[영업정지처분취소][공1999.3.1.(77),377]
The case holding that even if a distributor, such as a pharmacy, sells medicines at a lower price than the factory price notified by him/her, such sales does not constitute an act of disturbing the market order of drugs or of inducing consumers by selling medicines at an unfair method or price prescribed in Article 57 (1) 6 of the former Enforcement Decree of the Pharmaceutical Affairs Act.
Articles 38 and 69(1)3 and (3) of the Pharmaceutical Affairs Act; Articles 57(1)6 and 89 [Attachment 6] of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by the Ordinance of the Ministry of Health and Welfare No. 50 of May 21, 1997); Article 2 subparag. 2, 6(3), 14(2)2, and 15(1) of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by the Ordinance of the Ministry of Health and Welfare No. 50 of May 21, 1997); Article 2 subparag. 2, 6(3), 14(2)2, and 15(1); Article 69(3) of the same Act; Article 57(1)6, and Article 89 [Attachment 6] of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by the Ordinance of the Ministry of Health and Welfare No. 50 of May 21, 1997); Article 58(1)6(2) [Attachment 6) of the former Enforcement Rule of the Pharmaceutical Affairs Act.
Articles 38 and 69(1)3(3) of the Pharmaceutical Affairs Act, Article 57(1)6 of the Enforcement Decree of the Pharmaceutical Affairs Act, and Article 89 [Attachment Table 6] 38(h) of the separate standards
Busan High Court Decision 200Na14488 decided May 2, 2001
Busan City Mayor (Attorney Kim Jong-soo, Counsel for the defendant-appellant)
Daegu High Court Decision 96Gu12178 delivered on February 5, 1998
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. In light of Articles 38 and 69(1)3 and (3) of the Pharmaceutical Affairs Act, Articles 57(1)6 and 89 [Attachment 6] of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by the Ordinance of the Ministry of Health and Welfare No. 50 of May 21, 1997; hereinafter the same shall apply), Articles 2 subparag. 2, 6(3), 14(2)2 and 15(1) of the Enforcement Rule of the Pharmaceutical Affairs Act, and Articles 57(1)6 and 89 [Attachment 6] of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by the Ordinance of the Ministry of Health and Welfare No. 50 of May 21, 1997); Article 38 subparag. 38(h) of the same Act; Article 2 subparag. 2, 69(3), and 15(1) of the same Act; hereinafter the same shall apply); even if a distributor of a pharmacy, etc. sells drugs at a lower price notified under Article 6(3) of the Enforcement Rule, if there is justifiable reason to sell.
2. According to the reasoning of the lower judgment and the record, the Plaintiff’s purchase price of the instant drug from its wholesalers is 1,950 won and is merely 61.1% (1,950±3,190 x 100) which is notified as factory price. The Plaintiff sold the instant drug at a price lower than the purchase price, but rather than the purchase price. The instant drug was sold at a price higher than the above public notice. The standard for the lower limit of the selling price of the pharmacy, etc. was 4,50 won before it was amended as factory price from its purchase price to its new product on January 18, 1994, and the price was 3,190 won; the Minister of Health and Welfare, as a result of the investigation of the price of the instant drug, determined the price higher than that of the actual retail price at the 60% higher than that of the pharmaceutical product at the 4,000 if it was notified that there was no reasonable increase in the sale price of the pharmaceutical product at the 6,004, and more than that of the Korea Association.
Therefore, although there are some inappropriate expressions and insufficient points in the judgment of the court below, the decision of this case does not affect the conclusion that the disposition of this case is unlawful, and eventually, the appeal is without merit.
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Chocheon-sung (Presiding Justice)