100 sis

2. B

00 City/Do

A person shall be appointed.

00

4. D;

00 City/Do

[Defendant-Appellant] Plaintiff 1 and 2 others

[Defendant-Appellant]

0)

Law Firm ○○, Counsel for the defendant-appellant

Attorney OOO, OO

2. The costs of appeal are assessed against the Plaintiffs.

From the date of service of the duplicate of the complaint of this case to the date of service of the duplicate of the complaint of this case, 5% per annum from the following day to the date of complete

20% interest shall be paid in 20% interest.

가. 당사자들의 지위1 ) 원고들은 국민건강보험의 가입자로서, 원고 A, B, D은 아래에서 보는 바와 같이 ◆◆제약 주식회사가 제조 · 판매한 의약품을 처방받아 구매 · 복용한 사람들이다 . 2 ) 피고는 ◆◆제약 주식회사로부터 회사분할되어 2013. 3. 4. 설립된 회사로서 , ◆◆제약 주식회사가 영위하던 사업 중 전문의약품, 의료기기, 진단, 해외사업부문 등에 관한 일체의 권리의무를 이전받았으며 ( 이하 ◆◆제약 주식회사와 피고를 구분하지 않고 ' 피고 ' 라 한다 ), 독점규제 및 공정거래에 관한 법률 ( 이하 ' 공정거래법 ' 이라고 한다 ) 제2조 제1호 소정의 사업자이다 .

B. The defendant's unfair act of inducing customers was supported by the defendant to 00 university hospitals that he traded for a period from January 1, 2003 to September 30, 206 ***, Schlage***** * * * * * * * * * Ma, S * * * * * * * * * * * Macen, pule * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * continuously for the increase of prescription * * * * * * Professor by means of cash, etc., goods or fixtures, golf or support drug support, support through donation, support through donation, etc.

C. 1) The Fair Trade Commission: (a) established a sales promotion plan at the level of the head office from June 1, 2003 to September 30, 2006 with the aim of increasing the prescription of medicines produced by the Defendant; and (b) continuously providing goods support, golf ties, etc. within the nationwide scope to large general hospitals; (c) provided unfair or excessive profits in light of normal transaction practices; and (d) provided unfair or excessive profits to competitors (including potential competitors) to attract their customers to deal with the company; and (e) determined that the act falls under the category of "unfair inducement of customers" as stipulated in Article 23 (1) 3 of the Fair Trade Act; (e) Article 36 (1) [Attachment Table 1-2] 4 (a) of the Enforcement Decree of the Fair Trade Act; and (e) imposed a penalty surcharge of KRW 20,430,000,000 on the grounds that the judgment of the Fair Trade Commission was unlawful in the process of establishing and imposing a corrective order and a penalty surcharge of KRW 16.28.

23. The dismissal of appeal to the Supreme Court (Supreme Court Decision 2008Du22815) became final and conclusive.

D. Plaintiffs A (purchase of medicines manufactured and sold by the Defendant)

원고 A은 ① 2004. 11. 3. 부터 2005. 6. 18. 까지의 기간 동안 스 * * 캅셀 60mg 합계 26, 103원 ( 본인부담금 5, 221원 ) 상당을 요양급여로, ② 2004. 11. 3. 부터 2005. 2. 27 .까지의 기간 동안 ◆◆가 * * * 20mg 합계 170, 940원 상당을 비급여로, ③ 2005. 3. 27 .부터 2005. 3. 31. 까지의 기간 동안 아 * * * 정 100mg 4, 430원 ( 본인부담금 886원 ) 상당을 요양급여로, ④ 2005. 7. 21. 발 * * * 정 500mg 31, 524원 ( 본인부담금 6, 305원 ) 을 요양급여로 각 구입하였다 .

2) Plaintiff B

원고 B는 ① 2004. 3. 18. 부터 2004. 11. 28. 까지의 기간 동안 ◆◆가 * * * 20mg 합계 404, 040원 상당을 비급여로, ② 2004. 4. 30. 아 * * * 정 100mg 886원 ( 본인부담금 177원 ) 상당을 요양급여로, ③ 2004. 9. 2. 부터 2004. 9. 9. 까지의 기간 동안 ◆◆슈 * * * 캅셀 100mg 합계 23, 200원 ( 본인부담금 4, 640원 ) 상당을 요양급여로, ④ 2004. 10. 18 .부터 2004. 10. 31. 까지의 기간 동안 오 * * 정 5mg 합계 54, 360원 상당을 비급여로 각 구입하였다 .

3) Plaintiff D.

원고 D은 ① 2003. 5. 14. 부터 2003. 6. 4. 까지의 기간 동안 ◆◆가 * * * 20mg 합계 51, 800원 상당을 비급여로, ② 2003. 6. 26. 부터 2003. 7. 7. 까지의 기간 동안 오 * * *정 5mg 합계 51, 240원 상당을 비급여로 각 구입하였다 .

【Uncontentious facts, Gap’s entries in the evidence, 12, 57, 58, 63, 64, 66, 89 through 94, and the purport of the whole pleadings

2. The plaintiffs' assertion

A. According to the repayment scheme, the Plaintiffs asserted that the Defendant violated the Fair Trade Act by offering rebates to a medical care institution, and caused damages to the Plaintiffs as follows. The actual transaction at the time of the instant case is liable for damages under Article 56 of the Fair Trade Act or tort liability under the Civil Act. According to the reimbursement scheme, medical care benefits are determined on the basis of the amount actually purchased by the medical care institution within the notified maximum amount. Therefore, even if the medical care institution received unfair rebates from the pharmaceutical company and obtained economic benefits corresponding thereto, if the medical care institution reported the purchase cost and received such payment, the patients who purchased the relevant medicines were liable for damages equivalent to the percentage of rebates out of their own expenses. However, as seen earlier, the Defendant violated the Fair Trade Act, such as unfairly soliciting customers from the medical care institution by offering rebates to the medical care institution, and even if so, the medical care institution conspired with the Defendant to purchase the medicines at a low price, and thereby, the Plaintiffs should be deemed to have reported and paid the amount of rebates out of the total amount of the Plaintiff’s medical care institution’s price to be deducted from the amount of the Plaintiff’s purchase price.

B. Next, the plaintiffs asserts as follows about the amount of damages suffered by the plaintiffs due to the defendant's offering of rebates.

1) The Defendant’s amount of rebates unfairly offered between June 1, 2003 and September 30, 2006 is KRW 133,657,00,00, and the Defendant’s total sales amount of the Defendant’s pharmaceutical products for which rebates was offered during the said period are KRW 443,00,000. Thus, 30% of the purchase price of the pharmaceutical products purchased by the Plaintiffs ( = 133,657,00,000, 443,003,000, 100 x 100%) of the purchase price of the pharmaceutical products purchased by the Plaintiffs ( = 133,657,00,000, 4443,000, 100 x 100% of the purchase price of the pharmaceutical products paid by the Defendant’s rebates, 206, 30.17% of the purchase price of the Plaintiff’s pharmaceutical products paid by the Plaintiffs to the Defendant’s 26.

3. Determination

A. In order to recognize the Defendant’s liability for damages according to the Plaintiffs’ assertion in the case, it shall be proved that the Defendant, a pharmaceutical company, conspired with the medical care institution by offering illegal rebates, etc. to maintain the price of the pharmaceutical products in collusion with the medical care institution. Accordingly, it shall be proven that the Plaintiffs suffered damages equivalent to the difference by preventing the Plaintiffs from purchasing the medicines at a discounted price equivalent to the amount of rebates. As a premise of such determination, the characteristics of the pharmaceutical market, the pharmaceutical price pricing structure, and the characteristics of the rebates for the pharmaceutical products shall be first examined, and then the following matters shall be examined.

B. The characteristics of the pharmaceutical market and the pharmaceutical price pricing structure (based on the pharmaceutical price redemption system) 1) unlike other general competition markets, wide range of industrial regulation pharmaceutical markets are being regulated by various laws in order to protect national health, and competition is limited in advance. In particular, the government has a critical impact on the market in a way that regulates the prices and quality of the pharmaceutical and medical services, including entry regulations and structural regulations. The interested parties surrounding the domestic third party payment system are largely divided into the government, sick, and research institute, and the pharmaceutical company, and the insured (consumer). In the case of insurance benefits, the National Health Insurance Corporation, which is the insurer, not the method of paying the price to the medical care institution by the insured, uses the medical care (medical care benefits) in the medical care institution, takes a third party payment system in which the insured pays the price to Byung and National Health Insurance Corporation (Provided, That the insured also bears part of the cost in the form of one's own shares due to the budgeting, etc. as a result of these problems.

First, consumers or patients do not bear the cost according to their own medical service quality and quantity, and the quality of medical service cannot be compared and assessed properly due to the absence of information, which eventually leads to a prudent incentive to balance costs and benefits.

On the other hand, since the existing insurance benefit system is not sufficiently linked to the quality and performance of medical services, it is not easy to actively induce patients to improve the quality of medical services. In particular, since the actual transaction has been implemented since 1999, the incentive to purchase drugs at low price and administer them.

In addition, in the situation where the mass advertising of prescription drugs is prohibited, there is little room for competition centered on the price or quality domain, and because there is little difference between original and original characters, i.e., insurance contracts between reproductions, there is no incentive to develop new drugs, and even at the time of the reduction of the price of drugs, there is a decrease in profits due to the adjustment of the base price rather than the increase in profits by the increase in sales.

Finally, while the government is in a position to operate a enormous insurance finance and pay insurance benefits, it may cause unefficiency in that it is the promotion of patient's rights and interests because it is not a patient who is actually receiving benefits.

C) In the case of prescription drugs under the current Pharmaceutical Affairs Act, the incompleteness of medical information (or pharmaceutical) information, and the non-distinctive prescription is prohibited, public advertisements using TV or Internet portal, etc., and only advertisements using a medium of expertise and academic purpose regarding medical or pharmaceutical science are possible. As such, there is no information on the patient’s own choice of drugs. Moreover, due to the implementation of pharmaceutical industry, it is impossible for the patient to properly understand the contents of prescriptions or affect the prescription itself. This is because, in the case of prescription drugs, the non-disciability of information is structuralized or institutionalized, and such non-disciability and non-discientness make it difficult for the patient to compete in the relationship between medical and pharmaceutical members, pharmacies, pharmacies, and the patient.

2) A pharmaceutical product price determination structure (based on the pharmaceutical product price reimbursement system) where the health insurance is not applicable may be sold at a free price by medical care institutions that are final sellers, but the price of the pharmaceutical product to which the health insurance is applicable is substantially managed by the government by determining and publicly announcing the maximum price (standard price) that the government can redeem with insurance. The standard drug price of the pharmaceutical product to which the health insurance is applicable at the time of the instant case was determined differently depending on whether the pharmaceutical product is registered in the health insurance, and the business operator applied for the determination of the maximum amount, assessed it in the specialized evaluation committee of the pharmaceutical product under the Ministry of Health and Welfare, and determined and publicly notified by the Minister of Health and Welfare.

B. Change in the system of reimbursement

① The so-called public notice system has been applied to the redemption system (from July 1, 1977 to November 14, 1999) of the reimbursement system. The so-called public notice system has been applied at the price publicly notified by the Minister of Health and Welfare by adding a certain distribution profit to the shipment price of the pharmaceutical products submitted by the pharmaceutical company to the medical care institution. However, under the redemption system, even if the actual transacted price is lower than the public notice, the public notice system takes the difference between the purchase price and the public notice into unfairly profits to the medical care institution and takes the difference into account not only the health care institution’s expense but also the risk of excessive medication, the decrease in the desire for research and development, such as the development of new products of the pharmaceutical company, and the pharmaceutical dumping transaction.

② In order to solve the foregoing problem, if the actual transaction price is lower than the notice of the actual transaction price, the actual transaction is compensated for the actual transaction price and reduces the insurance finance to the amount of the difference, and the actual transaction price was introduced on November 15, 1999 for the purpose of transparent and rationalizing illegal and audio drug transactions by adjusting the upper limit amount based on the actual transaction price. The actual transaction price was implemented until September 30, 2010.

This is a system for medical care institutions to purchase materials from pharmaceutical companies or wholesalers within the maximum amount prescribed by the government, and then to be refunded from the Health Insurance Corporation the actual transaction price. Accordingly, medical care institutions claim drug costs from the average average price of actual purchase prices of the medicines purchased during the preceding quarter within the scope of the standard contractual price according to the standard contractual value table for medical care. The medical care institutions have to report and submit the details of purchase such as actual purchase prices, purchase volume, and weighted average price to the Health Insurance Review and Assessment Service by each quarter, and the Health Insurance and Assessment Service has adjusted the standard contractual value by calculating the average average purchase price of the medicines submitted and reported by the health care institutions in each quarter and the distribution transaction details of the medicines by the health care institutions in each quarter and by reducing the maximum amount by calculating the average average market price and the maximum amount.

However, even if actual transactions are purchased at a lower price from a medical care institution due to a repayment system, the benefit therefrom does not belong to the medical care institution. As such, there is no motive or incentive for the medical care institution to make efforts to lower the price of the medicine. Under the repayment system, a pharmaceutical company has paid a certain portion of the drug price to the medical care institution as the so-called rebates for the inducement of new transactions and the maintenance and expansion of transaction relations. Ultimately, after the implementation of the redemption system, the actual transaction was paid at least 99% of the number of pharmaceutical prices paid after the implementation of the redemption system, and was actually operated as the notice in the previous public notice system.

③ In the end, the government decided that the existing “actual transaction” that had not recognized profit acquisition in the process of purchasing and re-sale drugs by a medical care institution would result in a transactional practice by rebates, and that the market-type actual transaction was implemented from October 1, 2010. In the redemption scheme, the government provided the medical care institution with 70% of the difference between the upper limit and the purchase price, and provides the medical institution with a motive to purchase medicines at a low price.

(c) Acts and subordinate statutes related to the rebates of drugs and their characteristics1);

2) Characteristics of drug rebates

Generally, rebates means that a seller returns part of the sales amount to a buyer, but most options related to medical treatment are used in the meaning of "the act of offering economic benefits, such as money, goods, entertainment, etc., to a medical care institution, medical person, pharmacist, or herb pharmacist directly or through a wholesaler for the purpose of sales promotion, such as adoption of a medicine and inducement of prescription."

In the light of normal transaction practices, rebates would infringe fair and free competition if the purchase decision is not made in accordance with the price or quality of the product. The domestic pharmaceutical market also does not focus on the quality and price of the drug due to the drug price regulation, so the rebates of the drug also causes an issue of infringement of fair and free competition.

However, the economic competition in the pharmaceutical market is conducted at almost at the stage of securing customers of the pharmaceutical company, i.e., wholesale, and in particular, it is difficult to deny the fact that one of the fundamental causes of the rebates of drugs is the price regulation because there is no incentive to purchase the drugs at a low level under the repayment system.

D. Determination as to the plaintiffs' claims

1) The plaintiffs asserts that there exists a tort related to pharmaceutical price discount, and that the defendant conspired with the medical care institution that the defendant would increase the price of the pharmaceutical products to the extent equivalent to the price of the rebates offered to the medical care institution, and that it would be collusion with the final consumer to resell it.

Article 19(1)1 and the main text of Article 56(1) of the Fair Trade Act stipulate that if there is any person who suffers damage by the implementation of an agreement to change a price determination that unfairly limits competition by contract, agreement, resolution, or any other means, the business operator shall be held liable for damages to the victim concerned. The liability for damages under the above provision is established in cases where the supplier distorted the pricing process that should be determined by the principle of demand and supply through price collusion, and commits an unfair collaborative act that restricts mutual competition, consumers shall be held liable for damages on the grounds that the right to purchase the goods at a reasonable price is infringed. Thus, unless the business operator proves that there is no intention or negligence, the business operator shall be held liable for damages unless he/she proves that there is any intention or negligence (the proviso to Article 56(1) of the Fair Trade Act).

B) On the ground that the Defendant violated Article 23(1)3 of the Monopoly Regulation and Fair Trade Act in relation to the offering of rebates to medical care institutions (amended by Presidential Decree No. 20360 of Nov. 2, 2007), “an act of inducing customers of competitors by offering or offering unfair or excessive profits in light of normal transaction practices” under Article 36(1) [Attachment 1](d)(a) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 20360 of Nov. 2, 2007), which was sentenced by the Fair Trade Commission to an administrative disposition such as imposition of a penalty surcharge, etc., and the Defendant was sentenced to a judgment against the competitor in an appeal litigation, and the judgment became final and conclusive.

However, in full view of the following facts and the purport of the entire pleading as seen earlier, the fact that the Defendant received an administrative disposition, such as imposition of a penalty surcharge, in relation to the offering of rebates, from the Fair Trade Commission, and the judgment became final and conclusive, and the evidence submitted by the Plaintiffs alone is insufficient to recognize that the Defendant conspired with the medical care institution to resell the Plaintiff, a final consumer, by raising the price of the rebates offered to the medical care institution as equivalent to the amount of rebates offered to the medical care institution, and there

1. ① In this case, the Fair Trade Commission determined that the Defendant’s offering of rebates to a medical care institution constituted an act of unfairly inducing competitors to deal with oneself in violation of Article 23(1)3 of the Fair Trade Act, and did not determine that the act was an unfair collaborative act that distorts the pricing process and limits mutual competition by impairing the price reduction or causing price increase in the pharmaceutical price.

In addition, Article 23(1)3 of the Fair Trade Act, Article 36(1) [Attachment Table 1-2] 4(1) of the Enforcement Decree of the Fair Trade Act (hereinafter “Fair Trade Act”) prohibits unfair solicitation of customers from infringing on consumers’ reasonable choice through comparison of prices, quality, and services due to provision of unfair profits, while maintaining fair competition order through competition among enterprisers in the relevant industry (see Supreme Court Decision 2013Da212066, Mar. 27, 2014). It is difficult to deem that the Defendant asserts that other pharmaceutical companies which are competitors have suffered damages due to its violation, and that the Defendant may claim damages against the Defendant, and that the Plaintiffs, who purchased the medicine manufactured by the Defendant, can immediately claim damages on the ground of the Defendant’s violation.

② In fact, the real transactions, which were in force at the time of the instant case, functioned as “a fixed price” under the reimbursement system. Under such circumstances, medical care institutions were able to file a claim for the notice to the Health Insurance Corporation and receive all of them. As such, medical care institutions did not have any motive or need to negotiate with the Defendant to maintain the publicly notified maximum price in collusion with the Defendant.

(3) Even if the Defendant committed an act of offering rebates, etc. with a medical care institution for maintaining and expanding transaction with the medical care institution, it is difficult to readily conclude that such act constitutes a tort that restricts price competition by distorted the process of price formation, such as unfairly raising the price of the drug in collusion with the medical care institution as much as the amount of rebates offered, or collusion with the insurance-related maximum amount to continue to exist.

2) In principle, whether or not the damage claimed by the plaintiffs has been proved) property damage caused by the tort refers to the difference between the property disadvantage caused by the illegal harmful act and the property disadvantage caused by the illegal harmful act, i.e., the property condition that would have existed without the tort and the property condition after the illegal act became effective (see, e.g., Supreme Court Decisions 98Da39633, Nov. 10, 200; 2002Da12659, Jan. 26, 2006). Since the burden of proving the amount of such damage is the plaintiff, the victim, claiming for damages, the burden of proving the amount of such damage is (see, e.g

3. Supreme Court Decisions 93Da57100 Decided November 11, 201; 2010Da18850 Decided July 28, 201, etc.). The Plaintiff is liable to prove the status of the property which would have existed without tort and what the status of the property after the tort became effective.

B) The plaintiffs asserted that the price of the medicine was unfairly claimed as a substitute for the proportion of the total amount of rebates provided to the medical care institution by the defendant to the total amount of pharmaceutical products sold to the medical care institution (30. 17%). Thus, the plaintiffs asserted that the above proportion of the pharmaceutical price of the instant pharmaceutical product paid by the plaintiffs as their own share should be deemed to have been claimed as a substitute for the amount of damages.

In light of the following circumstances, the evidence submitted by the plaintiffs alone is insufficient to deem that there is proof of damages due to increase or distortion of the prices of individual medicines claimed by the plaintiffs, and there is no other evidence to acknowledge this otherwise.

① Although the offering of rebates to a pharmaceutical company’s medical care institution is affected by the formation of a pharmaceutical price, insofar as the purpose of offering rebates lies in inducing or promoting the adoption of the specific supplier’s products and the continuous use of the products, it cannot be readily concluded that any other form of sales promotion and promotional cost increase, etc. would not occur if the pharmaceutical company did not offer rebates. Therefore, it cannot be readily concluded that the Defendant’s offering of rebates, as alleged by the Plaintiffs, affects the pharmaceutical price or that the medical care institution unfairly excessive medicine costs in violation of the National Health Insurance Act.

② Also, it is reasonable to view that there is a difference in the amount of rebates offered for each individual drug and the price fluctuation therefrom. As such, in relation to the Plaintiffs’ proof of damages arising from the Defendant’s offering of rebates, all drugs cannot be assessed by generalizing the amount of damages as alleged by the Plaintiffs. Ultimately, it should be determined whether the price of each individual drug purchased by the Plaintiffs increases to a certain extent due to the offering of rebates

However, in the instant case, the Plaintiffs committed the Defendant’s act of offering rebates regularly without any assertion or proof as to these issues, and even if the intent to provide rebates to the Plaintiffs was not offered, the Plaintiffs suffered losses from the overall perspective, and the amount of said damages are also calculated by calculating the arithmetic average of the entire medicines subject to the offering of rebates. Therefore, it is difficult to view that the Plaintiffs’ assertion and the evidence presented as above are insufficient to prove that the price of the medicines purchased by the Plaintiffs increased or distorted to a certain extent due to the Defendant’s offering of rebates.

C) In addition, the Plaintiffs asserts that, where a pharmaceutical company provided rebates, the Ministry of Health and Welfare may reduce the upper limit of the publicly notified amount of the relevant medicine pursuant to the Standards for Calculation of the Purchase Amount of Medicines and Materials for Medical Treatment (Notice No. 2003-48, Sept. 1, 2003, amended by Ministry of Health and Welfare, No. 2003), the Defendant is liable for compensating for damages for the reduced price portion equivalent to the amount of rebates.

However, insofar as there is no specific assertion or proof regarding the Defendant’s act of offering rebates that the Defendant’s upper limit of the notice was actually reduced ex officio according to the above notice, or that the Defendant’s act constitutes an act subject to the above notice, it is difficult to view that the amount of rebates offered is the damage suffered by the Plaintiffs, or that the medical care institution purchases the drug at the price reduced by the amount corresponding to the corresponding portion of the rebates amount, and resells the reduced drug at the price to the end consumers.

D) The plaintiffs asserts that the plaintiffs' claims in this case should be accepted in accordance with the provisions of Article 57(2) of the Fair Trade Act, even if the plaintiffs' assertion and proof alone cannot be seen to clearly prove the damages to the plaintiffs.

However, in order to apply the above provision in relation to the claim for damages of this case as alleged by the plaintiffs, the fact that damage occurred to the plaintiffs due to the defendant's violation of the Fair Trade Act should be proved first, and the defendant's act of offering the drug rebates constitutes an act of violating the Fair Trade Act as an unfair act of inducing customers. However, as seen earlier, as long as it is not proved that the medical care institution claims an excessive amount equivalent to the rebates amount when the actual transaction is calculated, or that the price of the drug purchased by the plaintiffs increased, there is no room to apply the above provision as to the proof of damages, and therefore, the plaintiffs' assertion is without merit.

3) If the Defendant’s offering of rebates and the damages claimed by the Plaintiffs are liable for damages arising from a tort, there should be a proximate causal relationship between the unlawful act and the damages arising therefrom. The existence of such proximate causal relationship should be determined by comprehensively taking into account the probability of the occurrence of the outcome, the mode of the illegal act, and the nature of the benefits from the infringement (see, e.g., Supreme Court Decisions 2004Da1162, May 11, 2007; 2010Da102755, Apr. 26, 2012).

B) However, considering the following circumstances together with the aforementioned circumstances, even if the Plaintiffs, as alleged by the Plaintiffs, purchased medicines at a price that includes the amount equivalent to the rebates value from a medical care institution, it is difficult to view that there was a proximate causal relationship between the damage and the Defendant’s act of offering rebates to the medical care institution, even if the Plaintiffs purchased the medicines at a price that contains the amount equivalent to the rebates value.

① After the implementation of the repayment system, medical personnel and council members claimed and received patient’s own charges and medical care benefit costs on the basis of the maximum price publicly notified by the Minister of Health and Welfare, and each pharmaceutical company and drug wholesaler also engaged in business activities for medical institutions and council members on the premise that the price of the pharmaceutical products is determined and publicly notified individually, without any need to negotiate on the price of the pharmaceutical products. Accordingly, since the actual transaction is paid at least 99% of the number of pharmaceutical products paid after the implementation of the repayment system, it was actually operated as publicly notified in the previous public notice system, this is the case holding that: (a) since the maximum price publicly notified by the Minister of Health and Welfare under the repayment system functions as “actual fixed price in the pharmaceutical market,” the substance of rebates offered to medical care institutions by the Defendant is not the case where the actual transaction price of the pharmaceutical products offered to the medical care institutions in the form of a discount or discount to the medical care institutions; and (b) it is not the case where the Defendant directly provided the medical products to the medical care institutions in the form of an incentive or discount.

③ Even if the Defendant reflected the considerable portion of promotion and promotional expenses increased in the course of offering rebates as above on the pharmaceutical price, it is not reasonable to conclude that the Defendant’s act of price fixing is unlawful in light of the fact that there is no assertion or proof that it violates the relevant statutes relating to price regulation, and that the price determination of the goods is, in principle, belonging to the supplier’s authority in the market economy system.

④ As seen earlier, in light of the structural characteristics of the pharmaceutical market (a broad industrial regulation, third-party payment system, information incomplete or non-titled) and the actual transaction functioned at a fixed price, it is difficult to deem that there was any motive or economic incentive to purchase medicines at low price or to resell them at low price, which would have been offered by a medical care institution without the Defendant’s offering of rebates, to the extent of the amount equivalent to the price of the rebates received from the Defendant. In light of the foregoing, the Plaintiffs asserted to the effect that: (a) the pharmaceutical company’s offering of rebates to a medical care institution is reduced ex officio; (b) the pharmaceutical price of the relevant medicines is reduced; (c) even if the Defendant offered rebates to the medical care institution; (d) the actual market’s offering of rebates to the medical care institution is bound to be reduced to the extent equivalent to the rebates amount; (e) the offering of rebates to the Plaintiff at the time of the first revision of the medical care benefits regulations on January 13, 2009; and (e) the offering of rebates to the consumers at low price discount.

⑤ As seen above, the practice of receiving rebates for drugs is caused by structural factors, such as the distribution system of drugs and unreasonable medical insurance medicine, and it cannot be denied that such practices are combined with each other, causing various unreasonable problems, such as the formation of drug prices according to the upper limit published by the Plaintiffs. However, in this case, the civil liability for damages that the Plaintiffs seek against the Defendant should be determined as to whether individual consumers who finally purchased drugs from the medical care institutions incurred legal losses due to the offering of rebates to the medical care institutions of the pharmaceutical companies, and whether there is proof thereof. Such other issues should be considered different. Various problems arising from the act of offering rebates for drugs by the pharmaceutical companies should be determined based on the principles of demand and supply and price competition. In addition, it is desirable to resolve the measures such as enhancing the restriction on the offering of rebates for the offering of rebates, taking strict measures to recover the amount of the recovered medicines, and reflecting the upper limit of the amount of the recovered medicines appropriately.

E. Sub-committee

Therefore, the evidence submitted by the Plaintiffs in this case alone is difficult to view that the evidence presented by the Defendant alone is insufficient to prove that there was a proximate causal relationship between the Defendant’s act of offering rebates to the Defendant’s medical care institution and the damages claimed by the Plaintiffs, by collusioning with the medical care institution to increase the price of the medicines purchased by the Plaintiffs to the extent equivalent to the amount of the offering of rebates to the end-user. There is no other evidence to

4. Conclusion

Therefore, the plaintiffs' claims of this case are all without merit, and the judgment of the court of first instance with the same conclusion is just, and the plaintiffs' appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Gin-jin

Judges Gamburh

one part is included in the claim amount against the defendant, and only that part is purchased by the plaintiff C** 8mg is against the defendant.

The amount of claim is the amount claimed against the defendant, but the above drugs are manufactured and sold by 00000 corporation, not the defendant.

is medicine.

2) Article 57 of the Fair Trade Act

In order to prove the amount of damage although it is found that the damage was caused by an act in violation of the provisions of this Act.

Where it is extremely difficult to prove necessary facts in light of the nature of the relevant facts, the court shall administer the whole pleadings.

A reasonable amount of damages can be recognized based on the result of examination of evidence.