2014 Gohap 525054 Claims for Damages

National Health Insurance Corporation

1. A stock company;

2. B stock company:

3. C Stock Company:

4. Daehan:

oly 23, 2020

2020, 11,20

1. All of the Plaintiff’s claims against the Defendants are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

The Defendants jointly pay to the Plaintiff 53,319,53,950 won with 20% interest per annum from the day following the day of service of a copy of the instant complaint to September 30, 2015, 15% interest per annum from the next day to May 31, 2019, and 12% interest per annum from the next day to the day of full payment.

1. Basic facts

A. Status of the parties

1) The Plaintiff is an insurer of the national health insurance under Article 13 of the National Health Information Society Act, who performs duties such as qualification management of the health insurance, collection of insurance premiums, etc., management of the insurance benefits, and payment of the insurance benefits costs, etc., as prescribed in each subparagraph of Article

2) Defendant A Co., Ltd. (hereinafter referred to as “Defendant A”) was established as EM in April 1987, and was changed to the trade name as of December 2002 through FM in December 1989, and was manufactured and sold tobacco listed in attached Table 1, such as “G”, “H”, and “I,” while carrying out the business of manufacturing and selling tobacco, manufacturing and selling materials related to tobacco business, and tobacco growing guidance.

3) Defendant B Co., Ltd. (hereinafter “Defendant B”) was established in March 1989 and was engaged in the business of manufacturing and selling tobacco, etc., and imported, manufactured, and sold tobacco listed in attached Table 2, including J, K, and L.

4) Defendant C Co., Ltd. (hereinafter “Defendant C”) was established in September 1990 and is engaged in the business of importing, distributing, selling, etc. tobacco and its related articles. Defendant D Co., Ltd. (hereinafter “Defendant D”) was established in September 2001 and was engaged in the business of distributing tobacco, raw materials, tobacco-related products, etc., and was manufactured and sold tobacco listed in attached Table 3, such as “M”, “N”, and “N.”

B. Payment of insurance benefit costs by the Plaintiff

1) Attached Table 4 - Attached Table 4 - [Attachment 4] 3,465 persons (hereinafter referred to as "persons subject to this case") are those who, alone or in duplicate, smoked tobacco manufactured and sold by the Defendants (imported by the Defendants) and have more than 20 smoking power.

2) The subjects of the instant case were diagnosed of the pulmonary cellam or the balo cellam (hereinafter referred to as “the instant disease” when referring to the balo cellam, the balo cellam, and the balo cellam cancer among the balotoam cancer).

3) When the instant subject was diagnosed of the instant disease from around 2003 to 2012, the Plaintiff disbursed the sum of KRW 53,319,553,950 as indicated in the Table ‘The instant case’, as follows:

A person shall be appointed.

4) Detailed matters concerning the smoking history of the subject of the instant case, the type of the disease that occurred to the subject of the instant case, the amount of the Corporation charges paid by the Defendants in relation to the subject of the instant case, and the tobacco sponsed by the subject of the instant case among tobacco imported, manufactured, and sold by the Defendants are as indicated in attached Table 4 â……………

[Ground of recognition] Facts without dispute, Gap's entries, Gap's evidence Nos. 45, 80, 89, 143, 215 (including branch numbers; hereinafter the same shall apply) and the purport of whole pleadings

2. Determination as to Defendant A’s defense prior to the merits

A. As to the defense by a person with no legal capacity to file a lawsuit

1) Summary of the defense

The filing of the instant lawsuit is irrelevant to the scope of the Plaintiff’s business prescribed by the National Health Insurance Act. Therefore, the instant lawsuit is unlawful as it was filed by a person who has no capacity to exercise rights.

2) Determination

A) The Company’s ability to exercise rights is limited by the law that served as the basis for the incorporation of the Company and the purpose of its articles of incorporation, but an act within the scope of its purpose is not limited to the purpose itself as stipulated in its articles of incorporation, but to the extent that the act directly and indirectly necessary for the fulfillment of that purpose (see Supreme Court Decision 2009Da63236, Dec. 10, 2009).

B) Article 14(1)3 and 5 of the National Health Insurance Act provides that “management of insurance benefits” and “payment of insurance benefits costs shall be made as the Plaintiff’s duties. However, the Plaintiff brought the instant lawsuit in order to recover damages by asserting that the costs of insurance benefits have been incurred due to the Defendants’ tort. Therefore, it is reasonable to deem that the instant lawsuit is an act directly or indirectly related to the “management of insurance benefits” or “payment of the costs of insurance benefits.” The evidence submitted by the Defendant and A alone is insufficient to recognize that the instant lawsuit by the Plaintiff exceeded the purpose or scope of duties under the National Health Insurance Act, and there is no other evidence to prove otherwise.

C) Therefore, Defendant A’s defense prior to this part of the merits is without merit.

B. As to the abuse of right of action

1) Summary of the defense

The Plaintiff filed the instant lawsuit not for remedy of infringement, but for non-smoking campaign. Accordingly, the Plaintiff’s instant lawsuit constitutes abuse of judicial system for purposes other than remedy of infringement of rights, and thus, it is unlawful as it abused its power.

2) Determination

The Plaintiff primarily sustained damages from the Defendants. The Plaintiff sought compensation for damages by asserting that it sustained the insurance benefit costs. The Plaintiff exercise the right to indemnity under Article 58 of the National Health Insurance Act. The evidence submitted by the Defendant A alone is insufficient to recognize that the Plaintiff abused the judicial system for purposes other than the remedy for infringement of rights. Therefore, the defense on the merits of this part has no merit.

C. As to the defense that there is no legal interest

1) Summary of the defense

Even if the Plaintiff paid insurance benefits related to the subject of the instant case, it is merely paid out of the funds raised with tobacco charges paid by the Defendants, and thus cannot be deemed as having caused damage to the Plaintiff. Therefore, the Plaintiff has no legal interest in filing the instant lawsuit.

2) Determination

In the event that the Plaintiff’s primary cause of claim or conjunctive cause of claim is accepted, the Plaintiff gains legal interest from receiving the amount paid with the insurance benefit cost. Therefore, it is difficult to deem that there is no legal interest to bring the instant lawsuit against the Plaintiff. Moreover, whether the Plaintiff suffered loss due to the Defendants’ act falls under the matter that should be determined within the final scope of the lawsuit. Accordingly, Defendant A’s objection to this part of the main claim is without merit.

D. As to the assertion to the effect that it is unlawful because it falls under a discretionary litigation unit

1) Summary of the defense

The Plaintiff is seeking direct compensation as a party’s status by packing the damages suffered by the subject of the instant lawsuit as one’s own damages. Therefore, the substance of the instant lawsuit is unlawful as it constitutes a discretionary litigation.

2) Determination

The Plaintiff’s primary cause of action is clear to exercise the Plaintiff’s right to claim damages on the premise that the Defendants suffered losses incurred in paying insurance benefits. The Plaintiff’s primary cause of action is clear to exercise the right to claim reimbursement under Article 58 of the National Health Insurance Act. Therefore, it is difficult to view the instant lawsuit as a discretionary action in which the instant lawsuit is not legally allowed (see Supreme Court Decision 2009Da23160, Sept. 13, 2012). Therefore, Defendant A’s defense on the merits of this part is without merit.

3. Determination as to the primary cause of the claim (the direct victim and the defendants' claim for damages)

A. Summary of the primary cause of the claim

The instant disease occurred to the subject of the instant case due to the defect of tobacco imported, manufactured, and sold by the Defendants and the Defendants’ other illegal acts, and the Plaintiff spent KRW 53,319,53,950 in total as the expenses for insurance benefits (construction charges) in relation to the subject of the instant case. Ultimately, the Plaintiff incurred damages to the Plaintiff due to the Defendants’ tort. As such, the Defendants, as joint tortfeasor, are liable to compensate the Plaintiff for damages equivalent to the expenses for the said insurance benefits.

B. Determination

As seen earlier, the Plaintiff paid KRW 53,319,53,950 in total as the expense for insurance benefits in relation to the instant disease. However, the Plaintiff’s primary cause of claim seeking damages equivalent to the above amount for the following reasons is difficult to accept.

1) In order to establish liability for damages caused by a tort, the "damage" is not only required to actually occur to the victim, but also the causal relationship between the perpetrator's illegal act and the damage should be recognized. The "damage" refers to the infringement of legal interests protected by the law that the victim had enjoyed. It cannot be deemed that the victim's property was reduced or the victim's property disadvantage was caused by any act, and it constitutes tort liability only when the decrease of property or the damage to the victim's property cannot be deemed as constituting tort liability. Therefore, if the victim is required to assume any decrease in property or any disadvantage in property by contract or law, etc., it cannot be deemed that the decrease in property or the damage to the victim is not caused by the illegal act of the perpetrator, but if it is merely caused by the third cause relationship, the causal relationship between the illegal act and the damage cannot be deemed as established.

In light of the above legal principles, the Plaintiff is an insurer of the health insurance supervised by the Minister of Health and Welfare (Article 13 of the National Health Insurance Act); and merely a person legally obligated to pay insurance benefits if an insured incident provided medical services or medical care arises for the insured’s disease, injury, childbirth, etc. (Article 14(1)5 of the National Health Insurance Act). Furthermore, the Plaintiff collects insurance premiums from a person liable to pay insurance premiums to cover the expenses incurred in the health insurance program (Articles 7 and 69 of the National Health Insurance Act). If a policyholder fails to pay insurance premiums, it may demand the payment thereof and collect the insurance premiums in the same manner as delinquent national taxes are collected (Article 81 of the National Health Insurance Act); and the State provides the Plaintiff with an amount equivalent to 14/100 of the estimated amount of insurance premiums for the pertinent year within budgetary limits (Article 108(1) of the National Health Insurance Act). Moreover, it is difficult to view that the Plaintiff’s performance of the insurance benefits by the insured or his/her dependent under the National Health Insurance Act is an insurance benefit-related act.

2) Article 682(1)4 of the Commercial Act provides for general provisions concerning subrogation of an insurer, and Article 58 of the National Health Insurance Act provides that “Where an insured person or his/her dependent has provided insurance benefits due to an act committed by a third party, the Corporation shall obtain the right to claim damages from a third party to the extent of the expenses incurred in paying the benefits.” In addition to Article 682(1) of the Commercial Act and Article 58 of the National Health Insurance Act, the reason why the insured, even after having received the insured amount from the insurer, holding and exercising the right to claim against a third party is the result of giving benefit beyond the compensation for damages, and it is unreasonable to exempt the insured from liability due to the receipt of the insurance amount by a third party who is the liable for compensation, and thus, to vest in the insurer (see, e.g., Supreme Court Decision 87Meu169, Apr. 25, 1989). Ultimately, the insurer cannot be viewed as having acquired the above provision concerning subrogation against the insurer under the premise that the insurer directly paid the insurer’s compensation for damages.

3) Meanwhile, the Plaintiff’s right under Article 58 of the National Health Insurance Act is the right to claim damages against a third party against a policyholder who received the insurance benefits within the scope of expenses incurred in paying benefits (see, e.g., Supreme Court Decision 2012Da200028, Dec. 13, 2012). Therefore, the perpetrator may still assert the Plaintiff’s defense, such as extinctive prescription and comparative negligence, which may be asserted against the victim. However, in cases where the Plaintiff paid the insurance benefits, if it is interpreted that the Plaintiff acquires the right to claim damages as a victim separately from the right prescribed in Article 58 of the National Health Insurance Act, the perpetrator would be deemed to be in a disadvantageous position that no longer claims the same defense against the Plaintiff, which directly claims the victim.

4) On the other hand, the Plaintiff asserts that, based on the Supreme Court’s decision (see Supreme Court Decision 81Meu737, Apr. 13, 1982, 1982, the Plaintiff may claim damages against the Defendants, insofar as the Plaintiff paid insurance benefits on the grounds of tort committed by the Defendants, insofar as the Plaintiff was entitled to claim damages against the Defendants.

However, as part of the performance of the duty to support the victim, the expenses not scheduled from the beginning will be disbursed in cases where the victim directly provided care or provided care for the victim as part of the duty to support the victim. This is difficult to view that there is a legal obligation to assume such disadvantages to the near party as a result of a decrease of the prior property or a disadvantage in property beyond the scope of the normal duty to support the victim. Ultimately, the case where the Plaintiff paid the insurance benefit expenses planned in accordance with the National Health Protection Act, etc. and the case where the Plaintiff should bear such expenses, and the above Supreme Court precedents cannot be the same.

5) In addition, the Plaintiff’s indirect damages not directly related to the tort are special.

that the perpetrator knew, or could have known, the circumstances;

Based on the Supreme Court’s decision (see Supreme Court Decision 94Da5472, Jan. 26, 1996) that “only is liable for damages” (see Supreme Court Decision 94Da5472, Jan. 26, 1996), even if the amount equivalent to the insurance benefit costs incurred by the Plaintiff cannot be deemed as direct damages, it may be deemed as indirect damages at least. The Defendants asserted that the Plaintiff was aware or could have known that the costs for the insurance benefits incurred to tobacco smokes were to be paid for the instant disease

However, it is reasonable to view that both direct or indirect damages to the above Supreme Court case are liable only when the perpetrator knew or could have known special circumstances in the case of indirect damages, on the premise that "the infringement of the legal interests protected by the law that the victim had enjoyed" occurred. However, as seen earlier, even if the plaintiff paid the insurance benefits as seen earlier, it is difficult to view that the damages have been caused by the infringement of the legal interests protected by the law that the plaintiff had enjoyed, i.e., the damage itself, even if the plaintiff paid the insurance benefits as seen earlier. Thus, the legal principles in the

6) Furthermore, insofar as it is not proved that the instant disease occurred to the instant subject persons due to the Defendants’ tort, even if the Plaintiff paid the insurance benefits costs for the instant subject persons, it cannot be deemed as an expenditure incurred by the Defendants’ tort. However, as seen earlier, it is difficult to deem that the instant disease occurred to the instant subject persons due to the Defendants’ tort, and thus, it cannot be deemed that a proximate causal relationship exists between the Plaintiff’s insurance benefits expense disbursement and the Defendants’ act. The conclusion on the primary cause of claim is difficult.

Therefore, the Plaintiff cannot seek damages against the Defendants as the victim who directly paid the insurance benefit costs related to the subject of the instant case. Therefore, the Plaintiff’s claim related to the primary cause of the instant claim is without merit without any need to further examine the elements for establishing tort liability.

4. Determination on the grounds of preliminary claim (the exercise of the right to indemnity under Article 58 (1) of the National Health Insurance Act);

A. Summary of the conjunctive cause of claim

Where the Plaintiff paid insurance benefits pursuant to Article 58 of the National Health Insurance Act, the Plaintiff acquires the right to claim damages to a third party within the limit of the expenditure cost. Therefore, the Defendants are obliged to pay damages to the Plaintiff under the said provision.

B. The premise for the determination

1) Since the nature of the rights held by the National Health Insurance Corporation under Article 58 of the National Health Insurance Act is as seen earlier, the right to claim damages against a third party by the insured (see Supreme Court Decision 2012.

12. In order to recognize the Plaintiff’s conjunctive cause of claim (see Supreme Court Decision 2012Da200028, Mar. 13, 199), the subject of this case, a national health insurance policyholder, should first be proved that the Defendants acquire the right to claim damages.

2) However, the Plaintiff asserts that the subject of the instant case has acquired the Defendants the right to claim damages under product liability, the right to claim damages arising from ordinary tort, and the right to claim damages arising from the violation of the Consumer Protection Act or the Framework Act on Consumers. We first examine whether each of the above rights to claim damages is recognized. Whether liability for damages under the Product Liability Act

1) Whether product liability is established due to design defects

A) The plaintiff's assertion

(1) The hazards of tobacco mainly result from tar ingredients of tobacco smoke, and the toxicity of tobacco is due to nicotine of tobacco, and there is a reasonable alternative design to produce relatively safe tobacco by removing or lowering the hazards or addiction of tobacco in a way that completely removes tar and nicotine in tobacco, but there is a design defect not adopted (the first argument about the design defect).

(2) In the process of importing and selling tobacco, the Defendants used a variety of additives in order to ensure the tobacco smoking and the degree of absorption of nicotine and to increase the amount of smoking (e.g., increase of smoking), used additives, etc. to reduce the stimulative and strings unique to nicotine and to reduce the stimulent smells and add them, so as to have Smoking in tobacco easily (e.g., increase of toxicity). The additives used as above are chemicals that are toxic in themselves or may cause toxic properties to the human body when they are toxic (the second assertion about the second design defect). Therefore, the Defendants’ use of additives while manufacturing tobacco constitutes design defect (the second assertion about the second design defect).

(3) The design method of applying the tent to the cigarette is to cause inseminators to misunderstand the hazards of smoking by making the smoke string and lightly feel the smoke smoke, and to increase the addiction of tobacco by making a large amount of smoke fast, which constitutes a design defect (the third assertion as to the design defect).

B) Determination

(1) Relevant legal principles

(A) Design defect means a product’s failure to adopt a reasonable alternative design that could have reduced or avoided damage or risk if the product had employed a reasonable alternative design (Article 2 subparag. 2 of the Product Liability Act).

(B) Generally, a manufacturer or seller of a product must manufacture a product with safety within the expected range in light of the current technical level, economic feasibility, etc. in terms of the structure, quality, and performance of the product. In the event of damage to a user due to a defect that does not meet safety requirements, tort liability is held. Of such defects, the so-called design defect refers to the case where a product is not safe because the manufacturer did not adopt a reasonable alternative design even if damage or risk would have been reduced or avoided if the manufacturer would have employed a reasonable alternative design. Of these defects, whether there is a so-called design defect should be determined in light of social norms by comprehensively taking into account various circumstances, including the characteristics and use of the product, the user expectation of the product, anticipated risks, users’ awareness of the risks, the possibility of avoiding risks by the user, the possibility of avoiding risks by the alternative design and the relative advantages and disadvantages of the alternative design and the alternative design (see Supreme Court Decision 2011Da22092, Apr. 10, 2014).

(2) Whether to recognize design defects

In light of the above legal principles, the evidence submitted by the Plaintiff alone is insufficient to acknowledge that the tobacco manufactured and sold by the Defendants was a design defect, and there is no other evidence to acknowledge otherwise. In light of the following circumstances, the evidence submitted by the Plaintiff alone is insufficient to acknowledge that the tobacco manufactured and sold by the Defendants was a design defect.

(A) Taking into account the fact that the smoking smoke is the inherent characteristics of tobacco consumption; the tobacco smoke differs depending on the quantity of nicotine and tar contained in tobacco smoke; the tobacco smoker selects and smokes the tobacco having a smell or a flame that he/she knows; the tobacco consumer cannot obtain such effect if he/she removes nicotine with the intent of the pharmacological effect, such as stability, etc.; and it is not easy to set an adequate level of nicotine to the extent that the smoker would not be addicted due to such characteristics of tobacco; even if there is a way to completely remove nicotine or tar; or it is possible to reduce the quantity of nicotine or tar contained in tobacco smoke, it cannot be viewed as a design defect itself; the first design defect cannot be viewed as a design defect even if the Defendants failed to adopt a reasonable alternative design to reduce damage or danger caused by smoking (the first design).

(B) The Plaintiff asserted that the Defendants used the tobacco manufacturing process to manipulate the H concentration of tobacco smoke in order to enhance nicotine’s absorption rate, but there is insufficient evidence to acknowledge this (the second design defect claim i).

(3) In light of the fact that the Plaintiff’s use of tobacco as a result of its research on tobacco manufacturing is no longer likely to cause any difference in tobacco consumption or tobacco consumption, the Plaintiff’s use of tobacco as a result of its analysis on the following circumstances, namely, i.e., thrh, methyl, pyr, shot, and so on: (a) it is difficult to find that there are no additional tobacco consumption or tobacco consumption without additives; (b) it is difficult to find that there are no additional tobacco consumption or tobacco consumption without additives; and (c) it is difficult to find that there is no additional tobacco consumption or tobacco consumption or tobacco consumption without additives’s own effect because it is more likely that the Defendants’ use of tobacco is less likely to cause increase in tobacco consumption than 0 per cent of the annual tobacco consumption, and that there is no more than 4 per cent of the annual tobacco consumption or tobacco consumption, and thus, it is no more likely that the Defendants’ use of additives is a design defect.

(D) In light of the fact that there is a design method adopted to reduce nicotine and tar in the tobacco smoke inhaled by Smokings, and that there is a tent pen, the research result is sufficient to acknowledge that the evidence submitted by the plaintiffs alone is insufficient to recognize that the use of a astronomical pen method in the manufacture of tobacco constitutes a design defect (the third design defect assertion).

2) Whether product liability due to a defect in indication is established

A) The plaintiff's assertion

In manufacturing and selling tobacco with hazard and addiction, the Defendants did not properly implement a reasonable warning indication prescribed in the Product Liability Act, such as (i) simply adding a warning phrase to the effect that tobacco is harmful to health without including specific information on the harmfulness and toxicity of tobacco; (ii) adding a warning phrase to the effect that tobacco is harmful to health without including specific information on the harmfulness of tobacco; or (iii) marking a warning phrase to the effect that the tobacco is harmful to health; or (iv) marking an advertising phrase to prevent the degree of harmfulness and toxicity of the tobacco from being properly perceived. Therefore, the Defendants are liable for damages under the Product Liability Act due to the display defect.

B) Whether the defect was found in the indication

(1) Relevant legal principles

If a manufacturer, etc. fails to provide reasonable explanation, instruction, warning, or any other indication that could have reduced or avoided damage or risk caused by the product, then the manufacturer, etc. may be held liable due to the unlawful act. Determination as to whether such defect exists shall be made in light of social norms by comprehensively taking into account various circumstances, such as the characteristics of the product, ordinary usage, users’ expectation of the product, foreseeable risks, users’ awareness of risks, and the possibility of avoiding risks by users (see Supreme Court Decision 2011Da22092, Apr. 10, 2014).

(2) Specific determination

(A) A person who manufactures and sells tobacco as indicated in the attached Table 5’s relevant statutes requires that the person who manufactures and sells tobacco indicate the risk of smoking in tobacco. However, in the process of manufacturing and selling tobacco, there is no dispute between the parties that the Defendants performed the duty of marking as stipulated in the aforementioned relevant statutes.

(B) In light of the facts that the Defendants were unable to use tobacco for their own purpose because of their inherent tobacco addiction factors, Eul's 7, 87 through 95, Eul's respective entries and arguments, which can be acknowledged as being all together with the following circumstances, (i) tobacco has been consumed in a way of inhaled tobacco smoke since early 160s; (ii) prior to the manufacturing of tobacco; (iii) whether tobacco might cause harm to health; and (iv) whether tobacco sales could have been widely announced in a way that it is difficult for the Defendants to find tobacco smoke as harmful to their health in light of their respective laws and regulations; and (v) whether tobacco sales were likely to cause harm to the Defendants, such as tobacco smoking and pulmonary cancer, and thus, it was widely known that there were no other relevant facts such as tobacco smoking by the Defendants to the extent that it was difficult for them to recognize that tobacco smoking were harmful to their health, and that there were no other relevant facts such as tobacco sales by the Defendants to the extent that it might have been widely known that it might have been harmful to their health.

3) Whether the tobacco imported, manufactured, or sold by the Defendants was defective due to lack of safety ordinarily required as a product

(6) The following circumstances are acknowledged in light of the evidence and the purport of oral argument as seen earlier: ① manufacturing, selling, and smoking of tobacco has been legally, socially, without setting any restrictions on its quality or level of tobacco as a kind of tobacco product in Korea; and such legal system or social norms are not acknowledged to have been modified; thus, it is difficult to deem that the Defendants lack of safety ordinarily expected to cause harm to the tobacco itself, which is a symbol product, solely on the ground that the tobacco is likely to cause harm to the cigarette or cause dependence on its smoke. ② If there are non-processed food, and there are some kinds of tobacco are added to the food, and (3) it is difficult to view that the Defendants were able to smoke in light of the fact that the Defendants were able to smoke because of its lack of tobacco consumption, and thus, it is difficult to see that the Defendants were able to have smoked and melt tobacco consumption in light of the fact that the Defendants were able to smoke without being able to smoke.

4) Sub-committee

Therefore, the evidence submitted by the Plaintiff alone is difficult to deem that the Defendants are liable for tort under the Product Liability Act against the instant subject persons.

D. Whether general tort liability is established

1) The plaintiff's assertion

The Defendants, as a tobacco importer, manufacturer, and seller, knew that tobacco is harmful and addicted products, failed to take necessary measures to avoid or reduce such risk (violation of duty to avoid result). Rather, they denied, reduced, or discarded the risk of smoking, and made a deception that tobacco containing less tar or nicotine is less harmful to tobacco consumers by using advertising phrases such as “low tar and low nicotine” (affirmative deception), and the Defendants committed a tort such as increasing the smoking population through illegal promotion activities (other illegal acts). Accordingly, the Defendants, as a joint tortfeasor, are liable for tort against the instant persons.

2) Determination

In full view of the following circumstances that can be recognized based on the aforementioned evidence and the purport of the entire pleadings, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendants committed a tort, such as violating the duty to avoid the outcome or actively deceiving tobacco consumers, including the subject of this case, and there is no other evidence to acknowledge this differently.

A) As seen earlier, it is difficult to view tobacco imported, manufactured, or sold by the Defendants as either a design defect or indication defect, or a product lack ordinary safety as a product. Therefore, under the premise that tobacco has a design defect or indication defect and lack ordinary safety, the Plaintiff’s assertion that the Defendants failed to take measures to avoid this defect is difficult to accept as it is (related to a violation of a duty to avoid performance).

B) The plaintiff presented and distributed a book "R" (No. 258 No. 258) to the defendant A, thereby denying the risk of smoking or reducing the risk of smoking. The plaintiff introduced or interview to that effect, and thus reduced the hazard or addiction of smoking. However, even if the above act committed by the defendant A, in order to recognize the defendants' liability for damages, it should be recognized that the above act by the defendant A was committed against the subject of this case, or that the subject of this case was obstructed by smoking or smoking, and there is no evidence to prove that the subject of this case was distributed with the above book, or that the result of this study or the interview was seen, or that there was no evidence to prove that the previous smoking behavior was changed (the increase in smoking), or that it was lost or reduced the intention of smoking (affirmative) and there is no evidence to support that the previous smoking behavior continued (affirmative with respect to deception).

C) Furthermore, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendants were fully aware of the hazards and addiction of tobacco, but reduced or discarded it (affirmative with regard to the act of deception).

D) There is a research result that the smoking of low tar and low nicotine tobacco does not differ from the general tobacco in terms of risk or toxicity. However, the evidence submitted by the Plaintiff alone is insufficient to recognize that among the instant subjects, it is difficult to specify the smokingr of the tobacco containing the advertising phrase, such as low tar and low nicotine, among the tobacco manufactured and sold by the Defendants, and that such a name of the product has influenced the suspension of smoking or the amount of smoking, and there is no other evidence to acknowledge it (affirmative in relation to positive deception).

E) Furthermore, there have been a long-term perception that low tar and low nicotine tobacco is harmful to health not only in Korea but also in foreign countries. ② tar and low nicotine tobacco that arrive at the human body if a smoker does not inhale more closely, or nicotine quantity reaches the human body is less than that of ordinary tobacco, and thus, the quantity of tar and nicotine reached the human body depends on smoking behavior, smoking environment, or smoking situation, or the inseminator’s choice, ③ if the quantity of tar and nicotine reduced in the quantity of tar included in one cigarette smoke, and nicotine, it is anticipated that the transfer of tar and nicotine will be reduced in the body if they smoke in the same manner under the same conditions. In light of the foregoing, the facts acknowledged earlier are insufficient to acknowledge that the Defendants made entries in low tar and low nicotine in the body and advertised and advertised are liable for damages under the civil law (affirmative). In addition, there is no evidence to acknowledge otherwise regarding the deception (affirmative).

F) Even if the Defendants committed an unlawful promotional act by offering profits to tobacco consumers, there is no evidence to acknowledge that the subject of this case commenced or continued smoking due to the Defendants’ unlawful promotional activities, and as seen earlier, insofar as it is difficult to recognize that the tobacco imported, manufactured, or sold by the Defendants was defective, even if the Defendants were to engage in illegal promotional activities, it is difficult to deem that the causal relationship exists between the Defendants’ unlawful promotional activities and the instant disease against the subject of this case (related to other tort).

3) Sub-committee

Therefore, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendants committed a tort against the instant subject persons, and there is no other evidence to acknowledge this differently, so the Defendants are not liable for damages due to general tort.

E. Whether tort liability due to breach of the former Consumer Protection Act or the Framework Act on Consumers is established

1) The plaintiff's assertion

Since the Defendants violated the obligation to protect consumers under the former Consumer Protection Act or the Framework Act on Consumers, they shall be liable for damages arising from the violation of the said Act and subordinate statutes.

2) Determination

A) The former Consumer Protection Act (amended by Act No. 7988, Jan. 4, 1980; hereinafter referred to as the "Framework Act") amended by Act No. 7988, Sept. 27, 2006 (the basis of the provisions at the time of its enactment) provides that the State shall establish and implement policies necessary to protect the safety of consumers' lives and physical safety and economic rights and interests, and to ensure consumer life rationalization (Article 2). The competent Minister shall determine or revise the standards to be observed by the enterpriser with respect to the contents of the goods such as components and contents of the goods, the method of indicating instructions or warnings for use, and other matters deemed necessary for the prevention of danger and injury to consumers (Article 12(1)). Meanwhile, the Act provides that a person who manufactures, sells or provides goods shall endeavor to protect consumers and actively cooperate with the consumer protection policy conducted by the State and local governments (Article 3). Article 12(1) of the Framework Act provides that the State shall not take measures to protect consumers from danger and injury to consumers (Article 13).

B) However, as alleged by the Plaintiff, even if the above provisions of the former Consumer Protection Act or the Framework Act on Consumers are not solely aimed at promoting the interests of the general public or all of the citizens, but also established in order to protect the safety and interests of the members of society, it is difficult to view that the Defendants were negligent in violating the obligations under the former Consumer Protection Act or the Framework Act on Consumers on the ground that the Defendants did not explain, warn, publicize, etc. the content as alleged by the Plaintiff in light of various circumstances as seen earlier, i.e., the progress of research on dynamic relations between smoking and the outbreak of lung cancer, etc., the content of reports by various media, i.e., tobacco consumers’ awareness of the risks of smoking, the degree of awareness of the risks of smoking, and the contents of phrases indicated on cigarette packaging, etc. since 1976 (see Supreme Court Decision 2011Da22092, Apr. 10, 2014).

3) Sub-committee

Therefore, the defendants are not liable for damages due to the violation of the former Consumer Protection Act or the Framework Act on Consumers.

F. Whether causation exists between the Defendants’ act and the occurrence of the instant disease

1) Relevant legal principles

epidemiology is a study aimed at identifying the correlation with various natural and social factors by analyzing the outbreak, distribution, and extinction of diseases as a collective phenomenon in a statistical manner, and thereby finding ways to prevent and reduce the occurrence of diseases accordingly. The epidemiology is not to find out the cause of disease caused by an individual belonging to the group. Therefore, even if an epidemiological correlation exists between a certain risk factor and a certain disease, it is not clear what is the cause of the disease caused by an individual belonging to the group. However, if the rate of disease caused by a group exposed to a risk factor is higher than that of another group not exposed to the risk factor, it can be inferred how the disease caused by an individual belonging to the group becomes the risk factor depending on the degree of higher ratio.

On the other hand, unlike the ‘specific disease' that occurs by a specific sick person and clearly corresponding to the cause and result, so-called ‘non-specific disease' is complicated and complicated, and it is a disease caused by a combination of astronomical factors such as genetic and physical properties, drinking, smoking, age, eating habits, occupational and environmental factors. In the case of non-specific diseases, as long as it is acknowledged that there exists an epidemiological correlation between a specific risk factor and the non-specific disease, insofar as there is a possibility that the individual or group exposed to the risk factor is also exposed to other risk factors, the epidemiological correlation merely means that the exposure is likely to cause or increase the disease if exposed to the risk factor, and it does not lead to the conclusion that the cause of the disease is the risk factor.

Therefore, even if epidemiological correlation between a specific risk factor and a non-specific disease is acknowledged, it cannot be deemed that the causal relationship between an individual and the non-specific disease is proved to be probable. In such a case, as a result of an epidemiological investigation conducted by comparing the exposed group with an non-explosion general group, the proportion of non-explosion diseases in the non-explosion exceeds considerably the ratio of the non-explosion disease in the non-explosion risk group, and it must be proved that the non-explosion disease was caused by the risk factor, such as additional proof of the time and degree of exposure, the timing of occurrence, health conditions before the exposure, living habits, changes in the conditions of the disease, family history, etc. (see Supreme Court Decision 201Da20129, Apr. 21, 2014).

2) Whether causation is recognized

A) Whether the causal relationship is presumed as a unique disease

(1) Facts of recognition

According to the overall purport of Gap evidence Nos. 23, 49, and 83, domestic research personnel in 2004 and 2005 announced the following results of research.

(A) The relative risk level of waste cancer generated by an Smokingr compared to non-Smokingr is 21.7 times, the relative risk level of waste cancer generated by an end-of-life cancer is 11.7 times, and the relative risk level of a smoker compared to a lifelong non-smokingr is 5.4 times.

(B) On the contrary, the relative risk of a Smokingr’s waste cancer (ray cancer) is 2.1 times.

(2) Whether the legal principle of presumption of causation is applied

(A) In order to constitute "specific disease" in light of the above legal principles, it is necessary to clearly respond to the cause and result of the disease caused by a specific sick person. Therefore, in the absence of exposure to a specific sick person, it is required that the special disease did not occur almost.

(B) However, there is a research result that Gap's evidence and evidence Nos. 53, 90, 141, Eul's 11 through 13, 15 through 19, 22 through 27, 29 through 54, 73, 75, 76, 77, Eul's 10, and 42 can be acknowledged by adding the overall descriptions and arguments of evidence and evidence Nos. 53, 90, 141, Eul's 15 through 19, 22 through 27, 73, 75, 76, 77, and Eul's 10, and 42, the following circumstances can not be ruled out that the possibility of suffering from other factors than smoking can be determined by considering the following facts:

B) Whether causation is acknowledged as non-specific diseases

(1) Therefore, as long as the instant disease constitutes non-specific diseases, the Plaintiff must prove the probability that the instant disease, which is non-specific diseases, was caused by a smoking, by comparing the group exposed to smoking with the non-explosion group, as a result of an epidemiological investigation, is considerably exceeding the rate of the instant disease in the group exposed to smoking. The Plaintiff must prove the probability that the instant disease, which is non-specific diseases, was caused by additional proof of the time and degree of exposure, the timing and time of outbreak, the health conditions before being exposed to the risk factor, the health conditions before being exposed, the state of disease, and the family history, etc.

(2) First, according to the facts acknowledged earlier, the rate of the disease of this case in the group exposed to smoking considerably exceeds the rate of the disease of this case in the non-smoking group.

There is room for doubt.

(3) However, in order to recognize the causal link between smoking and the instant disease, indirect facts, other than smoking, should be additionally proven in the course of examination of the time and degree of exposure, the outbreak time, health conditions before being exposed to smoking, living habits, changes in the state of disease, family history, etc., where it is difficult to deem that the instant subject has any other dangerous person, other than smoking, should be further proven. However, only the fact that the Plaintiff submitted the evidence Nos. 80, 89, 143, and 215, only the fact that the instant subject had the smoking capacity for more than 20 years and was diagnosed for the instant disease, etc.

According to the above facts, even if the results of the study examined earlier between the dangerous smoking and the non-specific disease of this case suggest the epidemiologic causal relationship, it is difficult to conclude that the possibility of proving the causal relationship between the two was proved by the fact that the subject of this case smokes and that the disease of this case was contracted, or that the plaintiff fulfilled the burden of proof.

(4) Therefore, the evidence submitted by the Plaintiff alone is insufficient to recognize the causal relationship between the smoking of tobacco imported, manufactured, and sold by the Defendants and the occurrence of the instant disease, and there is no other evidence to acknowledge it.

G. Conclusion on the ancillary claimant

Therefore, insofar as the Defendants did not bear liability for damages due to tort against the subject of the instant claim, it is without merit to examine further whether the Defendants’ claim related to the conjunctive cause of the instant conjunctive claim is relevant to each act of the Defendants.

5. Final conclusion

Therefore, the plaintiff's claim against the defendants is without merit, and all of them are dismissed. It is so decided as per Disposition.

The judge of the presiding judge;

Judge Iseather

Judges Kim Jae-han

1) Although Defendant A did not engage in the tobacco import business differently from the rest of the Defendants, Defendant A does not indicate the Defendants’ business in a lump sum, for convenience.

"Imported manufacturing soft" is marked as "imported manufacturing".

(ii) one-year smoking capacity is 1 A with a cigarette of one-year.

3) Of the attached Table 4-Attachment 4-Attachment 4-Attachment 4-Attachment 4: ① The person to whom Defendant A's product was sent is indicated as "O" and ② the person to whom Defendant A and Defendant B's product was sent.

'◐'로 표시하였으며, ③피고 A와 피고 C 및 D의 제품을 피운 대상자를 '◑'로 표시하였고, ④ 피고들 제품을 모두 피운 대상

A person is indicated as "the actual substance" (which will comply with the marking method of the plaintiff).

4) If the loss under Article 682(1) of the Commercial Act is caused by an act of a third party, the insurer who has paid the insurance money shall be up to the amount paid.

A third party shall acquire the rights of policyholders or the insured.

5) In other words, the case of the above Supreme Court Decision 94Da5472 delivered on January 26, 1996 where "a perpetrator shocks the telegraph located in the factory area and cut off electric wires,

The victim who was supplied with electricity through the cable and operated the factory was suspended from the factory for a considerable period of time due to the suspension of power supply.

If business losses suffered at sight and the wind of the operation of a sudden factory are discontinued, the machinery in operation at the time of the factory will occur.

(1) The existence of liability for damages is established on the basis of the probability of expectationing the work material as ‘indirect damage'.

In other words, in the above Supreme Court Decision, the amount of loss of operating profit and loss of machinery failure and data are determined.

It constitutes infringement of property rights, which is a legal interest of all victims, and the legal obligation of the victim to bear the above loss.

It is difficult to see that there is a tort liability, so it constitutes a tort liability (However, indirect damage compensation depending on the possibility of predictability).

It is determined whether or not it should be determined).

6) Since the case is commonly applicable to the Defendants, it is decided without distinguishing between the time of establishment by the Defendants, whether to sell manufacture, etc.

7) Tobaccos produced by sled tobacco leaves and then in a paper.

8) When tobacco smoke passes through a string, it is mixed with tobacco smoke, as the air flows through a tent, and as a result, it is mixed with tobacco smoke at each smoking time.

를 함께 마시게 되므로, 천공 필터가 없을 떄보다 적은 양의 담배 연기를 흡입하게 된다.

9) The evidence submitted by the Plaintiff alone recognizes that the tobacco imported by the Defendants was defective in design or indication as a product in tobacco products.

In addition, the defendants' act constitutes a tort under the Civil Act or a violation of the obligations under the former Consumer Protection Act or the Framework Act on Consumers.

As seen earlier, the Defendants’ act and the occurrence of the instant disease are insufficient to be recognized as such. Therefore, the person between the Defendants’ act and the instant disease

There is no need to further examine whether the relationship is recognized, but the issue in this case is, constituting a separate item.

The judgment shall be separately judged.

10) The relative risk level is an index showing the correlation between a specific risk factor and a disease, and is at risk factor with the outbreak rate of a group exposed to a risk factor.

It is the value divided by the development rate of an exposed group.