B. The case reversing the judgment of the court below which recognized the violation of the Pharmaceutical Affairs Act on the grounds of the misapprehension of legal principles and violation of rules of evidence

B. The case reversing the judgment of the court below that recognized the facts charged that the defendant sold herb without permission for drug wholesale business in light of the composition, shape (containers, packaging, design, etc.), name and indication of the goods sold by the defendant, efficacy, efficacy, effect, usage, volume, publicity or explanation at the time of sale, etc., and found that there was an error of law by misapprehending the legal principles as to the act of selling herb, or by recognizing facts without any evidence, since it was not sufficient to readily conclude that the goods sold by the defendant were sold herb as a drug.

Pursuant to the provisions of Article 2 (4) and (5) of the Pharmaceutical Affairs Act, drugs are listed in the Korean Pharmacopoeia and used for the purpose of diagnosis, treatment, mitigation, treatment or prevention of diseases of human beings or animals, and are not machinery and tools, and they are used for the purpose of exerting pharmacological influence on the rescue function of human beings or animals, and they refer to raw drugs extracted from animals, plants or minerals and dried, cut, or refined in their original forms mainly. The issue of whether they constitute drugs is defined as above shall be determined by comprehensively considering the ingredients, shapes (containers, packaging, design, etc.), name and indicated purpose of use, efficacy, efficacy, efficacy, volume, propaganda or explanation at the time of sale, etc., and if it is recognized or claimed that they are used for the above purpose except for those recognized as agricultural products or food when considering the general public in light of their overall contents, shape, efficacy, efficacy, volume, etc., they shall be regulated by the Pharmaceutical Affairs Act (see Supreme Court Decision 200Do1384, Apr. 16, 1987).

According to the reasoning of the judgment below and the judgment of the court of first instance, the court below accepted the defendant's statement in the court of first instance, and the investigation report and custody certificate of the police preparation, which are the evidence cited by the judgment of the court of first instance, as they are, and determined that "the defendant sold gold 1,200,000,000 won for 60 months, including that "the defendant sold gold 1,20,000,000 won to the oriental medical clinic and oriental medical clinic at the upper point of the defendant's management where the defendant is located in Yongcheon-si, Yongcheon-si without permission of drug wholesale business, from April 1, 1989 to March 17, 1994."

However, according to the records, the defendant's goods sold by the defendant since the first instance court's decision were merely supplied to herb wholesalers or herb doctors by simply washing, drying, cutting and cutting medicinal materials collected from the farmers of the mountainous district on their own leased farmland and supplying them to them as they are, and there is no indication of efficacy, efficacy, effect, etc., or publicity advertisement thereon, etc., which may be mistaken for medicine, and this is a change to the purport that it is not only a sale of medicine, but also a sale of medicine. Meanwhile, the above investigation report and custody certificate of the police's preparation were submitted as evidence by the prosecutor or the first instance court or the court below was bound into the investigation records of this case without any trace that the prosecutor duly adopted and investigated as evidence. However, even according to the statement, the above investigation report was merely submitted by the police officer after confirming herb drugs displayed by the defendant to sell them at the defendant's store, and the above investigation report was written as evidence of custody by the defendant, and most of the above evidence 60k were stated as the content that the defendant's storage is only 60g.

Therefore, it is difficult to readily conclude that the evidence cited by the court below alone sold herb drugs, and even after examining the record, there is no evidence to deem the instant product as a drug in light of its component, shape (container, package, design, etc.), name and purpose of use indicated therein, efficacy, effect, usage, volume, publicity or explanation at the time of sale.

Ultimately, the judgment of the court below is erroneous in the misunderstanding of legal principles as to the act of selling medicines or finding facts without evidence, and it is clear that such illegality affected the judgment, and therefore, it is reasonable to point this out.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Chocheon-sung (Presiding Justice)