혈액제제 제조물책임- 대법원 2017. 11. 9. 선고 2013다26708, 26715, 26722, 26739 판결에 대한 평석-

Abstract

I studied on whether the Supreme Court Judgment(2013Da26708, 26715, 2672, 26739,sentenced on November 9, 2017; hereinafter refered as ‘the subject judgment’) is corector not. The subject judgment sems to have imposed a high level of caution on the removalof infection risk on the blod product manufacturer as the main criterion for determiningdefects in design. In the case of the subject judgment, the implementation of the atentionobligation to eliminate infection risk is a major component of the rational alternativedesign, which implies that risk and utilty are compared, and functions as the basis forthe determination of defects in design. A defect in design may be recognized if themanufacturer of the blod product fails to fulfil its duty of care to eliminate the riskof infection in the patient. The subject judgment sems to have adopted the "risk domain theory" in the area ofprof of the fulfilment of the duty of care, which prevents blod products manufacturersfrom providing blod from people with a high risk of infection such as hepatis C virusthrough screning. The subject judgment stated that the manufacturer was responsible forprof of the fulfilment of such a duty of care. Infected dangerous substances, such ashepatis C virus, are located in the controling or dangerous area of the blod productmanufacturer. In the field of manufacturing liabilty lawsuits, the subject judgment semsto have acepted the "risk domain theory" for the first time. The subject judgment folows the trend of existing Supreme Court precedents in theestimation of the causal relationship betwen defects in blod products or the malpracticeof pharmaceutical companies and the infection of victims. The victim's burden of profis asesed to be mitgated acording to the law of 'prima facie-Beweis', The SupremeCourt(208Da1676) said that “The presumption of causal relationship wil not bereversed if the victim receives blod products or blod transfusions manufactured byanother company.” The above estimates canot be reversed by the administration ofother blod products or blod transfusions, even if they are signifcantly more likely tobe infected by other blod products or blod transfusions and have ben exposed to suchhigh-risk sources for a long time. The subject judgment is considered to be of precedentvalue as the first judgment.