[보건범죄단속에관한특별조치법위반(부정의약품제조등)·약사법위반][미간행]
Concept and judgment criteria of medicines subject to the Pharmaceutical Affairs Act
Article 2 (4) of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of April 11, 2007)
Supreme Court Decision 99Do2328 Decided July 13, 2001 (Gong2001Ha, 1890) Supreme Court Decision 2001Do1429 Decided January 15, 2004 (Gong2004Sang, 368) Decided February 13, 1998
Defendant 1 and 12 others
Defendants
Law Firm Ratep, Attorneys Lee Dong-min et al.
Busan High Court Decision 2005No660 decided Jan. 12, 2006
All appeals are dismissed.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. In light of the legislative purpose and purport of the Pharmaceutical Affairs Act, and the contents and purport of Article 2(4) of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of Apr. 11, 2007; hereinafter the same shall apply), a medicine under the former Pharmaceutical Affairs Act, other than those listed in the Korean Pharmacopoeia under Article 2(4)1, shall be deemed to be used for the diagnosis, treatment, mitigation, treatment or prevention of diseases of human beings or animals or for the purpose of exerting pharmacological functions in the structure or function of human body (excluding machinery, apparatus, cosmetics), and it shall be deemed to be a concept including all the drugs (excluding machinery, apparatus, etc.) with the intention of exerting pharmacological functions in the structure or function of human beings or animals, regardless of the existence of any efficacy in the pharmacological action, and the purpose of use, efficacy, efficacy, effect, dosage, volume of use, publicity or explanation indicated therein, etc., and if it is deemed to be subject to regulation 100,014 of the former Pharmaceutical Affairs Act, it shall not be deemed to be subject to regulation 20.
Examining the records in accordance with the above legal principles, since the "Saman" of this case is recognized as being used for treatment or claimed as having medicinal effects in light of its ingredients, manufacturing methods, manufacturing purposes, sale and publicity methods, etc., and it constitutes a medicine as defined in Article 2 (4) 2 of the former Pharmaceutical Affairs Act, and thus, the judgment of the court below to the same purport is just, and there is no error of law by misapprehending the legal principles on pharmaceutical products as defined in Article 2 (4) of the former Pharmaceutical Affairs Act.
2. According to the records, it is reasonable to view that the Defendants, as an oriental medical doctor, had dolusence of the circumstances that the Plaintiff constitutes drugs within the above meaning. Thus, the judgment of the court below to this purport is just, and there is no error of law such as misconception of facts due to violation of the rules of evidence.
3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)