[1] Criteria to determine whether a product has a design defect

[2] Where the issue is whether the tobacco manufactured by the State, etc. has a design defect, the case affirming the judgment below that it is difficult to view the tobacco as a design defect

[3] Whether tort liability is recognized against the defect in the indication of a product (affirmative), and the standard for determining whether a product has a defect in the indication

[4] Where the issue is whether the tobacco manufactured and sold by the State, etc. has a defect in indication, the case affirming the judgment below that it is difficult to view the tobacco as a defect in indication

[5] In a case where Gap with a smoking capacity of not less than 30 grams and Eul with a smoking capacity of not less than 40§¯ were diagnosed as non-pactary cell cancer and pulmonary cell cancer cancer of pulmonary cancer, and sought compensation against the State, etc. who manufactured and sold tobacco, the case affirming the judgment below holding that causation between Gap and Eul's smoking and the outbreak of waste cancer is not acknowledged

[1] 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 and economic feasibility, etc. In light of the structure, quality, and performance of the product. In the event of damage to users due to a defect not meeting safety requirements, tort liability is held. Of these defects, the so-called design defect refers to the case where the 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 adopted the alternative design, and thus the product could not be safe should be determined in light of social norms, comprehensively taking into account various circumstances such as the product’s characteristics and use, 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 adopted design and the alternative design.

[2] In a case where the issue is whether the tobacco manufactured by the State, etc. has a design defect, the case affirming the judgment below that it is difficult to view the design defect of tobacco in light of the following: (a) in a case where tobacco manufactured by the State, etc. has a way of completely removing nicotine or tar, it cannot be viewed as a design defect even if it is possible for the State, etc. to adopt a reasonable alternative design to reduce the damage or danger of tobacco consumers due to smoking, on the grounds that it is the inherent characteristic of tobacco smoking to inhale smokes; (b) tobacco smokes vary depending on the quantity of nicotine and tar; and (c) tobacco consumers choose and smoke tobacco with a good smell or flame; and (d) tobacco consumers smokes with a nicotine’s pharmacological effect, such as stability, etc.

[3] Even in cases where a manufacturing or design defect is not recognized, if a manufacturer, etc. fails to make a reasonable explanation, instruction, warning, or any other indication that would have been likely to have reduced or avoided damage or risks caused by the product, then the manufacturer, etc. may be held liable for tort against the defect in such indication. In determining whether such defect exists, the determination shall be made in light of social norms by comprehensively taking into account all the circumstances such as the product’s characteristics, ordinary usage mode, user expectation of the product, foreseeable risks, user awareness of the risks, and the possibility of avoiding risks by users.

[4] In a case where the issue is whether a tobacco manufactured and sold by the State, etc. has a defect in indication, the case affirming the judgment below that it is difficult to view that a tobacco manufacturer, etc. failed to give additional explanation, warning, or other indication in addition to the warning phrase on a cigarette to a cigarette, on the ground that the tobacco manufacturer, etc. failed to give additional explanation, warning, or other indication, as well as on the ground that it appears that smoking may cause various respiratory diseases, including the lung cancer, through media reports and legal regulations, could have widely known the society throughout the society including tobacco consumers, and whether to start smoking and whether to continue smoking as well as to continue smoking can be seen as an issue of free will, and that it would have been easily recognized among tobacco consumers.

[5] Where Gap with a smoking capacity of not less than 30 grams and Eul with a smoking capacity of not less than 40 years had been diagnosed as non-pactary cell cancer and pulmonary cell cancer cancer of pulmonary cancer, and sought damages against the State, etc. that manufactured and sold tobacco, the case affirming the judgment below that the causation between the two special smoking factors, such as physical, biological, chemical, etc., and non-smoking diseases, which may occur due to the complex effects of biological and biological human factors, is not acknowledged, and non-specific diseases are included in non-pactary cells, which are no relations with smoking, nor considerably low pulmonary cancer, and it is difficult to conclude that the causal link between the two special smoking factors, such as non-smoking cells, is considerably low in relation to smoking and non-smoking cells, which are a kind of pulmonary cancer, and that the causal link between the two special smoking factors, such as the occurrence of non-smoking cells, can not be determined in light of the fact that the two special smoking factors are highly likely to occur, rather than the environmental factors.

[1] Article 2 subparagraph 2 (b) and Article 3 of the Product Liability Act, Article 750 of the Civil Act / [2] Article 2 subparagraph 2 (b) and Article 3 of the Product Liability Act, Article 750 of the Civil Act / [3] Article 2 subparagraph 2 (c) and Article 3 of the Product Liability Act, Article 750 of the Civil Act / [4] Article 2 subparagraph 2 (c) and Article 3 of the Product Liability Act, Article 750 of the Civil Act / [5] Article 750 of the Civil Act

[1] [3] Supreme Court Decision 2002Da17333 decided September 5, 2003 (Gong2003Ha, 2012)

See Attached List of Plaintiffs (Law Firm Namsan et al., Counsel for the plaintiff-appellant)

Republic of Korea and one other (Law Firm Sejong, Attorneys Yellow-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2007Na18883 decided February 15, 2011

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the ground of appeal that the tobacco manufactured by the Defendants is defective

A. As to whether there is a design defect

1) Generally, a person who manufactures and sells a product must manufacture a product with safety within the expected range in light of the current technical level and economic feasibility in terms of the structure, quality, and performance of the product. The manufacturer is liable for tort in the event of damages to the user due to any defect that does not meet safety requirements. Of such defects, whether the so-called design defect is a so-called design defect refers to the case where the 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 adopted a reasonable alternative design, shall be determined in light of social norms, comprehensively considering the characteristics and use of the product, the user expectation of the product, anticipated risks, users' awareness of risks, the possibility of avoiding risks by the user, the possibility of avoiding risks by the alternative design, the relative advantages and disadvantages of the adopted design and the alternative design (see, e.g., Supreme Court Decision 2002Da17333, Sept. 5, 2003).

2) According to the reasoning of the lower judgment, the lower court determined to the effect that: (a) taking into account the following circumstances: (b) the following: (a) the fluence of tobacco leaves is the inherent characteristics of tobacco consumption; (c) the fluence of tobacco is changed depending on the quantity of nicotine and tar contained in tobacco smoke; (d) the tobacco consumer selects and smokes tobacco having the fluence or arode that he/she knows; and (e) the tobacco consumer’s removal of nicotine cannot obtain such effect if he/she smokes with the intent of the pharmacological effect, such as stability; and (e) the removal of nicotine cannot be deemed as a design defect; (b) even if there is a way to completely remove nicotine or tar, it does not constitute a design defect; and (c) there is no evidence to acknowledge that the Defendants failed to adopt a reasonable alternative design that could reduce the damage or risk of tobacco consumers caused by smoking, it is difficult to deem that the tobacco manufactured by the Defendants.

3) Examining the relevant legal principles and records, the lower court’s rejection of the Plaintiffs’ assertion regarding tobacco design defect is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on product design defect.

B. As to whether there is a defect in indication

1) Even in cases where a manufacturing or design defect is not recognized, if a manufacturer, etc. fails to take reasonable explanation, instruction, warning, or any other indication that would have been likely to have reduced or avoided damage or risks caused by the product, the manufacturer, etc. may be held liable for tort against the defect in such indication. In determining whether such defect exists, the determination shall be made in light of social norms by comprehensively taking into account all the factors such as the product’s characteristics, ordinary usage mode, user expectation of the product, foreseeable risks, user awareness of risks, and the possibility of avoiding risks by the user (see Supreme Court Decision 2002Da17333, Sept. 5, 2003, etc.).

2) According to the reasoning of the lower judgment and evidence adopted by the lower court, tobacco companies were consumed by 160's early 160s in a way of melting tobacco leaves, and these methods of consumption of tobacco have been conducted prior to the manufacture of tobacco, and controversy over harmful effects and efficacy of tobacco in a certain way since the early 1950s, and multiple epidemic research results were announced from 1950's to 1962, which included a large amount of tobacco smoking content in the 19-day Tobacco Industry Promotion Act (including the 19-day Tobacco Industry Promotion Act), which is widely known to the public that it would have been difficult for the Defendant to see that it would have been harmful to the public health of the Republic of Korea, and that it would have been widely known that it would have been harmful to the public health of the 19-day tobacco industry (the 1964, the 1964, the 1964, the 1964, the 1964, the 1964, etc.

3) Examining these circumstances in light of the legal principles as seen earlier, it is difficult to deem that the tobacco manufacturer failed to give additional explanation, warning, or other indication in addition to the marking of a warning on a cigarette package pursuant to the provisions of law, and thus, the tobacco manufactured and sold by the Defendants is defective in its indication.

In this regard, the lower court’s rejection of the Plaintiffs’ assertion on the defect in indication of tobacco is acceptable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

C. As to whether other defects lack of ordinary safety.

1) According to the reasoning of the lower judgment, the lower court: (a) based on the premise that it is difficult to deem that there is lack of safety ordinarily expected tobacco consumption, such as tobacco, which is a symbol product, even if the Defendants were to have manufactured, sold, and smoke in Korea without setting any restrictions on tobacco quality or level; (b) as such, there is no circumstance to deem that the tobacco and its smoke were generated in a legal system or social norms to have changed; (c) thus, it is difficult to view that there is a lack of tobacco consumption in light of the fact that there is a possibility of harm to the health of Smoking or its smoke; and (d) it is difficult to view that the Defendants were able to rely on tobacco consumption, not only on tobacco consumption, but also on tobacco consumption by a smoker or pipe, but also on tobacco consumption because it is difficult to view that the Defendants were able to rely on tobacco consumption, such as tobacco consumption, but also on tobacco consumption by a smoker or pipe, and it is difficult to view that there is a lack of free solution of nicotine and its degree of harm.

Furthermore, the lower court determined that there was no evidence to support the Plaintiffs’ assertion that the Defendants used harmful additives, including cancer compounds, to manipulate the pH concentration of tobacco smoke so as to raise nicotine’s absorption or addiction, or that the Defendants, knowing nicotine and tar content that may cause or maintain tobacco smokers’ dependence, have operated nicotine content by inserting harmful additives in order to manufacture highly dependent tobacco with high dependence.

2) Examining the relevant legal principles and records, the lower court’s determination is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, by misapprehending the legal doctrine

2. As to the ground of appeal by the Defendants’ intentional tort

A. As to the delivery of false information or deception

(i) the distribution of books stating that “Smoking is so harmful as to be so harmful.”

According to the reasoning of the lower judgment, the lower court determined that it is difficult to recognize that the Defendant Company’s act of maintaining and increasing tobacco consumption by providing false information on the risk of tobacco to Smokings on the sole basis of the fact that the Defendant Company published and distributed a book stating that smoking would be so harmful, and furthermore, it is difficult to recognize that the Smokings in the instant case came into contact with the said book, recognized the content thereof, and thereby maintained and strengthened the smoking behavior.

In light of the records, we affirm the above determination by the court below. Contrary to the allegations in the grounds of appeal, we do not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust

(ii)the act of deception by low tar and low nicotine tobacco;

According to the reasoning of the judgment below, the court below rejected the Plaintiffs’ assertion that Plaintiff 10 and Nonparty 1 were harmful to smoking because Plaintiff 10 and Nonparty 1 were unable to smoke for a certain period of time, including the phrase “Ray” or “mad” in the name of the product, and there was no evidence supporting that Plaintiff 10 and Nonparty 1 had smoked, and that the tobacco in the name of the product had an effect on the smoking interruption or the smoking volume. However, in light of Plaintiff 10 and Nonparty 1’s assertion that Plaintiff 10 and Nonparty 1 had smoked, and that there was no evidence supporting that Plaintiff 10 and Nonparty 1 had led to the smoking of “8 Lyd” or “8 Lyd” caused the smoking of “8 Lyd” or “8 Lyd,” thereby deceiving Plaintiff 10 and Nonparty 1 as being harmful to smoking.

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to

B. As to the concealment of information on the risk of tobacco

According to the reasoning of the judgment below, the court below held that the court below did not have any evidence to deem that the Defendants concealed the tobacco hazards, unless there are special circumstances, such as that the Defendants obtained information that is different from those of the tobacco that had been smoked or produced by other manufacturers, or that they committed an act that may enhance the risk, all of the information acquired through components analysis, animal testing, or foreign literature was not obligated to disclose. In light of the type, content, nicotine toxicity, etc. of the tobacco manufactured by the Defendants, there is no special risk different from that of the tobacco manufactured by the Defendants, or that there was no evidence to deem that the Defendants committed an act of increasing the risk thereof. Furthermore, the court below did not have any evidence to deem that the Defendants concealed it even though they clearly aware of knowledge or information beyond the awareness of the general society as to the tobacco hazards.

In light of the relevant legal principles and records, such determination by the court below is acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations by misapprehending the legal principles on

C. As to Defendant Republic of Korea’s smoking promotion activities

According to the reasoning of the judgment below, it is difficult to find that the Defendant Republic of Korea forced or encouraged the Smoking of this case to smoke, or caused the Smoking cancer of this case, etc., and even if the Defendants encouraged the consumption of domestic tobacco, it is difficult to regard it as the encouragement of smoking to non-Smokings, and it is merely the purport of inducing the consumption of domestic tobacco, and thus, it is difficult to deem that the smoking of the Smoking of this case was caused or promoted due to this reason.

In light of the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules,

3. As to the grounds of appeal on the Defendants’ violation of duties under the Consumer Protection Act

The former Consumer Protection Act enacted on January 4, 1980 provides that the State shall establish and implement policies necessary to protect the safety and economic rights and interests of consumers and to rationalize their lives and physical interests (Article 2), and that the competent Minister shall not manufacture or sell goods in violation of the standards of consumer protection policy conducted by the State and local governments (Article 13) in order to prevent any danger and injury to consumers in accordance with the substance or the method of use of the goods under his/her control, including ingredients, content, and structure, the contents and methods of indication, such as instructions and warnings in use, and other matters deemed necessary for preventing any danger and injury (Article 12(1)). Meanwhile, the former Consumer Protection Act provides that any 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), and Article 12(1).

As alleged by the Plaintiffs, even if the above provisions of the former Consumer Protection Act are not solely aimed at promoting the interests of the general public or all of the people, but also established in order to protect the safety and interests of the individual members of society, it is difficult to deem that the Defendants violated the obligations under the former Consumer Protection Act on the ground that the Defendants did not explain, warn, and publicize the risks of tobacco and their toxicity as alleged by the Plaintiffs, in light of various circumstances as seen earlier, the progress of research on dynamic relations between smoking and the outbreak of lung cancer, etc., and the contents of various media reports thereon, degree of awareness of tobacco consumers as to smoking risks, and the contents of phrases indicated on cigarette packaging, etc. since 1976.

In this regard, the court below is just in rejecting the plaintiffs' assertion on the premise that the defendants were negligent in violating their obligations under the former Consumer Protection Act. In so doing, the court below did not err by misapprehending the legal principles on the duty of care under the former Consumer Protection Act, or by misapprehending the legal principles on the duty of care under the design or indication of a product.

4. As to the ground of appeal on the causation between smoking and the outbreak of waste cancer

A. The term “epidemiology” means the study aimed at identifying the correlation with various natural and social factors by analyzing the outbreak, distribution, and extinction of diseases as a group phenomenon in a statistical manner, and at finding ways to prevent and reduce the occurrence of diseases accordingly. The epidemiology examines and ascertains the cause of a disease as a group phenomenon, and does not necessarily establish the cause of an individual’s disease. Therefore, even if an epidemiological correlation exists between a certain risk factor and a certain disease, it does not reveal the cause of a disease that is caused by an individual belonging to the group. However, if the occurrence rate of 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 much the possibility of an individual’s disease is caused by the risk factor depending on the degree of higher ratio.

On the other hand, unlike “specific disease” that occurs by a specific sick person and clearly corresponding to the cause and result, so-called “non-specific disease” means a disease that happens in combination with congenital factors, such as genetic and physical properties, drinking, smoking, age, eating habits, occupational and environmental factors. In the case of non-specific diseases, even if the epidemiological correlation exists between a specific risk factor and the non-specific disease, insofar as there is no possibility that the individual or group exposed to the risk is exposed to other risk factors, the epidemiological correlation merely means that the exposure to the risk factor is likely to cause the disease or increase if it is exposed, 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-exploitation group, and it must be proved that the non-exploitation disease was caused by the risk factor, such as additional proof of the time, degree, timing of exposure, health conditions before the exposure, living habits, changes in the conditions of the disease, family history, etc. (see Supreme Court Decision 201Da7536, Jul. 12, 2013).

B. According to the reasoning of the judgment below, waste cancer is not a unique disease arising from smoking only, but a non-specific disease that may be caused by the intra-human complex effects of the living body with an external environment, such as physical, biological, and chemical human factors. Waste cancer is largely divided into small cell cancer and non-cell cancer according to the organizational form. There are diverse kinds of signs from high relation with smoking to non-smoking. Non-small cell cancer is not referred to as a specific type cancer, but referred to as all types of cancer other than small cell cancer, and it includes the type of pulmonary cancer that has no relations with smoking, and is ordinarily related to smoking in the medical academic circles. Waste cancer is ordinarily related to smoking, which is considerably low in terms of the eco-cell cancer and non-cell cancer, and is considerably low in terms of the environmental relationship between pulmonary cancer and non-pactary cells, and it is considerably low in terms of the pulmonary viral cancer, and it is considerably low in terms of the pulmonary viral cancer, etc.

According to the above facts, even if an epidemiological causal relationship can be acknowledged between smoking and non-specific disease and the outbreak of non-pactary cell cancer, it is difficult to readily conclude that there was a probable causal relationship between an individual and the occurrence of non-specific disease on his/her own with the fact that he/she smokes and that he/she contracted the above non-specific disease.

Meanwhile, according to the reasoning of the judgment below, the non-party 2 among the smokers of this case has a smoking capacity of at least 30 grams, but the non-party 3 has a smoking capacity of at least 40 years, but the non-party 3 was diagnosed as a non-pactary cell cancer of the ray, which is a part of the ray cancer, but was diagnosed as a group of the ray cancer, and although the non-pactary cell cancer of the non-pactary cell cancer of this case has a relation to smoking and the frequency of generation has increased due to low tar and low nactic tobacco. However, the non-party 3 and non-party 2 began to smoke in the late 1950s, and most of the tobacco that can be recognized as low tar or low zine tobacco during the most of the smoking periods thereafter, and the non-party 3 has been suffering from a natural organ from youth and the father of the non-party 3 also died by cheon food.

In light of these facts, it is difficult to view that it was proved that the non-small cell cancer from Non-Party 2 and the pulmonary cell cancer from Non-Party 3 was caused by smoking.

In this regard, the court below’s determination that the causal link between smoking and the outbreak of waste cancer is not recognized is acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the causal link between tobacco and waste cancer.

5. As to the grounds of appeal on omission in determination as to comprehensive succession to liability for damages

In this case, the Plaintiffs initially asserted the Defendants’ joint tort liability, but thereafter, revoked the claim for the existing joint tort liability and changed the cause of the claim to seek the Defendant Company’s sole tort liability on the grounds that all the responsibility for the manufacture and sale of tobacco in the Republic of Korea was comprehensively succeeded to the Defendant Company. The lower court asserted that the judgment on the comprehensive succession of liability for damages was omitted.

However, the assertion that Defendant Republic of Korea’s liability for damages relating to the manufacture and sale of tobacco was comprehensively succeeded to the Defendant company is premised on the recognition of Defendant Republic of Korea’s liability for damages relating to the manufacture and sale of tobacco. As seen earlier, Defendant Republic of Korea’s liability for damages relating to the manufacture and sale of tobacco is not recognized. Thus, this part of the ground of appeal by the Plaintiffs cannot affect the conclusion of the lower court’s dismissal of the Plaintiffs’ claim, and it is without merit.

6. 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 Kim Yong-deok (Presiding Justice)