules of evidence or by misunderstanding the legal principles on the scope of duty of care required of an inspector belonging to the blood center.

(2) The court below held that even if the above defendant, at the time of the blood testing of this case, carried the body in violation of the internal guidelines, such as the standard business procedure of Seoul Southern Blood Center, which provide that the body shall automatically take the body using the automatic test cycle, such violation of the guidelines cannot be deemed as any negligence immediately, and even if there is a high possibility of an inspection error at the time of manual distribution compared with the automatic test, such circumstance alone cannot be readily concluded that the above defendant caused an error in the prosecutor conducted by the above defendant. Since it cannot be ruled out that the victim might have been infected with hepatitis C due to other causes, it cannot be said that the above defendant committed the same error as the facts charged without reasonable deliberation. In light of the records, the judgment of the court below is just and acceptable, and contrary to what is alleged in the grounds of appeal, it cannot be said that the above defendant failed to exhaust all necessary deliberations as to whether there was an error in the result of the examination of the blood of the victim with manual distribution, or whether the victim was infected with hepatitis C due to other causes, or that there was no error by mistake or omission in the judgment.

B. The defendant 10, 12, 13, 14, and 16's injury by occupational negligence

(1) The court below held that the above defendants, as the chief of the blood center of this case, were delegated with approval authority on the disposal of blood test results from the chief of the blood center of this case, and that the inspector did not directly participate in the test process and examined and approved only the compliance with the test value and the criteria for determining food and training, but the chief of the inspection division of the blood center is merely an administrative position. In light of the general blood test level and environment at the time of this case, and the situation where the inspector with qualifications for clinical officers performed the professional test independently, it is difficult to conclude that the above defendants have a duty of care to supervise and verify whether they have a direct inspector at the site of the examination, or to secure accuracy of the test results through substantial verification procedures, such as the deelae system, and the more Bable system, etc., and therefore, it cannot be viewed that the prosecutor and the head of the blood center of this case did not have any duty of care as part of the test, and therefore, it cannot be viewed that they violated the above defendants' duty of care, as alleged in the grounds for appeal and the records.

(2) As a manager and operator of a blood center, the head of the blood center responsible for preventing the release of unqualified blood through the verification and inspection of the eligibility of blood, and the head of the inspection division in charge of administrative affairs assigned according to the internal division of affairs of the blood center, shall be different from the contents of the duty of care required according to their status and the contents of the duties. Therefore, as long as the victims suffered bodily injury caused by infection due to the release of unqualified blood due to the error of the inspector's blood examination, the head of the inspection division in charge of occupational injury must recognize the liability for the crime of causing bodily injury by occupational negligence as a matter of course to the director of the blood center.

4. Conclusion

Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)