2. However, if a pharmacy operator sells drugs in excess of the actual purchase price, even if the sale price is below the factory price, it cannot be deemed to constitute the sale of drugs at an improper price as provided in subparagraph 6 above.

In other words, Article 14 (2) 2 of the Pharmaceutical Affairs Act provides that "a distributor of a pharmacy, etc. shall not disturb market order or induce consumers to sell drugs by selling them at an unfair method or price, such as selling them at a price lower than the factory price without any justifiable reason, which was enforced at the time of the defendant's act of selling the drugs of this case." However, the above notice was made only based on the provision on delegation of Article 50 of the Pharmaceutical Affairs Act related to the entry of the pharmaceutical price, Article 74 of the Enforcement Rule of the Pharmaceutical Affairs Act, Article 38 of the Pharmaceutical Affairs Act related to the sales order of the drugs in this case, Article 57 (1) 6 of the Enforcement Rule of the Pharmaceutical Affairs Act, and Article 14 (2) 2 of the above notification does not apply to this case as a penal law has no grounds for delegation of superior laws, and therefore, it shall not be deemed that a pharmacy operator disturbs the market order or induces consumers by selling the drugs at a price higher than the actual selling price of the drugs.

In addition, Article 57 (1) 6 of the Enforcement Rule of the Pharmaceutical Affairs Act amended by Ordinance of the Ministry of Health and Welfare No. 92 of January 6, 199 provides that "the founder of a drug wholesaler or pharmacy, etc. shall sell drugs at an improper method, such as providing premiums, such as prize goods and gift goods, or at least the price actually purchased (referring to the price calculated by reflecting the purchase price in cases of purchasing a part of a drug at a discount or at a price received without compensation) and shall not disturb the market order of drugs or attract consumers."

3. Thus, in order to determine whether the defendant's act constitutes "a case that disturbs the market order of drugs by selling drugs at an unfair price" as provided in Article 57 (1) 6 of the Enforcement Rule of this case, the court below found the price of drugs actually purchased by the defendant, but the court below found the defendant guilty on the ground that the price of the drug sold by the defendant is less than the factory price, without specifying it, and the court below did not err in the interpretation of Article 57 (1) 6 of the Enforcement Rule of this case and did not complete all the deliberation. The ground of appeal pointing this out is with merit.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Shin Sung-sung (Presiding Justice)