[2] The case holding that the above goods sold by a herb seller cannot be deemed as medicine under the Pharmaceutical Affairs Act, in case where the herb seller did not arbitrarily select, combine, or process and sell the above goods, but did not display the efficacy, efficacy, effect, etc., or display the advertisement or volume of efficacy, effect, etc. thereof, or explain the above goods, etc., but did not constitute medicine under the Pharmaceutical Affairs Act, in a case where the herb seller sold them, by calculating the price per gram and selling them at a low amount of quantity requested by ordinary consumers by putting herb materials such as shot, sugar, yellow, etc. in its own store without any separate indication

According to the provisions of Article 2 (4) and (5) of the Pharmaceutical Affairs Act, the term "pharmaceuticals" means articles listed in the Korean Pharmacopoeia, which are not non-pharmaceutical drugs, and articles used for the purpose of diagnosis, treatment, mitigation, treatment or prevention of diseases of human beings or animals, which are not appliances, machinery or equipment, and articles used for the purpose of exerting pharmacological influence on the structural function of human beings or animals, other than appliances, machinery or equipment. The term "herb drugs" means raw drugs extracted from animals, plants, or minerals, and dried, cut, or refined in their original forms mainly. Whether drugs constitute drugs as above shall be determined by comprehensively considering their ingredients, shape (containers, packaging, packing, etc.), name and purpose of use indicated, efficacy, effect, volume, volume, propaganda or explanation at the time of sale, etc., and shall be determined by the Supreme Court Decision 193Do635 delivered on July 15, 1995 (see, e.g., Supreme Court Decision 2008Do634, Jul. 16, 2005). 193

The court below found that the defendant's goods sold by the defendant can not be deemed as being recognized as being used for the purpose prescribed by the Pharmaceutical Affairs Act or claimed as having efficacy or efficacy as being used for the purpose prescribed by the Pharmaceutical Affairs Act, and sold them to the general consumers. The court below determined that the goods sold by the defendant cannot be deemed as a drug under the Pharmaceutical Affairs Act because they are not recognized as being used for the purpose of the Pharmaceutical Affairs Act, or they cannot be deemed as being used for the purpose of the Pharmaceutical Affairs Act. In light of the above legal principles and records, the court below erred by misapprehending the legal principles or misapprehending the legal principles as to facts finding and finding facts and finding facts, and the pharmaceutical products can not be deemed as unlawful.

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

Justices Kim Yong-dam (Presiding Justice)