담배소송의 민사법상 쟁점에 관한 검토 - 서울중앙지법 2020. 11. 20. 선고 2014가합525054 판결 -

In the subject lawsuit, the court decided on the National Health Insurance Service’s(‘NHIS’) claims on product defects and illegal actions against the tobacco importers, manufacturers and distributors and also the exercise of its right of subrogation by NHIS. The court ruled against the NHIS on all its claims finding that the NHIS suffered no damage by itself, the tobacco products were not defective and that smoking is not a causation for lung cancer. To certain extent, the court correctly ruled considering that the insurance payments made by NHIS do not constitute damage in a normative sense to itself and also on the public policy reasons as finding NHIS suffered damage will inevitably open the gates to huge number of similar claims thereby rendering the insurers’ right of subrogation meaningless. Further, the way in which the wrongdoer infringed on legal right should be considered as a factor in finding damage. Of the alleged defects of tobacco products, the design defect is difficult to establish considering the court’s reliance on the standards such as the risk and benefit of tobacco and the consumer expectations of the same. However, on the question of failure to warn, the defendants should only be released from liability to the extent that the warnings properly reflected the actual knowledge and what the defendants should have known at the time. Therefore, the failure to warn should be found until the point when the proper warning as to the addictive nature of the tobacco was provided. Also, on the general defect, the damage may be found if the general consumer expectation is taken into consideration. While the Author agrees that the use of probable cause and proof by contradiction which are utilized in environmental lawsuits may not be directly applicable to tobacco cases, a causation may be found through epidemiological studies. The Author argues there is no scientific basis in the subject case ruling which made distinction between a disease with specific known cause and a disease without a specific known cause and thereby requiring separate causation for each such type of disease or limiting admission of epidemiological evidence. The Author’s view is such that if a epidemiological study finds causal relationship, then individual causation should also be found. In conclusion, this paper argues for reconsideration of the subject court ruling which will pave the way for realistic recovery by the NHIS as well as those who are affected by tobacco products.