[1] The requirements for recognizing state liability due to a public official's omission and the criteria for determining illegality

[2] The case reversing the judgment of the court below which recognized the State's duty to pay consolation money, in case where a part of the series of regular examinations conducted by an institution affiliated with the State was found to have been voiced after the result of a business inspection and there was no follow-up measures without notifying it to the principal in spite of the fact that part of the series of regular examinations conducted by the institution affiliated with the State was found to have been voiced

[1] For the purpose of recognizing the state liability for damages caused by the omission of a public official, the requirements of Article 2(1) of the State Compensation Act, which provides that "if a public official causes damage to another person by intention or negligence because he/she was in performing his/her duties, in violation of the relevant Act and subordinate statutes," should be met. It does not mean that a public official explicitly violates the relevant Act and subordinate statutes within a strictly formal meaning, even though he/she is expressly obliged to act by a public official, and it does not mean only where the State whose primary mission is to protect the lives, bodies, property, etc. of the people is to protect the lives, bodies, property, etc. of the people because there is an imminent and serious danger or risk of being caused by omission of a public official, and if it is impossible for the State to protect the lives, bodies, property, etc. of the people without a formal and primary basis, it can be recognized that the State or relevant public official has a duty to act in violation of the relevant Act and subordinate statutes without any legal basis, but if the public official complies with the relevant Act and subordinate statutes, it cannot be determined as to what extent the public official's.

[2] The case holding that, in a case where the State's duty to conduct a physical examination of a person subject to a physical examination at the National Health Center was determined as a result of a training of an inspector who was engaged in a special type of business at the military base village, and the State classified the above inspector as an infected person, and then the above inspector was engaged in a type of business for which his/her employment was prohibited by law from being employed, and the State was determined as a result of a periodic medical examination at the request of the National Health Institute, Jeju Health and Environment Research Institute, and the National Health Institute, which judged that the above inspector was highly likely to be infected with a business virus before its enactment and enforcement, but the above institution was judged as a result of a physical examination at the request of the State, but it was difficult for the State to be judged as a result of a periodic physical examination by the previous medical examination agency to receive the determination of his/her mental harm from the previous medical examination agency and to receive the determination of his/her health examination result on the premise that he/she could not be found to have received the determination of his/her mental harm from the medical examination agency

[1] Article 2 (1) of the State Compensation Act / [2] Article 2 (1) of the State Compensation Act, Article 8 (1), Article 12, Article 18 (1) of the Acquireddeficiencydeficiency Disease Prevention Act, Article 10 (1), Article 11 of the Enforcement Decree of the Prevention of Acquired Animal Diseases Act, Article 8 (2) of the Prevention of Contagious Diseases Act

Plaintiff

Korea

Seoul High Court Decision 97Na48014 delivered on March 19, 1998

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The judgment of the court below

In this case, on April 27, 1987, when the National Health Institute established under the defendant's National Health Institute conducted the first test of the air-resistant virus (hereinafter "HHV") conducted with the plaintiff on the first time, the plaintiff was found to have caused the reaction as a result of the test, and it was erroneous for the court below to have determined the training rapidly without going through the re-verification test. Even if the training decision was not erroneous, the former Health and Environment Research Institute established under the defendant in 1991, and the Jeju Health and Environment Research Institute established in 193 determined the voice in contradiction with the determination of training of vizines of each plaintiff's blood in 193, and the plaintiff suffered mental pain, so the defendant was obligated to do so with money, and the court below rejected the plaintiff's assertion that there was no error in finding the training decision on April 27, 1987, and the decision of the court below is inconsistent with the plaintiff's reasoning.

A. Facts acknowledged by the court below

(1) The Acquunicy Deficicy Syndrome (hereinafter “E”) is a kind of spas or virus disease that does not occur to a healthy person by impairing the human body, destroying the immunity system, and undermining the immunity function, and is a spasific disease that results in the death of a healthy person within almost two years when E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E virus is unable to completely cure, and only treatment is conducted to the extent that the E E E E E E E E E E E E E E virus is delayed. Accordingly, countries around the world establish and implement preventive policies so as not to inform the people of E E E E E E E E E E E E E E E E E of the awareness of the awareness of E E, and not to inform them of his infection.

(2) The Defendant, at around 1985, established a prior preventive policy, such as continuous public relations, enlightenment, etc., for the elderly in order to promptly and accurately ascertain the occurrence situation of infected persons, established a scientific feasibility in an authorized inspection institution to check whether infected persons are infected with Az virus according to methods of and criteria for the examination, and established a system for protecting infected persons discovered through such examination and treatment of infected persons, and establish and implement macroscopic response measures, such as preventing healthy people from being infected with Az virus through sexual acts, blood transfusion, blood products (blood products), taking clothes, injection, etc., so as to protect national health.

(3) Before the enactment and enforcement of the Act, the Defendant began to conduct a business virus test on the part of the special department of business judged to be highly likely to be infected with AV. Under the Defendant’s business management policy, the former mine-gun health center affiliated with the Defendant started to conduct a business virus test on March 10, 1987. In accordance with the Defendant’s business management policy, the former mine-gun health center affiliated with the Defendant collected the blood of the Plaintiff who was engaged in the special department of business in the same military base village as of March 10, 1987 (the birth female on October 11, 1962) and requested the National Health Center of Korea to conduct a business virus virus test (hereinafter referred to as the “port body test”) on April 27 of the same year. Accordingly, the Defendant classified the Plaintiff as infected, and conducted an exemption function test, aviation test, health care consultation, etc. on the Plaintiff regularly every six months thereafter.

(4) According to the decision of 1987, the plaintiff could not work for public entertainment business, special entertainment department, etc. since he himself is infected with Eth virus, but the plaintiff later moved his residence to Gwangju-si, Jeonnam-gun, Young-gun, Young-si, Naju-si, Jeju-do, etc. between December 27, 1994, and was engaged in multi-facel employees, drinking house entertainment business, entertainment business, and entertainment business, etc., and was regularly exempted function tests and 12 times at public health centers, public health and environment research institutes, national public health clinics, etc., under the defendant's control, the plaintiff was judged to be identical with the decision of 1987, except in the following three cases.

(A) On March 24, 191, the Jeonnam Institute of Health and Environment established under the Defendant, at the request of the Dong-gu public health clinic in Gwangju-gu, Gwangju-gu, and conducted a resistant test on the Plaintiff’s blood, and judged it as a voice on May 23, 1991 (hereinafter “the judgment on the psychotropic examination”).

(B) On July 15 of the same year, the National Health Institute affiliated with the Defendant conducted a test of the Plaintiff’s blood on the 19th day of the same month at the request of the Seoul National Health and Environment Research Institute, and judged the training on the 19th day of the same month. On the 29th day of the same month, the employee in charge transferred the result to Nonparty 5, who was judged a voice in the process of making a transfer to the notice of the result of the test (No. 2-4), and then erroneously notified the Plaintiff of the result of the test of the Plaintiff’s blood to the Seoul Health and Environment Research Institute on the 29th day of the same month (hereinafter “the determination and notification of the test of the body”).

(C) On November 6, 1993, Jeju Public Health and Environment Research Institute established by the defendant, at the request of the Jeju Public Health Center, found the blood of the plaintiff to be a voice on the 9th of the same month (hereinafter referred to as the "Decision on Aeronautical Body Inspection").

(5) All of the Korean Public Health and Environment Research Institute, Jeju Public Health and Environment Research Institute, and the Korean National Health Institute notified the result of the voice examination only to the institution requesting the inspection in the foregoing case, and did not inform the Plaintiff as the infected. The Plaintiff became aware of the Plaintiff’s blood in the course of gathering a program “60 minutes of tracking 60 minutes” in the Korean Broadcasting System (KBS) around April 21, 1995.

(6) At present, the Plaintiff is a person infected with Ez virus.

(7) The determination of infections with Az virus is based on the measurement of the existence of an aviation (Az virus IHIVG) made by the immunodeficiency body (AzVG) in response to the infections of the human body when the blood collected from the examiner is infected with Ez virus.

Among them, Enzyme-Linked Imunosoride method is known as a representative navigational body testing method. Enzyme therapy method is known as a representative navigational body testing method using enzyme as a mark at the time of measurement of an antimerial body, and is in accordance with the principle separated from the combination of navigation source-aviation with the effective one before measuring enzyme (or this paragraph). While the enzyme method is clearly established with a specific determination factor required in the test on a certain percentage of moleculal body, it is not possible to separate the specific factor required in the test from the moleculal body, it is clearly established with a specific molecule method, such as an electric gyme, which shows the possibility of using enzyme, as a sign at the time of measurement of the enzyme, the enzyme method is not in accordance with the principle separated from the combination of navigation body.

B. The judgment of the court below

(1) On July 1991, 1991, as to the determination and notice of an anti-aircraft inspection

Although the National Health Center under the defendant was judged to train the plaintiff as a result of the physical examination of the plaintiff, it cannot be deemed that the plaintiff was suffering from mental suffering that the plaintiff had the mind of the decision because it did not notify the plaintiff of the fact that it was caused an administrative error by notifying the plaintiff when preparing a list of the persons who received other voice decisions by notifying the public prosecutor's request agency of the result.

(2) On March 1991 and 1993, the judgment of the court below and the lack of follow-up measures

However, the Jeonnam Public Health and Environment Research Institute and Jeju Public Health and Environment Research Institute are different from a series of aviation test results against the plaintiff, which were judged in each voice, and conducted with respect to the previous plaintiff, so it is impossible to cure the case where the plaintiff is infected with a business virus, so it constitutes a case where it is known that there is almost little case of change in the voice after the decision of training, and thus, it is difficult to explain the result in modern medical science. Therefore, it should be notified immediately to the plaintiff who has the most direct interest in the result, and by conducting a re-verification test in cooperation with the plaintiff, it should be thoroughly examined the causes of the difference in the above results, and explain the results to the plaintiff, and have the plaintiff bear a duty of care so that the judgment of the defendant and the result, and the protection and management system for infected persons, should not be able to be able to cause the plaintiff to misjudgment and the consciousness.

Nevertheless, the Jeonnam Institute of Public Health and Environment and Jeju Institute of Public Health and Environment did not inform the Plaintiff of the results at all, and did not take any measures without accurate reinspections and trial proceedings as to the inconsistency points of the above determination, and did so in the management, inspection, and judgment.

Accordingly, only around April 21, 1995, the Plaintiff came to know that some of the results of the aviation test of the Plaintiff’s blood of the Jeonnam Health and Environment Research Institute, etc., of the 1987, were judged to be sound, and thus, the Plaintiff began to have a fundamental doubt as to whether the judgment of aviation safety examination was correct. Accordingly, it is obvious in light of the empirical rule that, even though the Plaintiff was notified of the result of the Defendant’s erroneous determination of training, the Plaintiff continued to have been infected with the EV as at the time of 1987, due to the fact that he was actually infected with the EV virus, or was not infected with the EV, the Defendant was informed of the result of the erroneous determination of training, due to the fact that he was found to have continued to have been infected with the EV due to continuous doubt as to whether he was infected with the EV or not.

Therefore, the defendant is obligated to give monetary reward to the plaintiff.

2. Judgment of the Supreme Court

(a) State liability due to an omission by a public official;

The court below found that the defendant's liability for damages was recognized by the Jeonnam Institute of Public Health and Environment, Jeju Institute of Public Health and Environment, or the defendant's failure to give notice to the plaintiff and to provide an explanation for confirmation inspection and confirmation inspection in accordance with the judgment of first-aid examination on March 1991 and the judgment of first-aid examination on the first-aid examination on the second-aid examination on the second-aid examination on the second-aid examination,

However, in order to recognize the State's liability for damages caused by a public official's omission, as in the case of recognizing the State's liability for damages caused by a public official's act, it shall meet the requirements of Article 2 (1) of the State Compensation Act, which provides that "if a public official intentionally or negligently causes damage to another person in violation of the relevant Act and subordinate statutes". This does not mean where a public official has the duty to act explicitly provided for in the Acts and subordinate statutes within the strict formal meaning of the Act and subordinate statutes, but it does not mean where the State whose primary mission is to protect the lives, bodies, property, etc. of the people is to protect the lives, bodies, and property of the people because it is difficult to protect the lives, bodies, property, etc. of the people unless it comes up to the exclusion of the danger, the State can recognize the duty to act excluding such danger to the State or the relevant public official without any grounds in the formal meaning of the Act and subordinate statutes, but if the public official complies with the relevant Acts and subordinate statutes and subordinate statutes and subordinate statutes and thus, it cannot be determined that the public official's duty to act or negligence.

B. Relevant statutes

The purpose of this Act is to contribute to the protection of national health (Article 1 of the Act) by prescribing matters necessary for the prevention of business and the protection and management of infected persons, thereby enforcing the Act 60 days after the enactment of November 28, 1987. Article 3(1) and (3) of the Act is to establish and implement measures for the prevention of business and the protection and management of infected persons with respect to the State, actively publicize to the people, respect the dignity and value of infected persons as human beings, protect their fundamental rights, and not discriminate against them, while Article 3(2) of the Act imposes a duty of the State to actively cooperate with measures taken by citizens other than those prescribed by the Act.

Article 8 (1) of the Act provides that the Minister of Health and Welfare, the Do Governor, or the head of a Si/Gun/Gu shall conduct a regular or occasional medical examination for 'persons engaged in businesses with many contact with the public as prescribed by the Presidential Decree' (it can be conducted before it was amended by Act No. 4077 of December 31, 198). Article 10 (1) of the Enforcement Decree of the Act provides that "the persons who are engaged in businesses with many contact with the public and who are prescribed by the Presidential Decree" shall undergo a medical examination for 'sexual disease pursuant to Article 8 (2) of the Prevention of Contagious Diseases Act. Article 11 of the Enforcement Decree of the Act provides that regular medical examination for 'the persons who shall undergo a medical examination for 'the sex disease' shall be conducted simultaneously with the medical examination for 'the person who is prescribed by the Presidential Decree', and Article 5 of the Enforcement Decree of the Act provides that regular medical examination for employees under Article 11 of the Enforcement Decree of the Act shall be conducted at intervals of the Ministry of Health and Welfare (the Ministry of Health and Welfare Decree No. 198 May 198).

Article 8 (2) of the former Enforcement Decree of the Act on the Prevention of Contagious Diseases (amended by Act No. 362 of Dec. 20, 198) provides that a person engaged in a job which is deemed necessary for the prevention of sexual diseases shall undergo a medical examination under the conditions as prescribed by the Ordinance of the Ministry of Health and Welfare, and Article 2 subparagraph 2 of the Decree of the same Decree provides that the person engaged in an entertainment business shall be particularly recognized by the Minister of Health and Welfare for the prevention of sexual diseases [this refers to a person who is engaged in an entertainment business under Article 8 (1) 1 and 2 of the Enforcement Decree of the Food Sanitation Act (amended by Act No. 912 of Jul. 27, 1993) or a woman engaged in an entertainment business under Article 8 (1) 7 of the same Decree [this refers to a woman engaged in an entertainment business under Article 8 (1) 1 and 2 of the Enforcement Decree of the Food Sanitation Act and a woman engaged in an entertainment business under Article 9 (2) of the same Decree];

Article 7 (2) of the Enforcement Rule of the Act provides that an inspection agency shall request the Director of the National Health Center to conduct a verification inspection when it finds a provisional inspection suspected of infections as a result of the inspection, and there is no provision that it shall conduct a verification inspection on provisional inspection other than those suspected of infections, and Article 9 of the Enforcement Rule of the Act provides that the Director of the National Health Center shall conduct the inspection without delay and notify the requesting agency of the results of the inspection when he/she is requested to conduct a verification inspection on whether he/she is infected with A, pursuant to Article 7 (2) of the Enforcement Rule of the Act.

Meanwhile, Article 12 of the Act provides that a person who has undergone a periodic medical examination under Article 8 of the Act shall be issued a certificate indicating the result under the conditions as prescribed by the Ordinance of the Ministry of Health and Welfare, and Article 11(1) of the Enforcement Rule of the Act provides that where a person subject to a medical examination under Article 8 of the Act has undergone a medical examination, the head of the inspection agency who has conducted the medical examination shall issue a written confirmation of business inspection in attached Form 7: Provided, That Article 8 of the Medical Rules provides that a person subject to a regular medical examination under Article 8 of the Act may be substituted by recording and delivering the results of the medical examination to a health examination pocket book. In addition, Article 8 of the Medical Rules provides that a public health clinic or designated medical institution that has conducted a periodic medical examination under Article 3 of the Medical Rules shall issue the results of the medical examination to the person subject to the medical examination, and the content column of the attached Form 1 provides that the date of the examination shall be indicated in the relevant medical examination column, and that the result of the medical examination shall be recorded in the Medical Examination Book No. 84.

In addition, Article 4(2) of the Enforcement Rule of the Act provides that the head of a Si/Gun/Gu who has conducted a medical examination or epidemiological investigation pursuant to Article 10 of the Act shall prepare and manage the list of infected persons under attached Form 1, and report the details thereof to the Minister of Health and Welfare without delay through the Mayor/Do Governor. Article 5(3) of the Act provides that where infected persons have transferred their addresses, the infected persons or the head of the household (in cases where infected persons themselves or the head of the household does not exist, adults among the family members in the same household) shall report to the head of the competent public health clinic immediately as prescribed by the Ordinance of the Ministry of Health and Welfare. Article 3 of the Enforcement Rule of the Act provides that when reporting the change of address, the infected persons or the head of the household shall report the name, resident registration number and occupation of infected persons, the relation between those who have reported, the name, resident registration number and the person who has reported, and the address and date of the change of their residence. In addition, Article 18(1) of the Act provides that those who have been engaged in employment for up to 10 years.

C. In the instant case:

On the other hand, as recognized by the court below, once the body of the Ez virus is formed in the human body in modern medical science, it is known that the change that the body is extinguished by the cure can not occur.

In light of the above provisions of Article 8(1) of the Act, if a person subject to exemption from a medical examination is judged to have a voice as a result of a periodic medical examination prescribed by the Act, it is assumed that the inspection agency stated the date of inspection and issued it to the inspector on March 191 at the time of 1993, and that if the inspection agency did not notify that he had a voice test separately, it can be seen that the inspector was determined to have a voice as a result of his voice test. According to Article 8(1)1 of the Act, Article 98(1)1 of the Act. 99 of the Act, it is deemed that a person subject to exemption from a medical examination was conducted on March 1, 191 and 199(the date of inspection is indicated as 9. 19 of the Act).

However, if an infected person is proved to be infected through a physical examination (referring to a confirmation inspection by the National Health Center) stipulated by the Act and the Enforcement Rule of the Act, the person shall be prohibited from engaging in a business subject to a regular examination again, and when the infected person moves his/her address, the competent public health clinic shall report to the head of the public health clinic. Thus, if the State establishes and operates a system to confirm whether all persons subject to a regular examination under Article 8(1) of the Act are already infected with the result of a regular physical examination, it is difficult to expect, in principle, that the person is still suspected of being infected with the result of a regular physical examination even if he/she has judged the voice as a result of a regular physical examination, and therefore, it is difficult to expect that the person has already been infected with the result of a regular physical examination, apart from the issuance of a health examination pocket book, and further, it is difficult to expect to find out the cause inconsistent with the previous results of a regular physical examination.

Furthermore, it is difficult to view that the plaintiff, as the result of the 1987 aviation test, could suffer from mental distress due to the fact that he was judged to be trained by the voice judgment after being discovered of the result of the 1987 aviation test, but it is difficult to view that the state has a duty to act in color against all navigational inspectors to prevent mental damage that the plaintiff would be subject to the previous test result when the plaintiff goes beyond the management scope of the health authority and is engaged in the category of business in which the law was prohibited from being employed, and is subject to regular medical examinations under Article 8 (1) of the Act, while being engaged in the business in which the law was prohibited from being employed, and it is difficult to view that the state has a duty to act in color for all navigational inspectors.

Ultimately, the court below did not examine how the plaintiff had it inspected on March 21, 1991 and 193, whether it was the plaintiff's free from the management of the health authority, whether it was the plaintiff's free from the delivery of a health examination pocket book under the examination rules at the time, whether the plaintiff was in a situation where the plaintiff could know the result of the determination of anti-chemical examination on March 3, 1991 and 193, if not, what is the oil, what is the management system of the non-existent virus infection operated by the State at the time, and whether such management system itself violates the law and regulations, and it is evident that the plaintiff did not know about the result of the examination or determination by the public official's failure to inform the plaintiff of the fact that the previous public health research institute and Jeju Public Health Research Institute did not know about the result of the examination and determination of the court below's liability for damages under the State Compensation Act without any inconsistency with the legal principles as to the procedure of the examination and the determination of the court below.

4. Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)