[1] The meaning of "loan of a license" prohibited under Article 5 (3) of the Pharmaceutical Affairs Act

[2] Whether a qualified pharmacist’s license constitutes a lending of a pharmacist’s license in a case where a pharmacy is established in the name of a borrower and the borrower is entrusted to the borrower (affirmative)

[1] In full view of the legislative purport of the Pharmaceutical Affairs Act and the provisions on pharmaceutical license, the term "loan of a license" prohibited under Article 5 (3) of the Pharmaceutical Affairs Act means the lending of a license, even though the other person knows that he/she is a pharmacist who is the title holder of the license, while carrying out the duties of a pharmacist as if he/she is a pharmacist.

[2] If the borrower is not only qualified but also qualified pharmacist, and the borrower is also a pharmacy established under the name of the borrower after the loan, such as a pharmacy established under the name of the borrower, and the borrower was to operate the pharmacy without directly performing his/her duties as a pharmacist, then the lending constitutes lending of the pharmacist's license.

[1] Articles 1, 3, 5(3), and 74(1)1 of the Pharmaceutical Affairs Act / [2] Articles 1, 3, 5(3), and 74(1)1 of the Pharmaceutical Affairs Act

[1] Supreme Court Decision 95Do123 delivered on March 24, 1995, Supreme Court Decision 98Do2119 delivered on October 27, 1998 (Gong1998Ha, 2812)

Defendant

Prosecutor

Incheon District Court Decision 2002No2319 delivered on November 21, 2002

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

In full view of the legislative purport of the Pharmaceutical Affairs Act and the contents of the provision on a pharmacist’s license, the term “loan of a license” prohibited under Article 5(3) of the Pharmaceutical Affairs Act means that another person knowingly lends a license to the borrower while carrying out the duties of a pharmacist as if the borrower is a pharmacist who is the nominal owner of the license using the license (see Supreme Court Decisions 95Do123, Mar. 24, 1995; 98Do2119, Oct. 27, 1998). Accordingly, even in cases where the borrower is not only an unqualified but also an unqualified pharmacist, if the borrower is a pharmacy established under the name of the borrower, etc. after the loan, without carrying out his/her duties as a pharmacist, and when the borrower carries out his/her duties as a pharmacist, he/she is deemed to fall under the lending of a pharmacist’s license.

The court below held that, when Co-Defendant 1 was a pharmacist who originally obtained a pharmacist's license and was in a situation in which it is difficult to operate a pharmacy in his own name due to a large amount of debt, Co-Defendant 1's act cannot be deemed as a lending of a pharmacist's license under Article 5 (3) of the Pharmaceutical Affairs Act solely on the ground that Co-Defendant 1 borrowed a pharmacist's license from the defendant and established a pharmacy under the name of the defendant, and that Co-Defendant 1 was in exclusive charge of preparing and selling medicines, and the defendant did not participate in it at all. However, the court below held that the defendant's act cannot be deemed as a lending of a pharmacist'

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 by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)