(영문) 부산고등법원 2018.7.25. 선고 (창원)2018누22 판결

2. On February 24, 2012, the Defendant’s disposition of non-registration of the change in the registered matters of a pharmacy against the Plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On January 18, 1992, B, who is a doctor, completed the second floor building (hereinafter referred to as the "existing second floor building") on the ground of the 417m square meters of Sinnam Li (hereinafter referred to as "Li") and completed the registration of ownership on February 24, 1992. From that time, the first floor of the existing second floor building was used as "M internal clinic operated by the doctor M," and "N dental clinic operated by B".

B. A spouse B donated the existing 2nd floor building from B on October 20, 201, with C land and D large scale 137 square meters and E large scale 572 square meters adjacent thereto as the site, and the existing 2nd floor building was extended to the 4th floor of the total floor area of 996.841 square meters (hereinafter “the instant 4th floor building”). From around that time, the instant 4nd floor building consisting of four hospitals, including “the 4nd floor unit”, “N dental clinic”, “the 4nd floor unit,” “the 4nd floor unit,” “the 4nd unit,” “the 4th unit,” “the 4th unit,” “the 4th unit,” “the 4th unit,” and “the 4th unit,” “the 4th unit,” “the 4th unit,” and “the 4th unit,” respectively.

C. From December 16, 2011, the Plaintiff, a pharmacist, opened and operated a pharmacy in the name of “G pharmacy” in the F Ground Building. On the same day, the Plaintiff filed an application for change of pharmacy registration with the Defendant in order to move the above pharmacy to the instant single-story building.

D. On February 24, 2012, the Defendant: (a) in relation to the instant 4th floor building, the instant 4th floor building constitutes Article 20(5)2 of the Pharmaceutical Affairs Act (where a pharmacy is to be established in a facility or Gu of a medical institution; and (b) the establishment of the pharmacy falls under Article 20(5)3 of the said Act (where a pharmacy is established by dividing, altering or repairing part of the facility or site of a medical institution); and (c) between the instant 4th floor and the building of the instant 4th floor, on the ground that there was an exclusive passage between the instant 4th floor building and the building of the instant 4th floor (where a passage, such as an exclusive corridor, stairs, elevator, or footbridge, is installed or installed between a medical institution and the pharmacy, the instant disposition (hereinafter referred to as “instant disposition”).

E. The Plaintiff filed an administrative appeal seeking revocation of the instant disposition, but the Gyeongnam-do Administrative Appeals Commission dismissed the Plaintiff’s appeal on May 31, 2012.

F. The 4th floor building of this case, the 4th floor building of this case and the 10th floor building of G pharmacy are as follows (Evidence B No. 10) (the building located in the center of the photographic center is the building of this case on the 4th floor of this case, and the 'mal' is the 'G pharmacy operated by the plaintiff by the pharmacy located on the right side of the building of this case').

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-8, 13, 18, 19, Eul evidence Nos. 4, 5, and 10, video (including branch numbers, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Relevant statutes;

▣ 약사법제20조(약국 개설등록)② 약국을 개설하려는 자는 보건복지부령으로 정하는 바에 따라 시장·군수·구청장(자치구의구청장을 말한다. 이하 같다)에게 개설등록을 하여야 한다. 등록된 사항을 변경할 때에도 또한 같다.⑤ 다음 각 호의 어느 하나에 해당하는 경우에는 개설등록을 받지 아니한다.2. 약국을 개설하려는 장소가 의료기관의 시설 안 또는 구내인 경우3. 의료기관의 시설 또는 부지의 일부를 분할·변경 또는 개수(改修)하여 약국을 개설하는경우4. 의료기관과 약국 사이에 전용(轉用) 복도·계단·승강기 또는 구름다리 등의 통로가 설치되어 있거나 이를 설치하는 경우

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant single-story building is located on a parcel different from the instant 4th floor building; the site does not have been used as an exclusive parking lot for the existing 2nd floor building or the instant 4th floor building; and it is only used as a parking lot for the head of the past 5 days or neighboring residents, a bus stop site, etc.; thus, the instant 4th floor building and the instant 4th floor building are spatial and functionally divided. Therefore, the instant 4th floor building does not constitute “the building within or within the premises of a medical institution” under Article 20(5)2 of the Pharmaceutical Affairs Act.

2) D’s land, which is the site for the instant single-story building, was subdivided from around 16, 1964, before the construction of the existing second-story building, and was subdivided from around 16, 1964, and was not used as an exclusive parking lot for the building of the previous second-story building. There was no personal relationship with the owner H or his spouse, and there was no personal relationship with the Plaintiff. Therefore, the Plaintiff’s opening of a pharmacy in the instant multi-story building does not constitute “the establishment of a pharmacy by dividing, altering or repairing part of the facilities or the site of a medical institution” under Article 20(5) subparag. 3 of the Pharmaceutical Affairs Act.

3) The slope way in the direction of the instant single-rise building is a slope way for the disabled, including the disabled and the aged, who must be mandatorily installed in the direction of the instant single-rise building. If it is installed in the opposite part, it is inevitably installed in the direction of the instant building because there is a risk of traffic accident due to a vehicle using the parking lot located there. In addition, since the users of the hospital located in the instant fourth-rise building are access mainly by the entrance installed in the stairs or parking lot, rather than the above slope, the above slope way does not constitute "exclusive passage" under Article 20 (5) 4 of the Pharmaceutical Affairs Act.

4) In light of the fact that the establishment of a pharmacy in the instant single-story building and other pharmacies located near the instant multi-story building are located in the sole entrance route leading to a medical institution, or that such entrance is used as such, but the establishment registration of a pharmacy is permitted, the instant disposition that held that the establishment of a pharmacy in the instant multi-story building goes against Article 20(5)2, 3, and 4 of the Pharmaceutical Affairs Act is in violation of the principle of equality, and is in violation of the discretionary power

(b) The current status of the use of the existing second floor buildings, the instant fourth floor buildings, the cross-story buildings, and their sites;

Each of the above evidence, Gap evidence, Eul evidence Nos. 9, 10, 14-17, 29, 44, Eul evidence Nos. 6-9, Eul evidence and images, testimony by the first instance court witness Q, and the result of the first instance court's on-site inspection, according to the overall purport of the arguments, the use of the existing second floor building, the fourth floor building, the single floor building, and its site are as follows.

1) D and E land are adjoining to C land, such as the cadastral map (Evidence A No. 4) indication, and D and E land was divided into I land on April 16, 1964, and C was divided into R land on July 30, 1971.

2) The D land was transferred to B on November 26, 1990, and the ownership was transferred to H on November 9, 2010 (C land was transferred to B on April 3, 1991; E land was transferred to H on October 13, 2010); D land was not used as the site for the building of the above second floor, but as it was used as the parking lot for the users of the existing second floor hospital and the neighboring residents, it was used as the waiting place for the residents using the adjacent bus stops.

3) Following the extension and new construction of the instant 4th floor building, the 4th floor building is marked as '1 unit and '2 unit of the instant 4th floor building', and the D, E, and C land is registered as the site (However, in the copy of the register, each of the instant 4th floor building is registered as '1 unit and '2 unit of the instant 4th floor building' and '2 unit of the instant 4th floor building', respectively, with each of the above land as site as site. However, in fact, the instant 4th floor building is constructed as part of E and C, and the instant 4th floor building is constructed as part of D and C.

4) Among the fourth floor of this case, elevators and stairs are installed in the first floor (14.25 meters), and four hospitals are located in the second floor and the third floor, such as 'Nental', 'M internal department', 'O anesthesia and pain medicine clinic', 'P acid and medicine clinic', and the fourth floor is currently in the retail store or present.

5) As seen earlier, all the buildings adjacent to the fourth floor building of this case are abutting on the roadside, while the buildings of this case were constructed on the front side of the main entrance door of the fourth floor of this case as about about 19 meters from the road surface, and the buildings of this case were constructed on the left side of this case with a distance of about 3 meters from the building of this case and the main entrance door of the fourth floor of this case. The lower part of this case was installed on the side of the road, the front door of the fourth floor of this case was installed on the side of the road, and between the building of this case and the single floor of this case. However, the lower part of this case was located on the slope of about 5 meters installed on the main entrance door of the fourth floor of this case as follows (No. 11).

A person shall be appointed.

C. Whether the instant single-story building constitutes Article 20(5)2 and 3 of the Pharmaceutical Affairs Act

1) Relevant legal principles

Article 20 of the Pharmaceutical Affairs Act provides that a person who intends to establish a pharmacy shall register the establishment of the pharmacy to the head of the competent Si/Gun/Gu, as prescribed by Ordinance of the Ministry of Health and Welfare. Article 20 (5) of the same Act provides that "where a pharmacy is to be established in a place which is within the facilities or premises of a medical institution (Article 20 (2))" or "where a pharmacy is established by dividing, altering or repairing part of the facilities or site of a medical institution (Article 2

In determining whether a pharmacy is "the facility or premises of a medical institution" prohibited under Article 20 (5) 2 and 3 of the Pharmaceutical Affairs Act or "the facility or premises of a medical institution divided, altered, or repaired", the legislative intent of the above provision of the Act should be taken into consideration in addition to the literal meaning of the provision in order to impose an obligation to provide out-of-the-counter drugs for outpatients of a medical institution in accordance with the principles of pharmaceutical business, in order to ensure that a pharmacy is located in an independent place spatial and functionally independent from a medical institution (see, e.g., Supreme Court Decisions 2003Du1204, Jul. 22, 2004; 2014Du4311, Jul. 22, 2016).

In light of the fact that the primary purpose of pharmaceutical medicine business is to prevent a pharmacy from being dependent on a medical institution or a pharmacy from being linked to a medical institution by sufficiently and functionally separating a pharmacy from a medical institution, and that it is not for a medical institution to independently establish the building itself, a place where a pharmacy is intended to establish shall be determined by whether a pharmacy is located in the facility of a medical institution (Article 20 (5) 2 of the Pharmaceutical Affairs Act) or in the facility or premises of a medical institution (Article 20 (5) 3 of the Pharmaceutical Affairs Act) or in a place where part of the facility or site of a medical institution is partitioned, altered or repaired (Article 20 (5) 3 of the same Act) based on specific individual medical institution.

2) Determination

Considering the above facts and evidence, it is difficult to readily conclude that the building of the instant single-story, which the Plaintiff seeks to establish a pharmacy, constitutes “the facility or premises of a medical institution” prohibited by the Pharmaceutical Affairs Act, and there is also insufficient evidence to view that the establishment of the Plaintiff’s pharmacy constitutes “the establishment of a pharmacy by dividing, altering or repairing part of the facility or site of a medical institution.” Therefore, it is unlawful for the Defendant to take the instant disposition under Article 20(5)2 and 3 of the Pharmaceutical Affairs Act as the grounds for the instant disposition.

① The instant fourth floor building is only one building that has several medical institutions, and cannot be viewed as a single medical institution. However, the Defendant’s disposal ground alone does not specify whether a pharmacy, which the Plaintiff intended to establish, is located in the “facility or premises of a medical institution” or “facility or premises” or “place of subdivision, alteration or repair” among the multiple medical institutions located in the instant fourth floor.

② It is also difficult to find special circumstances to deem that the purpose of pharmaceutical medicine business is damaged as the place where the Plaintiff intends to establish a pharmacy is not sufficiently and functionally independent from all of the above medical institutions, on the grounds that multiple medical institutions located in the fourth floor of the instant case.

③ Rather, as seen earlier, D’s land, which is the site for the instant single-story building, was divided into the I’s land on April 16, 1964, and is not divided from the previous 2nd floor building and the land or E’s land, which is the site for the instant 4th floor building. Although the owner of the instant 4th floor and the instant 4th floor are the same as H, the instant 4th floor building and the same fence is located within the same fence, such as the indication of the attached drawing 2, the instant 4th floor building was built spatially separated from the instant 4th floor building, and the owner may change each other by organizing the copy of the register separately. In view of the fact that the instant 4th floor building is located within the “site or premises of the instant 4th floor building”, or the “place where part of the facility or site is divided, altered or repaired.”

D. Whether the instant single-story building falls under Article 20 (5) 4 of the Pharmaceutical Affairs Act

1) As seen earlier, the Defendant issued the instant disposition on the ground that there was an exclusive passage under Article 20(5)4 of the Pharmaceutical Affairs Act between the instant single-rise building and the 4th floor building on the ground that there was an exclusive passage under Article 20(5)4 of the same Act. According to the above grounds for disposition, it is reasonable to interpret that the said exclusive passage is not limited to the instant slope, and that the entire space between the instant single-rise building and the 4th floor building (hereinafter referred to as the “instant space”) is regarded as an exclusive passage. Therefore, we examine whether the entire space including the said slope asserted by the Plaintiff constitutes an exclusive passage.

2) Article 20(5)4 of the Pharmaceutical Affairs Act provides that the establishment of a pharmacy shall not be registered if a pharmacy is installed or installed in the exclusive way between a medical institution and a pharmacy. The legislative intent of restricting the establishment of a pharmacy is to impose an obligation to prepare out-of-the-counter drugs for outpatients of medical institutions and prevent collusion between medical institutions and a pharmacy in order to maintain the early settlement and effectiveness of the pharmaceutical distribution business system established for the public health. However, the above provision restricting establishment of a pharmacy brings about restricting freedom of business guaranteed by the Constitution and the exercise of property rights (see Supreme Court Decision 2009Du4265, Jun. 11, 2009). However, it is not permissible to expand and interpret the above restriction on restriction beyond the reasonable meaning of the language and text in that it would result in restricting the establishment of a pharmacy and the freedom of business guaranteed by the Constitution and the exercise of property rights (see Supreme Court Decision 2009Du4265, Jun. 11, 2009).

3) On the other hand, since the space of this case is open without being separated from the outside and is open to the outside, it is possible to enter the 4th floor through the space of this case to move to the road, and unlike this, it is possible to move to the 5th floor only through the road. In addition, the 4th floor of this case is constructed with a distance of about 3 meters within the same fence, and the latter part of the 4th floor building of this case is installed in a narrow channel between the building of this case and the 4th floor of this case and the 4th floor of this case, and the 4th floor of this case is located in the 4th floor of this case where the 4th floor of this case is located in the 4th floor of this case, not the building of this case and the 4th floor of this case where the 4th floor of this case can be seen to be in violation of the Pharmaceutical Affairs Act, since the defendant's entrance or the 4th floor of this case can be seen to be installed as the 4th floor of this case.

E. Sub-committee

Therefore, the instant disposition is not recognized as the grounds for the disposition. Therefore, the Plaintiff’s assertion of deviation and abuse of discretion should be revoked in a more unlawful manner without examining the Plaintiff’s assertion.

4. Conclusion

Thus, the plaintiff's claim of this case shall be quoted on the ground of its reasoning, and since the judgment of the first instance is unfair on the ground of its conclusion, it is so revoked, and it is so decided as per Disposition by the assent of all participating Justices.