[1] The elements to recognize the State's liability for breach of public official's official duties

[2] Whether Articles 7, 9, 10, and 16 of the former Food Sanitation Act aim at protecting the safety and interests of individuals as members of society (affirmative)

[3] Requirements for recognizing that failure by the Commissioner of the Korea Food and Drug Administration, etc. to exercise the authority granted under Articles 7, 9, 10, and 16 of the former Food Sanitation Act is illegal, and whether negligence is also recognized in a case where non-exercise of authority is deemed illegal (affirmative)

[4] The case affirming the judgment of the court below which held that in case where a child died from drinking the "minc World Cup" by exercising the regulatory authority under the former Food Sanitation Act until the accident occurred, it is hard to view that the Commissioner of the Korea Food and Drug Administration, etc. was considerably unreasonable to prohibit the import, distribution, etc. of the minc World Cup by exercising the regulatory authority under the former Food Sanitation Act, or not taking measures such as strengthening the standards, standards, specifications, and indication, etc. and to the extent that it can be deemed unlawful due to the failure of social validity or the loss of objective legitimacy

[1] Even if a public official intentionally or negligently violates an official duty imposed on him/her, the State shall be liable only to the extent that proximate causal relation is acknowledged between the violation of such official duty and the damage suffered by the injured party. In such cases, for the purpose of recognition of proximate causal relation, the content of the official duty imposed on the public official is not merely for the public interest or for the public interest, but rather for the purpose of protecting the safety and interest of individual members of the society entirely or incidentally.

[2] Article 1 of the former Food Sanitation Act (amended by Act No. 7374 of Jan. 27, 2005) provides that "the purpose of this Act is to contribute to the improvement of national health by preventing sanitary harm caused by food and improving the quality of food nutrition." Articles 7, 9, 10, and 16 of the same Act provide that the Commissioner of the Korea Food and Drug Administration, etc. shall prepare certain standards and specifications for the method and ingredients of manufacturing food or food additives, the method of manufacturing containers and packages, their raw materials, labeling, etc., and shall require the Commissioner to inspect food, etc. when an import declaration is filed, if it is necessary to verify whether such standards and specifications are complied with, or if there is concern about sanitary harm, or if it is necessary for national health, it is necessary to examine food, etc.

[3] Even if the relevant provisions, such as Articles 7, 9, 10, and 16 of the former Food Sanitation Act (amended by Act No. 7374 of Jan. 27, 2005), are interpreted to have granted the Commissioner of the Korea Food and Drug Administration and relevant public officials the authority to perform their duties at a reasonable discretion, in light of the purport and purpose of granting such authority to the Commissioner of the Korea Food and Drug Administration, etc., if the failure to exercise such authority under specific circumstances is considerably unreasonable and thus there is no social feasibility, it shall be deemed that the failure by the Commissioner of the Korea Food and Drug Administration, etc. to exercise such authority is illegal. In addition, if the failure by the Administrator of the Food and Drug Administration, etc. is deemed to be illegal

[4] The case affirming the judgment of the court below that, in case where the children died from drinking the "minc World Cup", on the grounds that each country's regulations on the minc World Cup mainly existed prior to the occurrence of the accident, such as difficulty, etc., and the government of the Republic of Korea also took measures to regulate the standards, specifications, and marks of the minc World Cup in line with such standards and specifications, etc. before the occurrence of the accident, it was difficult to find the authenticity of the mincary World Cup even if the false report on the minc World Cup ingredients was made, and it was difficult to find that the court below's determination was unlawful by the Commissioner of the Korea Food and Drug Administration, taking into account the fact that it was difficult to find the possibility of such false report through the examination after the occurrence of the accident, and that the danger of massing due to the minc World Cup containing other ingredients than difficulty, etc., it was difficult to recognize or anticipate such danger by the Commissioner of the Korea Food and Drug Administration at the time of the accident and the relevant public official's loss of authority.

[1] Article 2 (1) of the State Compensation Act, Article 750 of the Civil Act / [2] Article 2 (1) of the State Compensation Act, Article 750 of the Civil Act, Article 1 (see current Article 1), Article 7 (see current Article 7), Article 9 (see current Article 9), Article 10 (see current Article 10), Article 16 (see current Article 19) of the former Food Sanitation Act / [3] Article 2 (1) of the State Compensation Act, Article 750 of the Civil Act, Article 1 (see current Article 1), Article 7 (7), Article 9 (see current Article 7) of the Civil Act, Article 10 (see current Article 10 (1) of the State Compensation Act, Article 1 (see current Article 7), Article 9 (9) of the former Food Sanitation Act, Article 10 (see current Article 7 (9) of the former Food Sanitation Act, Article 10 (2) of the former Food Sanitation Act, Article 10 (see current Article 70 (2) of the current Article 97) of the Food Sanitation Act)

[1] Supreme Court Decision 2001Da59842 Decided April 25, 2003 (Gong2003Sang, 1245) Supreme Court Decision 2005Da62747 Decided December 27, 2007 (Gong2008Sang, 112) / [3] Supreme Court Decision 2005Da48994 Decided April 10, 2008 (Gong2008Sang, 653) Supreme Court en banc Decision 2008Da38288 Decided April 22, 2010 (Gong2010Sang, 897)

Plaintiff 1 and two others (Attorney Go Young-deok, Counsel for the plaintiff-appellant)

[Defendant-Appellant] Republic of Korea and one other (Attorney Go Jae-ia et al., Counsel for defendant-appellant)

Seoul High Court Decision 2007Na7074 decided September 11, 2008

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

1. As to the plaintiff 1's appeal

Plaintiff 1 did not file an appellate brief within the statutory period and filed the appellate brief after the lapse of the statutory period, and the petition of appeal does not contain any indication in the grounds of appeal.

2. As to the remaining plaintiffs' appeals

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. Ground of appeal No. 1

(1) Even if a public official intentionally or negligently violates an official duty imposed on him/her, the State shall be liable only to the extent that proximate causal relation is acknowledged between the violation of such official duty and the damage suffered by the victim. In such cases, to recognize proximate causal relation, the content of the official duty imposed on the public official should be established to protect the safety and interests of individual members of society entirely or incidentally, rather than merely for the public interest or for the internal order of the administrative agency (see Supreme Court Decisions 2001Da59842, Apr. 25, 2003; 2005Da62747, Dec. 27, 2007, etc.).

(2) Article 1 of the former Food Sanitation Act (amended by Act No. 7374 of Jan. 27, 2005; hereinafter the same "former Food Sanitation Act") provides that "the purpose of this Act is to contribute to the improvement of national health by preventing sanitary harm caused by food and improving the quality of food nutrition," and Articles 7, 9, 10, and 16 of the same Act provide that the Commissioner of the Korea Food and Drug Administration (hereinafter "the Administrator of the Food and Drug Administration") shall prepare certain standards and specifications for manufacturing food or food additives, methods and ingredients of manufacturing containers and packages, manufacturing methods of containers and packages, raw materials thereof, etc. And it is necessary to ascertain whether the aforementioned standards and specifications are complied with, or if there is concern about sanitary harm or need for national health, it is necessary to inspect food at the time of filing an import declaration. In full view of the relevant provisions of the former Food Sanitation Act, it is reasonable to ensure that individual public health interests are established as well as individual health interests of all citizens.

(3) On the contrary, the former Food Sanitation Act only aims at promoting the interests of the entire citizens by regulating the manufacture, sale, import, etc. of food that may pose a risk to the general public’s health and by regulating goods or services that may pose a risk to the safety of life, body, and property of the people, and it cannot be seen as a provision for direct protection of individual safety and interests. However, as seen below, the court below erred by misapprehending the legal principles on the former Food Sanitation Act, but as long as a public official belonging to the defendant Republic of Korea did not exercise the regulatory authority as above under the former Food Sanitation Act, or as long as the liability against the plaintiffs of the defendant Republic of Korea is not acknowledged, regardless of the existence of proximate causal relation, such error of the judgment below

B. Determination on the grounds of appeal Nos. 2 through 4

(1) In light of the contents and form of Articles 7, 9, 10, and 16 of the former Food Sanitation Act, it is reasonable to view that each of the above provisions grants reasonable discretion to the Administrator of the Food and Drug Administration and relevant public officials (hereinafter “the Administrator of the Food and Drug Administration, etc.”) to take measures to prevent harm to people’s lives and bodies due to food, such as evaluating food risks, setting appropriate standards and standards for food to the extent that it does not unfairly undermine the property rights of employees engaged in the food industry or the autonomous market order of the food industry, and taking measures for inspection to implement such standards and standards.

However, even if the relevant provisions of the former Food Sanitation Act are interpreted as granting a reasonable discretion to the Administrator of the Food and Drug Administration, in light of the purport and purpose of granting such authority, if the Administrator of the Food and Drug Administration, etc. fails to exercise his/her authority under specific circumstances, and thus is considerably unreasonable in society, it would be unlawful in violation of his/her duties (see, e.g., Supreme Court Decisions 2005Da48994, Apr. 10, 2008; 2008Da38288, Apr. 22, 2010). In addition, if the failure of the Administrator of the Food and Drug Administration, etc. to exercise his/her authority becomes illegal in violation of his/her duties, barring any special circumstances, it shall be deemed that negligence is recognized unless there is a special reason.

(2) However, prior to the occurrence of the instant accident, each member of the world, including the United States and the European Union, recognized and attempted to regulate the qualitativeity caused by the diesel cup, but the content was mainly limited to the regulation of the diesel ingredients and containers, such as difficult circumstances, and the defendant Republic of Korea also required to submit the original certificate issued by the manufacturing company of the luxian and the exporting country at the time of import declaration to ensure its effectiveness. Accordingly, even if the instant accident occurred on April 1, 2001, it was difficult for the 20th anniversary of the occurrence of the instant accident, it was difficult for the 1st century to ascertain the risk of the instant accident by using the 2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-4nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-3nd-2nd-3nd-2nd-2nd-3nd-2nd-3nd-2nd-3nd-3nd-4nd-2nd-3).

In light of these circumstances, in light of the aforementioned legal principles, it is difficult to deem that the Administrator of the Food and Drug Administration, etc. was unable to prohibit the importation, distribution, etc. of diesel cups by exercising the above regulatory authority until the occurrence of the instant accident, or to take measures such as strengthening the standards, specifications, and indication, etc. necessary to prevent the importation, distribution, etc. of the diesel cups by exercising the regulatory authority until the occurrence of the instant accident, and thus, it is difficult to deem that such non-exercise of authority by the Administrator of the Food and Drug Administration, etc. was negligent.

(3) In the above purport, the court below's disposition that did not recognize the liability for damages to the plaintiffs of the defendant Republic of Korea on the ground that a public official belonging to the defendant Republic of Korea did not perform his duty of care and did not exclude the risks, is not somewhat insufficient, but is therefore justified, and contrary to the grounds of appeal, there are no errors in the misapprehension of the relevant legal principles of the State Compensation Act or in failing to exhaust all necessary deliberations.

C. Judgment on the fifth ground for appeal

The allegation in this part of the grounds of appeal is just a ground of appeal disputing the selection of evidence and fact-finding belonging to the lower court’s full power as a fact-finding court.

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.

Justices Ahn Dai-hee (Presiding Justice)