[1] Whether a patient’s consent or consent to medical practice should be obtained in the case of performing medical practice that infringes on his/her body, such as surgery (affirmative), and matters to be explained to the patient on the premise of consent, etc. / Whether a tort may be established in a case where a medical practitioner neglected his/her duty to explain and thereby makes the patient unable to exercise his/her right to self-determination (affirmative)

[2] Requirements to recognize the articles of association operation and pregnancy interruption operation performed by doctors belonging to ○○○○○ Hospital, etc. who had been operated and controlled by the State for the treatment and isolation of patients suffering from Hansen’s disease as legitimate exercise of governmental authority, and whether a civil tort is established in a case where a State performed a articles of association operation or abortion operation against persons affected by Hansen’s disease without meeting the requirements of the State (affirmative)

[3] In a case where Gap, etc. suffering from Hansen's disease, was hospitalized at ○○○○ Hospital, etc., which had been operated and controlled by the State for the treatment and isolation of patients suffering from Hansen's disease, and sought compensation from the State on the ground that he/she had been subjected to its articles of association operation or abortion operation from the medical doctor belonging to the above hospital, etc., the case holding that the State

[4] Where an obligor’s assertion of the completion of extinctive prescription is not permissible as an abuse of right against the principle of good faith / The standard for determining whether there was an obligee’s exercise of right within a reasonable period from the time when the cause for disability disappeared, and the scope of “reasonable period” in a claim for damages arising from tort

[1] A patient has the right to decide on how to maintain his/her life and body function and to choose medical practice according to the right to personality and the right to pursue happiness as stipulated under Article 10 of the Constitution. Therefore, in cases of medical practice that infringe on his/her body, such as surgery, the patient shall obtain the consent or consent of medical practice from the patient. Under the premise of consent, etc., the patient shall explain the symptoms of the disease, the treatment method and necessity, the anticipated risk, etc. in light of the current medical level, and allow the patient to choose whether to receive medical practice after sufficiently comparing the necessity or risk. If the patient cannot exercise his/her right to self-determination by neglecting the above duty to explain and making the patient unable to do so, the tort can be established only by itself.

[2] In cases where a doctor, nurse, or medical assistant belonging to the ○○○○○ Hospital, etc., which the State operated and controlled for the treatment and isolation of patients affected by Hansen’s disease, performed by the State, is an act of infringing upon the right not to be damaged or the right not to be affected by the Constitution, and the right to life, etc. of a fetus, unless he/she obtained consent or consent thereto as a direct infringement on the body of persons affected by Hansen’s disease. In addition, it is clear that the State’s act of infringing on or restricting the dignity and value of human beings as well as the right to pursue happiness by making a brupted family by practically prohibiting pregnancy and childbirth of persons affected by Hansen’s disease, and that such act constitutes an act of infringing on or restricting the dignity and value of human beings as well as the right to pursue happiness. Furthermore, if the State intends to be recognized as a legitimate exercise of public authority under the government’s policy, it does not violate the principle of excessive prohibition, and even if the State’s prior consent to the implementation of the government’s policy or implementation of public authority.

[3] In a case where Gap, etc. suffering from Hansen's disease was hospitalized at the above hospital, etc., which had been operated and controlled by the State for the treatment and isolation of patients suffering from Hansen's disease, and sought compensation from the State for damages on the ground that he had been subjected to its articles of association operation or pregnancy interruption operation from a doctor belonging to the above hospital, etc., the case holding that in light of the fact that a doctor, etc. conducted with respect to Hansen's disease Gap, etc. without any legal grounds or cannot be deemed to have met the lawful requirements, and that it is difficult to recognize the appropriateness of the means or minimum degree of damage even if considering the genetic risk of Hansen's disease's disease prevention when considering the fact that it is medically revealed at the time of the surgery, the purpose of health policy of Hansen's disease prevention is difficult to recognize, even if Gap et al. consented to or consented to it, Gap et al. shall be deemed to have obtained consent or consent from the State due to social prejudice and discrimination against children, poor social, economic conditions, etc.

[4] The exercise of the right of defense on the ground of extinctive prescription is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act. Thus, where there are special circumstances, such as: (a) the obligor has made it impossible or considerably difficult for the obligee to exercise his right or extinctive prescription prior to the completion of the prescription; (b) has committed an act to make the obligee believe that such measures are unnecessary; (c) the obligee has objectively obstructed the obligee from exercising his right; or (d) the obligor has made the right holder trusted it; or (e) the obligor has shown the same attitude that the obligor would not invoke the prescription after the completion of the prescription; (b) the obligor has received the repayment of the obligation under the same conditions as the need to protect the obligee; or (c) the obligor has remarkably improper

Meanwhile, even in cases where there were such obstacles to a creditor, an obligee may block the obligor’s defense of extinctive prescription only when he/she exercises his/her rights within a reasonable period from the time when the cause for disability disappeareds. Determination by comprehensively taking account of various circumstances, such as the relationship between the obligee and the obligor as to whether there was an exercise of rights within a reasonable period, the cause of damages claim, the cause of the obligee’s exercise of rights, the cause for delaying the obligee’s exercise of rights, and the progress from the time the obligee filed a lawsuit for damages claim. However, since the extinctive prescription system is based on the ideology of achieving legal stability and remedy for difficult proof, denying the effectiveness of extinctive prescription based on the principle of trust and good faith ought to be limited to very exceptional cases. Therefore, barring any special circumstance, “reasonable period” in the exercise of rights ought to be limited to a short period equivalent to the interruption of prescription under the Civil Act, and in particular, even in cases where it is inevitable to extend

[1] Article 10 of the Constitution, Articles 750 and 751 of the Civil Act / [2] Articles 10, 12(1), 17, 36, and 37(2) of the Constitution of the Republic of Korea, Article 2(1) of the State Compensation Act, Articles 750 and 751 of the Civil Act / [3] Articles 10, 12(1), 17, 36, and 37(2) of the Constitution of the Republic of Korea, Articles 2(1) of the State Compensation Act, Article 750 and 751 of the Civil Act / [3] Article 29 (see current Article 41(1) of the Infectious Disease Control Act, Article 29 of the former Prevention of Contagious Diseases Act (amended by Act No. 1274, Feb. 9, 1963); Article 29 of the former Enforcement Rule of the Infectious Disease Control Act (amended by Act No. 1294, Dec. 1, 2979, )

[1] Supreme Court en banc Decision 2009Da17417 Decided May 21, 2009 (Gong2009Sang, 849) / [4] Supreme Court Decision 2009Da72599 Decided June 30, 201 (Gong2011Ha, 1515), Supreme Court en banc Decision 2012Da202819 Decided May 16, 201 (Gong2013Ha, 1077)

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

Republic of Korea (Government Law Firm Corporation, Attorneys Choi Jong-chul et al., Counsel for defendant-appellant)

Gwangju High Court Decision 2014Na11542 decided October 22, 2014

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. The lower court acknowledged the following facts by citing the reasoning of the first instance judgment.

(1) From the early 1900s, Hansen's disease has already been known as a disease rather than a genetic disease. Hansen's disease was classified as a disease that can be completely cured after the 1941 peculiar effective loss was claimed, and since the early 1950s, Hansen's disease was recognized as a disease that can be completely cured in Korea. From the early 1950s, Hansen's disease was recognized as a disease that can be completely cured. From the 1970s to the 1980s, Hansen's disease was completely completely cured by using MDT (T) where approximately two to three kinds of drugs were administered sufficiently in a short period in combination. In addition, since the 1950s, Hansen's disease was completely cured by using the MDT (T) where it was able to eliminate compulsory quarantine policies for persons affected by Hansen's disease in various international conferences.

While enacting the Prevention of Contagious Diseases Act in 1954, the Defendant classified Hansen’s disease into class 3 infectious diseases with relatively low infection, the Defendant has maintained a compulsory isolation policy against Hansen’s disease unlike tuberculosis and sexual diseases, which are different from other kinds of infectious diseases. This is attributable to the reason that Hansen’s disease has changed to external appearance and has serious social discrimination and prejudice.

(2) Hansen’s disease occurred most at the young age, and most of Hansen’s disease patients were free from school or elementary school graduates at low level, and most of them were employed or engaged in agriculture and fisheries. Therefore, persons affected by Hansen’s disease themselves did not have any opportunity to obtain information about Hansen’s disease or receive human rights-related education, and even if information and education were provided, most of them were provided by the Defendant at the accommodation facility.

(3) The Defendant educated Hansen’s disease patients at the same time, but implemented a policy that is practically subject to compulsory isolation. Article 29 of the former Prevention of Contagious Diseases Act, which was enacted by Act No. 308 on February 2, 1954, clearly specifies compulsory isolation for Hansen’s disease patients, and thereafter amended Act (amended by Act No. 1274 on February 9, 1963, which was enforced on March 12, 1963), provides that only those who are determined by the competent Ordinance among Hansen’s disease patients are isolated from those who are determined by the competent Ordinance (Articles 2(1) and 29(2)). However, Article 16 of the former Enforcement Rule of the Prevention of Contagious Diseases Act (amended by Act No. 570 on August 19, 197), which is the competent Ordinance, provides that patients suffering from Hansen’s disease, who are likely to be infected with Hansen’s disease, is subject to compulsory isolation or are likely to be infected with others.

The Defendant’s policy, etc. led to the misunderstanding that Hansen’s disease’s disease itself was highly contagious and, in particular, highly likely to be infected with consciousness. Furthermore, this policy led to the general public to encourage prejudice and discrimination against Hansen’s disease, as well as to raise awareness and fear of outside society for persons affected by Hansen’s disease.

(4) The Defendant maintained a strict policy to accommodate men and women in the ○○○○○○ Hospital, △△ Hospital (title 1 omitted), △△△ Hospital (title 2 omitted), Yaeaeaeaeaeaea Hospital, and Seoul Metropolitan City Hospital (title 3 omitted), etc. (hereinafter “Defendant-affiliated hospital, etc.”) which the Defendant operated and controlled for the treatment and isolation of patients suffering from Hansen’s disease. Meanwhile, as the Defendant was carried out in the Japanese colonial period since around 1949, the Defendant allowed married couples and wifes on the condition that they undergo the Japanese colonial surgery. Since the policies to provide couples and couples were maintained in the 190s on the condition that they undergo the Japanese colonial surgery for patients suffering from Hansen’s disease, it was possible for men who wish to live in her husband and wife could not undergo the Japanese colonial surgery.

(5) The policy that strictly prohibits pregnancy and delivery at Defendant-affiliated hospitals, etc. also maintained in the 1990s, and thus, a pregnant woman wants to be given birth. However, human rights affected persons affected by Hansen's disease who have been pregnant with a low educational level and long-term prison life did not have the self-reliance ability to grow into the settlement village or the general society, and the fear of social prejudice and discrimination on the external world where social prejudice and discrimination coexists, so it was difficult to choose to discharge the pregnant woman, and the pregnant woman who does not want to be discharged was forced to undergo a abortion operation.

(6) The Plaintiffs were all suffering from Hansen’s disease, and were hospitalized at a hospital, etc. under the Defendant’s control from around 1950 to around 1978, and were hospitalized by a doctor, nurse, medical assistant, etc. who belongs to a hospital, etc. under the Defendant’s control (hereinafter “the medical doctor, etc. to which the Defendant belongs”) to undergo a climatic surgery or a climatic surgery.

(7) The committee established under the Act on Finding the Truth of Persons Affected by Hansen’s Disease (hereinafter “the Act”) enacted by Act No. 8644 on October 17, 2007, determined the Plaintiffs as victims of persons affected by Hansen’s disease under the said Act on the ground that the Plaintiffs were forced to undergo a brupt operation or a brupt operation during the period during which they were isolated in the Defendant-affiliated hospital, etc. (hereinafter “the Act”).

B. Based on the above factual basis, the court below held that even if the defendant's doctor et al. had forcedly performed the abortion operation or the abortion operation under the articles of incorporation with explicit or implied consent or consent of the plaintiffs, it was difficult to see that the defendant's consent or discrimination against the above persons affected by Hansen's disease had no legal basis for implementing the abortion operation before the above law was implemented. Meanwhile, although there was no ground for allowing the defendant to issue an order for the abortion operation with respect to a specific person affected by Hansen's disease, there was no argument or proof as to the fact that the articles of incorporation operation has been implemented under the above provision. Furthermore, the court below held that it was difficult for the defendant's doctor et al. to recognize that the defendant's doctor et al. were forced to perform the abortion operation or the abortion operation under the articles of incorporation with respect to the above persons affected by Hansen's disease, since it was difficult to see that the defendant's genuine and economic consent or consent was made under the articles of incorporation or social prejudice and discrimination against the above persons affected by Hansen's disease.

Then, the lower court determined that: (a) the Defendant’s doctor, etc., to conduct a lag operation or a pregnant abortion operation against the Plaintiffs violates the right not to be damaged by the body guaranteed by the Constitution; (b) the right to life, the right to pursue happiness; and (c) the right to privacy of the fetus; and ultimately, (d) constitutes tort

C. (1) A patient has the right to decide on how to maintain his/her life and body function and to choose a medical act according to the individual’s personality right and the right to pursue happiness as stipulated under Article 10 of the Constitution. Therefore, in cases of a medical act that infringes on his/her body, such as surgery, the patient shall obtain consent or consent from the patient, and the patient shall explain the symptoms of the disease, treatment method and necessity thereof, anticipated risks, etc. in light of the current medical level, and shall sufficiently compare the patient’s necessity and risk and allow the patient to choose whether to receive the medical act or not (see, e.g., Supreme Court en banc Decision 2009Da17417, May 21, 2009). If the patient is unable to exercise his/her right to self-determination by neglecting the duty to explain as above and thereby making it impossible for the patient to exercise his/her right to self-determination by itself, tort can be established.

Defendant’s doctor, etc.’s conduct of the articles of association and the abortion surgery are acts of infringing upon the right not to be affected by the Constitution and the right to life, etc. of a fetus, in a case where the consent or consent was not obtained as a direct infringement on the body of a person affected by Hansen’s disease. Furthermore, it is clear that the right to pursue happiness by making a family with self-esteem by prohibiting the pregnancy and childbirth of persons affected by Hansen’s disease was an act of infringing on or restricting the dignity and value of human beings, personality rights, self-determination, and secret privacy. Furthermore, if the above infringement intends to be recognized as a legitimate exercise of governmental authority pursuant to the government policy, there must be explicit grounds for such infringement in the law, and there should be no violation of the excessive prohibition doctrine. If the Defendant, without meeting the aforementioned requirements, conducted the articles of association or the abortion surgery against the persons affected by Hansen’s disease, even if the government’s exercise of public authority is an unlawful exercise of the government’s policy or policy.

(2) In light of the above legal principles, it is difficult to recognize the appropriateness of the means or the minimum degree of damage, etc. of Hansen's disease prevention even if considering the genetic risk of Hansen's disease at the time when the operation of the instant case was performed, the fact that the Defendant's doctor, etc. did not necessarily consent or consent to it due to social prejudice and discrimination against Hansen's disease, poor social, educational and economic conditions, etc., and that it cannot be deemed that the Defendant's free and genuine intent is due to the above acts committed by the doctor, etc., even if considering the purpose of health policy of Hansen's disease prevention is considered. Even if the Plaintiffs consented or consented to such alcohol, even if they did not sufficiently explain about whether Hansen's disease is exposed, whether it is likely to be infected with children, and whether the treatment is possible, etc., the Defendant is right to bear the State's liability for damages caused by the above acts committed by the doctor, etc. as above.

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the requirements for establishing State liability.

2. Regarding ground of appeal No. 2

A. The exercise of the right of defense on the grounds of extinctive prescription is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act. As such, where there are special circumstances, such as: (a) the obligor has made it impossible or considerably difficult for the obligee to exercise his right or extinctive prescription prior to the completion of prescription; (b) has acted to make such an obligee believe that it is unnecessary; (c) there was an objective obstacle for the obligee to exercise his right; or (d) the obligor has made the right holder trust; or (e) the obligor has shown the same attitude that the obligor would not use the statute of limitations after the completion of prescription; (b) the obligor has received the repayment of the obligation under the same conditions as the need to protect the obligee; or (c) the obligor has remarkably improper or unfairly refused the performance of the obligation, the obligor’s assertion for the completion of extinctive prescription is not permissible as an abuse of rights against the principle of good faith (see,

Meanwhile, even in cases where there were such obstacles to a creditor, an obligee may block the obligor’s defense of extinctive prescription only when he/she exercises his/her rights within a reasonable period from the time when the said obstacles were extinguished. Determination of whether there was an exercise of rights within a reasonable period should be made by comprehensively taking into account various circumstances, including the relationship between the obligee and the obligor, the cause of the claim for damages, the cause of the obligee’s exercise of rights, the cause for delaying the obligee’s exercise of rights, and the progress from the time when the obligee filed a lawsuit for damages, etc. However, the extinctive prescription system is the ideology of achieving legal stability and remedy for difficult evidence, and thus, denying the validity of extinctive prescription based on the principle of trust and good faith is very exceptional. Therefore, barring any special circumstance, the “reasonable period” of the said exercise of rights should be limited to a short period equivalent to the suspension of prescription under the Civil Act. In particular, even in cases of a claim for damages caused by tort, where it is inevitable to extend the period due to special circumstances, it shall not exceed three years (see, e.g., Supreme Court en banc Decision 2012012Da2019.

B. citing the reasoning of the first instance judgment, the lower court acknowledged the following facts: (a) during the period from June 24, 2010 to June 27, 2012 under the Act on the Protection of Persons Affected by Hansen’s Disease; (b) (c) on August 6, 2009, before the decision on the Plaintiffs was made, the amendment of the Act that included compensation provisions, etc. in the Act on the Protection of Persons Affected by Hansen’s Disease had already been proposed, and was pending in the National Assembly; (d) the 18th National Assembly was abolished at the expiration of the term; and (e) the Finding Committee also urged the victims of Hansen’s disease through the amendment of the Act on the Protection of Persons Affected by Hansen’s Disease, which was issued around 2013.

Based on this, the lower court determined that there was an obstacle to the Plaintiffs, who received the decision of the victim under the Act on the Victims of Persons Affected by Hansen's Disease, to objectively exercise their rights until the decision was made. Furthermore, on the ground that there were special circumstances that the Plaintiffs expected compensation through the Defendant's legislative measures, but did not take any active measures, and thus, the Plaintiffs, who filed the instant lawsuit before the lapse of three years from the date on which the decision was made, were deemed to have exercised their rights within a considerable period of time, excluding the Defendant's defense of extinctive prescription.

In light of the aforementioned legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the completion of extinctive

3. 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 Park Poe-dae (Presiding Justice)