2. The costs of lawsuit are assessed against the plaintiffs.

A. From March 1998 to March 2005, the Plaintiffs were admitted to and graduated from the Hancheon University Oriental Medicine Resource Department, etc., or were scheduled to graduate on February 2, 2009, and the Plaintiff’s college department, the date of admission, and the date of graduation are as shown in the Plaintiffs’ indication and the process of acquiring bachelor’s degrees.

B. Although the Plaintiffs prepared to apply for the examination conducted by the president of the National Health Examination Institute for Korea under the jurisdiction of the Defendant, the Defendant denied the Plaintiffs’ qualifications for applying for the examination on the grounds that the license for herb pharmacist is limited to those who graduated from the college and received the degree of herbal medicine, under Article 4(2) of the Pharmaceutical Affairs Act, which provides for qualification and license for herb pharmacist.

[Ground of recognition] Facts without dispute, the purport of the whole pleading

2. The assertion and judgment

A. The plaintiffs' assertion

(1) Before the amendment, Article 3-2(2) of the Pharmaceutical Affairs Act (amended by Act No. 4731 of Jan. 7, 1994, and before the amendment, Act No. 7635 of Jul. 29, 2005; hereinafter the same) provides that “only those who completed and graduated from a college-related subject prescribed by the Presidential Decree” shall be required to graduate from the department of oriental medicine, despite the fact that the former Enforcement Decree (amended by Presidential Decree No. 15301 of Mar. 6, 1997, which was amended by Presidential Decree No. 19425 of Mar. 29, 2006, which was amended by Presidential Decree No. 3-2 of the Enforcement Decree No. 19475 of the Act, which was amended by Presidential Decree No. 19475 of Jul. 19, 209).

Persons eligible for the national examination for herb pharmacists under Article 3-2 of the Enforcement Decree before the amendment (hereinafter referred to as the "Enforcement Decree before the amendment").

(2) However, Article 4 (2) of the current Pharmaceutical Affairs Act (amended by Act No. 7635 of Jul. 29, 2005, which was introduced as Article 3-2 (2) of the Pharmaceutical Affairs Act) provides that "a license for herb pharmacist shall be granted to a person who graduated from a college and obtained a bachelor's degree in oriental medicine at a college, who passed a national examination for pharmacists." Article 13 of the Addenda (amended by Act No. 2 of the Addenda of Apr. 11, 2007, which was introduced as of Jul. 29, 2005) provides that "a license for herb pharmacist shall exceptionally be granted qualification as of Mar. 6, 1997 by a retroactive legislation to deprive the plaintiffs of their eligibility to apply for an examination for pharmacists.

(3) Accordingly, the Plaintiffs still are eligible to apply for the national examination for herb pharmacists pursuant to Article 3-2 of the Enforcement Decree before the amendment.

(b) Related statutes;

Pharmaceutical Affairs Act

Article 4 (Qualifications and Licenses for Herb Pharmacists)

(1) A person who intends to become a herb pharmacist shall obtain a license from the Minister for Health, Welfare and Family Affairs.

(2) A license for herb pharmacist under paragraph (1) shall be granted to a person who has graduated from a university, received a bachelor's degree in herb science, and passed the national examination for herb

The Addenda No. 8365, April 11, 2007

Article 13 (Special Cases concerning Granting of Licenses for Herb Pharmacists)

Any of the following persons who have completed not less than 95 credits of herb-related subjects prescribed by Presidential Decree No. 14319 of the Enforcement Decree of the Pharmaceutical Affairs Act (Act No. 7376) by delegation under Article 3-2 (2) of the amended Pharmaceutical Affairs Act (Act No. 7376), and passed the national examination for pharmacists, shall be granted a herb pharmacist's license, notwithstanding the amended provisions of Article 4 (2):

1. A person who was enrolled in a college or university (limited to departments other than herb departments) majoring in pharmacy as of March 6, 1997 and who was enrolled in the college or university before the year 196;

2. A person who graduated from a college specializing in pharmacy as of March 6, 1997;

3. A person who was enrolled in a college, other than a college specializing in pharmacy as of March 6, 1997, and graduated from a college, other than a college specializing in pharmacy, before the year 196, or a person who graduated from a college specializing in pharmacy;

former Pharmaceutical Affairs Act (amended by Act No. 8365 of April 11, 2007)

Article 3-2 (Qualifications and Licenses for Herb Pharmacists)

(1) Those who intend to be herb pharmacists shall obtain licenses from the Minister of Health and Welfare under the Ordinance of the Ministry of Health and Welfare.

(2) A license for herb pharmacist under paragraph (1) shall be granted to any person who has graduated from a college or university, and obtained a bachelor’s degree for herb drugs, and passed the herb examination for herb pharmacists.

The Addenda No. 7635, July 29, 2005

Article 2 (Special Cases concerning Granting Licenses for Herb Pharmacists) Any of the following persons, who has completed not less than 95 credits in herb-related subjects prescribed by the amended Decree No. 14319 of the Enforcement Decree of the Pharmaceutical Affairs Act (Presidential Decree No. 14319) and passed a national examination for pharmacists under Article 3-2 (2), and who has passed the national examination for pharmacists, notwithstanding the amended provisions of Article 3-2 (2):

1. A person who was enrolled in a college or university (limited to departments other than herb departments) majoring in pharmacy as of March 6, 1997 and who was enrolled in the college or university before the year 196;

2. A person who graduated from a college specializing in pharmacy as of March 6, 1997;

3. A person who was enrolled in a college, other than a college specializing in pharmacy as of March 6, 1997, and graduated from a college, other than a college specializing in pharmacy, before the year 196, or a person who graduated from a college specializing in pharmacy;

former Pharmaceutical Affairs Act (amended by Act No. 7635 of July 29, 2005)

Article 3-2 (Qualifications and Licenses for Herb Pharmacists)

(1) Those who intend to be herb pharmacists shall obtain licenses from the Minister of Health and Welfare under the Ordinance of the Ministry of Health and Welfare.

(2) A license for herb pharmacist as referred to in paragraph (1) shall be granted to a person who has completed and graduated from a college, and passed a national examination for pharmacists registered with the Ministry of Education and Human Resources Development. The former Enforcement Decree of the Pharmaceutical Affairs Act (amended by Presidential Decree No. 15301, Mar. 6, 1997; Presidential Decree No. 19425, Mar. 29, 2006)

Article 3-2 (Qualification for Application for Herb Examination for National Examination)

The term “person who has completed and graduated from a department related to oriental medicine as determined by the Presidential Decree” in Article 3-2 (2) of the Act means a person who has graduated from a department related to oriental medicine.

Addenda

(1) This Decree shall enter into force on the date of its promulgation.

Article 2 (Transitional Measures concerning Qualifications for Taking Examinations for Herb Pharmacists)

Notwithstanding the amended provisions of Article 3-2, the previous provisions shall govern the qualifications for applying for the herb pharmacist examination of persons falling under any of the following subparagraphs at the time this Decree enters into force:

1. Prior to the year of 196, as a person who attends a college of pharmacy (limited to departments other than herbal medicine departments);

person admitted to the court;

2. A person who has graduated from a college of pharmacy;

3. A person who has been enrolled in a college, other than a college specializing in pharmacy, before the year of 199, and who has been enrolled in pharmacy;

A graduate from a university other than a major university;

Enforcement Decree of the former Pharmaceutical Affairs Act (amended by Presidential Decree No. 1446 of December 23, 1994, which was amended by Presidential Decree No. 1446 of March 6, 1997)

Article 3-2 (Minimum Subjects Related to Herbs) The subjects related to herb drugs and those to be completed as referred to in Article 3-2 (2) of the Act shall be as follows:

1. Subjects related to the production and manufacture of herb drugs (not less than 15 credits): Natural substances chemistry and practice, medicine and practice, etc.;

2. Departments related to preparation of herb drugs (not less than 30 credits): Primaryology and practice, biochemical medicine and practice, herbal therapy and practice, herbal eradication and practice, limited practice;

Gylon of pharmacy, oriental medicine science, etc.

3. Subjects related to the appraisal of herb drugs (not less than five credits);

4. Departments related to the storage and distribution of herb drugs (not less than five credits); distribution of herb resources, herb storage, etc.;

5. Other studies on the basis of oriental medicine (not less than 40 credits); biochemical and practical training, pharmaceutical microbiology and practical training, physiological science, toxicity.

School, pharmaceutical law, autopsy, pharmaceutical chemical, oriental medicine, medicinal plant, etc.

C. Determination

(1) First, with respect to the validity of Article 3-2 of the Enforcement Decree of the amended Act and paragraph (2) of the Addenda thereto, the human resources training system in the field of health and medical services of our country generally takes a system that grants the pertinent health and medical license through a national examination in each field by providing those who completed a required course at a university or department established to train human resources in the field of occupation. As such, granting the relevant qualification for the national examination only to those who previously contributed to the relevant field established for the purpose of training human resources for health and medical services. More than anything else, granting the relevant qualification for the national examination is not sufficient to secure the quality of health and medical personnel because the employees in the field of health and medical services have engaged in activities that directly affect human life and health, and thus making the pass of the national examination whose level of professional knowledge is limited as the primary requirement for obtaining the license. To this end, it is necessary to closely grant the training course established for major education in the relevant field and equipped with facilities necessary for high-quality education, and to ensure the completion of the education course directly and directly related to human health and work.

Thus, even in the case of a herb pharmacist who is to be in charge of preparing herb drugs which directly affect human life and health, he/she intends to grant qualifications to apply for the national provisional examination to grant a herb pharmacist's license only to a person who has completed and graduated from a department established to train herb pharmacist's human resources, as well as to a department established to train herb pharmacist's human resources.

Article 3-2 of the Enforcement Decree of the Amendment should be regarded as the intention of legislators that contained the contents of the amendment, so it is valid within the delegation scope of Article 3-2(2) of the Act before the amendment.

As seen above, the "person who completed and graduated from a college-related subject prescribed by Presidential Decree" referred to in Article 3-2 (2) prior to the amendment refers to the "person who completed and graduated from a department established for the purpose of training herb human resources in the future pharmacy university or the Han medical school" in full view of the history of the above legal provision and the background of the establishment of the herb pharmacist system, the systematic relationship with other legal provisions granting a license to doctors, herb doctors, and pharmacists, and the healthcare human resources training system, etc., it is reasonable to view that "a person who completed and graduated from a department established for the purpose of training herb human resources in the future pharmacy university or the Han medical school" as "a person who completed and graduated from a department established for the purpose of training herb human resources (see Constitutional Court Order 96Hun-Ma226, Nov. 27, 197).

Therefore, Article 3-2 of the amended Enforcement Decree provides that only graduates of oriental medicine department shall be eligible to take the examination for herb pharmacists, and it cannot be viewed as deviating from the delegation of Article 3-2(2) prior to the amendment.

In addition, as seen earlier, Article 3-2 of the Enforcement Decree of the amended Act provides that only the graduates of oriental medicine shall apply for the Korean pharmaceutical examination, and it shall not be deemed to have exceeded the delegation scope under Article 3-2(2) of the Act. The Plaintiffs cannot be deemed to have suffered discrimination due to the provision of Paragraph (2) of the Addenda of the amended Enforcement Decree, which became effective since March 198, 198 after the enforcement of the above Decree. Accordingly, the Plaintiffs cannot be deemed to have received discrimination by the Plaintiffs, who entered the Kancheon University Oriental Medicine Resource Department, due to the provision of Paragraph (2) of the amended Enforcement Decree.

(2) Furthermore, Article 4(2) of the Pharmaceutical Affairs Act and Article 13 of its Addenda (No. 8365 of Apr. 11, 2007) limit the herb pharmacist’s business territory to a person who graduated from a private college or college and received a bachelor’s degree in herb medicine, who passed the examination for the Korean herb pharmacist’s country, as seen earlier, considering the unique circumstance that the scope of the herb pharmacist’s business territory directly affects human life and health. In light of the foregoing supplementary provision, the citizens who can be infringed on trust interest due to the enforcement of the amended Enforcement Decree, etc., the above provision cannot be said to go against the principle of equality under the Constitution. Accordingly, the Plaintiffs’ above assertion is without merit.

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit, and it is so decided as per Disposition.

Judges 1000

Judges 1000