Where some of the results of a regular inspection conducted by the National Health Center for a person determined to be cultivated as a result of a business inspection conducted by the National Health Center, etc. was found to have been recorded, but only formal inspections have been conducted without notifying the person himself/herself thereof and repeated without subsequent measures, the State is liable to pay consolation money.

The case recognizing the duty of the State to pay consolation money, an inspection agency, on the ground that it is confirmed in light of the empirical rule that, in case where, as a result of a regular physical examination conducted on a person determined to be trained as a result of a business inspection, some of the results were found to be sound, but the inspection agency of the National Health Center, such as the National Health Center, did not notify the person himself/herself of the result and repeats only formal inspection and determination without taking any subsequent measures, the party who became aware of the above facts thereafter begins to be suspected of the initial determination of training, and accordingly, he/she was notified of whether he/she was actually infected with HIV at the time of the initial inspection or whether he/she was infected with a wrong determination of training or whether he/she was infected after being living in a self-sept state with the result of the wrong determination of training, it was confirmed that he/she was suffering from mental suffering due to a sudden death

Articles 750 and 751 of the Civil Act

Plaintiff (Attorney Gyeong-soo et al., Counsel for plaintiff-appellant)

Korea

Seoul High Court Decision 97Na48104 delivered on March 19, 1998

1. The defendant shall pay to the plaintiff the amount of KRW 10,00,000 with five percent per annum from April 21, 1995 to September 3, 1997, and twenty-five percent per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Five minutes of the lawsuit are assessed against the plaintiff and the remainder are assessed against the defendant.

4. Paragraph 1 can be provisionally executed.

From April 27, 1987 to the delivery date of a copy of the complaint of this case, the defendant shall pay to the plaintiff the amount of KRW 100,000,000,000 with 5% per annum and 25% per annum from the next day to the full payment date.

1. Facts of recognition;

The following facts do not conflict between the parties, or comprehensively taking account of Gap evidence 1-18 (the same as Eul evidence 4-5), 19 (the same as Eul evidence 4-6), 20 (the same as Eul evidence 4-6), 21 (the same as Eul evidence 4-11), 22 (the same as Eul evidence 4-12), 23 (the same as Eul evidence 4-13), 24 (the same as Eul evidence 4-14), 25 (the same as Eul evidence 4-14), 25 (the same as Eul evidence 4-15), 4-20, 21, 22, 52, 53, 54-4, 4-1, 20, 32, 4-1, 4-3, 4-4, 12, 4, 17, 197, 197, 17-16, 19, 17-1, 7

A. At around 1985, the defendant started conducting a HIV test on the special type of life-sustaining that A.I.D. is highly likely to have been infected with HIV because of the first discovery of human immunodeficiencydeficiency virus (HIV only) infections in the Republic of Korea (Acquicy deficicy Virus, hereinafter referred to as A.S) around 1985. In accordance with A.I.S management policy as above, the defendant started conducting a HIV test on the special type of life-sustaining that A.I.D. is highly likely to have been infected with HIV as a major social problem. In accordance with the above A.I.D. management policy as seen above, the defendant's Public Health Center of the Southern Mining Group under the defendant had been engaged in a special occupation in the military base of the U.S. as of March 10, 1987 (A.I.D.). The result of the plaintiff's regular health-sustaining test on the plaintiff's health-related woman and the plaintiff's regular health-related test.

B. In accordance with the above determination, the Plaintiff was absent from the fact that he was a person infected with HIV infection, and thereafter went to the Jeju-si, Jeonnam-gun, Young-gun, Naju-si, Jeju-do, and Jeju-do, etc. by December 27, 1994, and was engaged in multi-faceted workers, drinking house receptions, entertainment establishments employees, etc., and was conducted regular immunity and 12 times at public health centers, public health and environment research institutes, and national public health clinics, etc. under the Defendant’s control, and was judged to have the same training as the result of the HIV examination on April 27, 1987, except in the following three occasions.

(1) On March 24, 1991, the Jeonnam Health and Environment Research Institute affiliated with the defendant was requested by the public health clinic in Gwangju-dong-gu and judged as a voice on May 23 of the same year as a result of the HIV test on the plaintiff's blood.

(2) On July 15, 197 of the same year, the National Health Institute under the Defendant’s control rendered a training decision on the 19th day of the same month as a result of the HIV aviation test on the Plaintiff’s blood at the request of the Korea Health and Environment Research Institute (HIV aviation test on July 15, 201), but the employee in charge added the Plaintiff to the Non-Party et al., who was judged by the voice in the process of raising the result in the notice of the inspection (Evidence B-4) and then made the Plaintiff a false entry into the voice, and notified the said Ministry of Health and Environment that the result of the Plaintiff’s HIV aviation

(3) On November 6, 1993, the Jeju National Health and Environment Research Institute under the defendant's control was requested by the Jeju National Health and Environment Research Institute and judged to be a voice on the 9th day of the same month as the result of the plaintiff's examination of the HIV aviations on blood.

C. In each of the above cases where HIV test results showed a voice judgment, both the Jeonnam Health and Environment Research Institute, Jeju Health and Environment Research Institute, and the National Health Institute did not notify the Plaintiff of the result only to the institution that requested the examination, but did not inform the Plaintiff, the patient. The Plaintiff became aware of the fact that there was a voice made in part HIV’s physical examination in the process of gathering the program “60 minutes of tracking 60 minutes”, which was broadcasted by the Korean Broadcasting System (KBS) around April 21, 1995.

D. The plaintiff is currently HIV infections.

E. Whether HIV infection has been infected with HIV is determined by measuring the existence of an sediment (this refers to the principle that is separated from the body of the zzyme-Lmunched ImG) created by the immunodeficiency organ in response to the infection from the blood taken from the testee. The enzyme-Lununched Zmunched Zzyme (or this paragraph) method as the method of using the enzyme as the mark at the time of measurement of the zyme, and the method of using the zyme (or this paragraph) method is clearly different from the zzyme method before measuring the zyme, so that it can be distinguished from the zzyme method of the zyme method of the zyme method of using the zyme method of the gyme method of using the gymeine method of the gyme method of using the gymeine method of the gyme method of using the gyme method.

F. Meanwhile, the U.S. Food and Drug Bureau (FDA only) did not directly detect HIV itself in 1987, rather than directly detect HIV itself, and issued a more strict standard of determination (hereinafter referred to as FDA’s new standard) to indirectly examine whether HIV objects have occurred due to HIV infections in order to correct errors arising from the characteristics of the above method of inspection. First, FDA’s new standard of measurement was cultivated as the result of FDA’s effective immunity test, and the result of the FDC’s multiple tests were displayed in voice for six months after it was preserved, with other cell lines newly gathered and created after collecting them. As a result, it was required to train HIV infections as the result of voice, and it was also required to train 140 p.m. 1 p. 4 p.m. in relation to the examination, and it is also required to train 140 p.m., 240 p. P.

G. However, in determining HIV infection, there is no universal method and standard of determination all over the world-wide unification. This is because, as a method of examination of HIV aviation, a variety of methods, such as IIV Exemption method and wastone method, are known in addition to the above all methods, but it is difficult to verify clearly the heat and accuracy between them, so what method of examination is actually left to the choice and discretion of an inspection institution. In addition, the standard of determination is different from the starting medicine used for HIV examination, which is presented in the U.S., and it is necessary to determine whether there is a high risk of infection in the area where the person subject to examination or the person subject to examination is using it in addition to the regional infection standards and other risk factors which are not the target of examination. In addition, it is necessary to determine whether there is a high risk of infection in the area where the person subject to examination or the person subject to examination is using it independently.

2. Occurrence and scope of liability for damages;

(a) Economic and social impacts and State responsibilities of A.I.S;

A. A.I.S, called Black disease in the 20th century, is a disease known to be impossible to cure under the level of modern medical science, has caused a lot of economic, social and ethical loss and side effects such as the loss of human life, loss of labor force, reduction of productivity, excessive disbursement of medical expenses, destruction and increase of home life, patient and his/her family members, fear and fear as potential patients experienced by the general public, destruction of social integration, etc. Accordingly, it is not only to simply simply approach A.S in personal and pure health aspects, but also to establish a consensus that the whole society should grow out by joint efforts based on community consciousness. Accordingly, the State has to establish a basic system to respond to A.I.S's above request to establish a system for continuous public relations, etc., to establish a system for the prevention of infections, and to establish a scientific system for the methods of inspection and examination to verify the situation of infections, such as prompt and accurate methods of inspection and examination.

B. Review on the possibility of errors in the results of HIV Aeronautical examination dated April 27, 1987

The plaintiff, an institution in charge of HIV examination, must select a method that is judged to have the highest possibility of error among various methods of inspection known at the time, and furthermore, the National Health Institute under the defendant's jurisdiction should pay high attention to the plaintiff on April 27, 1987. Although the plaintiff was not infected with HIV by using an incomplete method that does not meet new criteria set forth in the FDA New Standards for the first time, it was erroneous for the plaintiff to make a decision to train the result of the examination as a result of the above training response, without undergoing a re-verification test, even though the plaintiff was not infected with HIV, and without undergoing a re-verification test, it is impossible to cure the case where HIV is infected with HIV once in modern medical science, so it is known that there is no change in voice after training, and it is also known that the plaintiff had received a new voice test from the plaintiff on May 23, 1991, and since November 9, 193, 197.

However, as seen above, in determining HIV infection, insofar as there is no universal method of inspection and criteria for determination which have yet been standardized globally, it is difficult to conclude that the above National Health Institute has a duty to conduct an incomplete test on the part of HIV aviations according to a new standard of determination established by the FDA new standard, and on the ground that a training decision was rendered without complying with the FDA new standard, it cannot be readily concluded that an incomplete test was used on the part of the above National Health Institute, and there is no clear evidence to prove that there was any error of examination in conducting an incomplete test on the part of the above National Health Institute on April 27, 197.

However, as seen above, the plaintiff was judged in each voice as a result of HIV examination on May 23, 1991 and November 9, 1993, but no obvious error in HIV examination on April 27, 1987 was found, as well as HIV examination conducted on 12 occasions after Apr. 27, 1987 with respect to the plaintiff, in light of the fact that the HIV examination conducted on 12 occasions after April 27, 1987 with the same training as the HIV examination result, it is difficult to recognize the plaintiff's allegation that there was no possibility that the above HIV examination conducted on 7th and May 23, 191 with respect to the above infection of HIV as a result of HIV examination on 193 and November 9, 1993, and there was no possibility that the plaintiff could have been found to have been found to have been found to have been found to have been found to have been found to have been by the plaintiff and the plaintiff's living H examination team.

C. The defendant's administrative error, reversal of judgment and lack of follow-up measures

According to the above facts, "The National Health Institute under the jurisdiction of the defendant was found to have caused an administrative error by notifying the institution requesting the inspection of the plaintiff (Article 1-2 (2)) although it had been found to have been cultivated as a result of the HIV examination (Article 1-2 (2)). Meanwhile, as an institution in charge of the affairs related to A.I.D. such as treatment and consultation of the HIV Port Inspection and infected, the Seoul National Health Research Institute, the Jeju National Health Institute, and the Jeju Public Health Center, under the jurisdiction of the defendant, have a significant understanding of the result as a kind of death sentence in the case of the trainee, and it is not possible for the plaintiff to accurately understand the occurrence of the HIV infection infection and make it the most important and basic work to prevent such infection, so it is difficult for the plaintiff to actively cooperate with the plaintiff to find out the changes in the health examination and to treat the patient as a patient under the control of the H, and it is also difficult for the plaintiff to be found to have been aware of the changes in the health examination.

D. As to the plaintiff's mental suffering

The defendant's above erroneous determination begins with a fundamental doubt as to whether the first HIV test and training ruling, which took place on April 27, 1987, were correct because the results of a series of HIV aviation examinations implemented by the NAD Institute of Health and Environment, etc. around April 21, 1995, were found to be sound. Accordingly, even if HIV actually infected with HIV at the time of 1987, or HIV was not infected, it is hard to conclude that the plaintiff had a duty of care for human rights as a result of the above 0th anniversary of 0th anniversary of being informed of the result of the defendant's wrong training determination as a result of the above HIV. Since it is hard to conclude that the plaintiff had a considerable mental suffering from the above 4th anniversary of 0th anniversary of the fact that the plaintiff had a duty of care for life under the influence of the above HIV before 197, there were no other significant mental suffering from the 19th anniversary of the fact that the plaintiff had no mental suffering from the 17th anniversary of this case.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 10,00,000 consolation money and damages for delay at the rate of 5% per annum under the Civil Act from April 21, 1995 to September 3, 1997, which is the date of the above illegal act, and 25% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Park Yong-ok (Presiding Judge)