예방접종피해에 대한 손해배상책임의 성립요건

Abstract

Mass vaccination is carried out for national health. But the vaccination itself brings about bad reaction, physical injury or death. In Korea, nation compensates for physical injury or death by vaccination without regard to intenion or negligence. However, in reality, the compensation is not sufficient for remedy of the injury. If so, we examine the vaccine injury conform to tort liability(the State Tort Liability). Establishing requisite of tort liability are doer's intention or negligence, illegality and causal relationship. About illegality, invasion of the one's benefit of law (right) is estimated illegality. Negligence means violation of the duty of care. Causal relationship msans the cause-and-effect between a preceding act (harmful act) and following result (harm damage). Meanwhile, it is very difficult to prove doer's negligence and causal relationship in medical practice, because ordinary person can't know the process and method of treatment for disease by professional medical personnel. It is same in vaccination. So it is sufficient for a victim to prove the fact there is no matter between bad reaction by vaccination and inoculation (assumption of the negligence and theory of possibility). Reversely doer of vaccination, expert of that branch, should prove there is no negligence in his act of inoculation and there is no causal relation between bed effection after vaccination and inoculation. In this paper, requirements of tort liability in vaccine injury are taken approach with cases in Korea and Japan. It is satisfied to make a mold of tort liability in vaccine injury through this attempt. And I wish more discussions on vaccine injury are shown in public law and private law.