예방접종에 따른 피해에 대한 국가보상에 관한 연구 -예방접종과 피해 사이의 인과관계 관련 쟁점들을 중심으로

Abstract

Infectious Disease Control and Prevention Act requires the Commissioner of the Korea Disease Control and Prevention Agency to decide whether there is a causation between vaccination and damage, regardless of abnormality of the relevant vaccine, or negligence of the person who performed vaccination, etc. In the meantime, few administrative lawsuits have been filed against the decision made by the Commissioner of the Korea Disease Control and Prevention Agency that does not recognize the causation between vaccination and damage. However, as of 2021, the number of applications for state compensation will increase rapidly due to Covid-19 vaccination, and the number of administrative lawsuits seeking cancellation of the decision made by the Commissioner of the Korea Disease Control and Prevention Agency which denies the causation between vaccination and damage will also increase shortly. Therefore, I believe that now is the time to review some of the issues regarding causation between vaccination and damage. The Supreme Court of Korea previously ruled that the legal nature of the decision made by the Commissioner of the Korea Disease Control and Prevention Agency regarding the causation between vaccination and damage is a discretionary act, and that it should be respected as much as possible, and that the court should only examine whether the Commissioner of the Korea Disease Control and Prevention Agency has deviated or abused its discretion. However, considering the form and wording of the law on which the above decision was based, the main purpose and characteristics of the administrative field to which the above decision belongs, and the individual nature and type of the above decision, I think that the legal nature of the decision made by the Commissioner of the Korea Disease Control and Prevention Agency regarding the causation between vaccination and damage should be identified as a non-discretionary act, rather than a discretionary act, and that the court should conduct a more strict judicial review of the above decision. In principle, the court should apply the judging criteria which were made clear by previous Supreme Court cases, which properly relaxes the burden of proof regarding causation between vaccination and damage in the course of administrative litigation. However, in the case of vaccines developed to cope with new infectious diseases, such as the Covid-19 vaccines, it is important to consider that there are continuous concerns about the safety of those vaccines due to the short-term vaccine development process and the application of emergency use authorization procedures. And in such cases, it is also important to consider the fact that it is quite difficult to fully understand what kind of severe damage can be caused by such vaccination, and that it is also difficult to figure out the probability of such severe damage within a short period of time.