[2] Whether a product used for a cosmetic is subject to regulation under the Pharmaceutical Affairs Act if it is used for a medicine (affirmative)

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 same Act that define drugs, drugs under the Pharmaceutical Affairs Act include both the purpose of diagnosing, alleviating, treating, or preventing diseases of human beings or animals, or the purpose of exerting pharmacological functions in the structure or function of human body, human beings or animals, other than those listed in the Korean Pharmacopoeia under Article 2(4)1 of the same Act. Whether drugs constitute drugs are classified into drugs under the Pharmaceutical Affairs Act, regardless of the existence of efficacy in the pharmacological action, shall be determined by comprehensively considering the purpose of use, efficacy, effect, efficacy, capacity, publicity, explanation, etc. indicated in the Pharmaceutical Affairs Act, with the exception of those recognized as cosmetics at the time of sale by the general public, they shall be deemed to be used for the above purpose and shall be subject to the regulation of the Pharmaceutical Affairs Act in light of the proviso to Article 2(4)1 of the same Act, and shall also be subject to the regulation of the cosmetics Act if they are used for the purpose of use (see Supreme Court Decision 2013Do6136, Jun. 27, 2013, 2013).

In light of the above legal principles and records, it is sufficient for the court below to recognize the facts based on the adopted evidence of the court of first instance as cited by the court below and the court of first instance, which were accepted by the court below, as being manufactured for the purpose of exerting pharmacological influence on the structure and function of human beings by improving women's sexual function or increasing sexual satisfaction. It can also be sufficiently recognized that the above medicinal effect has been claimed. Even if the defendant company imported algora for a license for the purpose of health, and advertised and sold algora for a license, it is recognized that it constitutes a medicine under Article 2 (4) of the Pharmaceutical Affairs Act of algora, so long as it is recognized as the use of the medicine as well as the above, the court below's rejection of the grounds for appeal as to the mistake of facts by the defendants, and there is no violation of the rules of evidence or the misapprehension of legal principles as to

2. The Defendants asserted that the crime of exaggerated advertising under the Pharmaceutical Affairs Act should be applied to the Defendants under the premise that algora is a cosmetic, but this part of the grounds of appeal on the premise that algora is a cosmetic since it constitutes the concurrent use of medicine or medicine as seen earlier.

3. The Defendants asserted that there was no intention to commit a violation of the Customs Act. However, according to the records, the facts that Defendant 1 was aware of the fact that he was used both as medicine and cosmetics, and the fact that he was manufactured separately for sale in Korea without using the manual when he was imported as a cosmetic when he was imported as a cosmetic, unlike the first import time. In this case, if the facts are the same, he was found to have intention to commit a violation of the Customs Act at the time of import of algora to Defendant 1, and Defendant 2 did not recognize the grounds for exemption under Article 281(1) of the Customs Act, and there were no errors in the misapprehension of legal principles as to intention to violate the Customs Act.

4. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)