2013Guhap2244. Revocation of a disposition not to notify the establishment of a pharmacy

A

Head of Daegu Metropolitan City, Seo-gu Public Health Center;

2014,26 February 26

March 28, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On August 8, 2013, the Defendant’s disposition of notifying the Plaintiff of the non-registration of the establishment of a pharmacy is revoked.

1. Details of the disposition;

A. On August 5, 2013, the Plaintiff, a pharmacist, filed an application for registration of the opening of a pharmacy (hereinafter referred to as “instant application”) with the Defendant, who intends to establish a pharmacy in the part (A) of the attached Form No. 66.05 square meters (hereinafter referred to as “instant store”) among the first floor of the building of the 5,214.07 square meters in total of the 1st underground floor and the 7th floor above the 5,214.07 square meters of the ground surface (hereinafter referred to as “instant building”).

B. On August 8, 2013, the Defendant rejected the instant application (hereinafter referred to as the “instant disposition”) on the ground that “the Plaintiff was a member, convenience store, and coffee store on the first floor of the instant building, but the entire 7th floor above the ground level is a medical institution (C hospital) and the place where the Plaintiff wishes to establish a pharmacy under Article 20(5)2 of the Pharmaceutical Affairs Act as a single medical institution (hereinafter referred to as “place within or within the boundary of a medical institution”). 【The grounds for recognition” did not dispute the instant case (hereinafter referred to as “grounds for recognition”), and the purport of the entire pleadings and arguments.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The store of this case is located in the south part of the 1st floor of the building of this case, and the entrance abutting on the south side road of 30 meters wide. The entrance abutting on the south side road is the only passage to the above store, and stairs and elevators for going up to the second floor of the building of this case are installed on the north side of the building of this case, and there is no passage to enter the building of this case from the inside of the building of this case. The store of this case and medical institution of this case are divided into separate spaces, and medical institution users are not likely to recognize the store of this case as a medical institution or premises, and the plaintiff who is to establish the pharmacy is an independent entity separate from the operator of the medical institution does not constitute "the facility or premises of the medical institution" as stipulated in Article 20 (5) 2 of the Pharmaceutical Affairs Act. Therefore, the disposition of this case by the defendant on the premise that the store of this case constitutes the facility or premises of the medical institution of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) The owner of the instant building is the inn (hereinafter referred to as "innex") of the company. The purpose of the building is 244.83m, such as machinery rooms, electricity rooms, and EV holes, the first floor is 5.49m, the first floor is 585.49m, the first class neighborhood living facilities (retail stores) 96.62m, the first class neighborhood living facilities (retail stores) 68.51m, the second class neighborhood living facilities (retail restaurants) 68.5m, the second floor is 743.04m, the second floor is 743.56m square meters, the third floor is 773.56m, the second floor is 773.56m, the third floor is 764.26m, and the 7th floor is 409.24m of the medical facilities (a hospital) at each medical time.

2) On December 14, 2012, D, E, F, G, and H (hereinafter referred to as “D, etc.”) leased the second or seventh floor of the instant building as KRW 400 million, KRW 50 million, KRW 600,000,000, KRW 1,11-2017.12, and 31. D, etc. on December 31, 2012, with the Defendant’s medical institution (title: A hospital, specialized department for medical treatment: internal medicine, mental health department, infant health department, immigration department, sony department, sony department, charges, home department, and household establishment department) with the total area of the leased building at KRW 4,70,00,00,000, KRW 777,789,000,00,000 (each additional tax).

3) From February 6, 2013, I, J, and K leased approximately KRW 422m of the first floor of the instant building as KRW 250 million, KRW 40 million, KRW 500 million, KRW 500,000, and KRW 500,000,000 for the rent and management expenses (each additional tax is separately imposed), and on April 15, 2013 to April 14, 2018. On April 30, 2013, I, the Defendant reported the establishment of a medical institution (title: medical clinic, internal department, internal department, and juvenile department) to the Defendant, and thereafter, the Council is in operation.

4) From around July 30, 2013, the Plaintiff is expected to establish a pharmacy after setting up a deposit amount of KRW 200 million for the instant store on the first floor of the instant building, and the period from August 1, 2013 to July 31, 2015.

5) The south side of the instant building is linked to the 6rd line road of the width of 30 meters, the 4rd line road of the northwest, and the 4rd line road of the width of 20 meters, respectively. The part adjacent to the 4rd line of the northwest is used as a parking lot. On the other hand, the signboard of C Hospital is attached at the upper part of the outer wall of the instant building and at the entrance of the central entrance and the northwest, respectively.

6) On the north-dong part of the 1st floor of the instant building, the elevator for entrance to the C Hospital and the entrance door to the second floor of the building are installed, and the remaining part has a passage to enter the instant store, the LA department, and the convenience store. The passage to the instant store is obstructed by entering the entrance door of the C Hospital and leaving the entrance.

7) On the south of the instant building, the lower part of the instant building is located on the left side of the road, both Lintro, Mintro, the instant store, and the coffee store, respectively.

【Ground of recognition】 The fact that there is no dispute, Gap’s evidence 3 through 11, Gap’s evidence 32-1 through 11, Gap’s evidence 34, Eul’s evidence 2-1, 2, Eul’s evidence 13, witness N’s partial testimony, and the purport of the whole pleadings

D. Determination

1) Article 20(5)2 of the Pharmaceutical Affairs Act provides that the establishment of a pharmacy shall not be registered if the place where a pharmacy is to be established is located within the facilities or premises of a medical institution. In determining whether a pharmacy constitutes “within the facilities or premises of a medical institution” which is prohibited from registration of establishment under the above provision, transfer of a pharmacy to a medical institution in accordance with the principle of pharmaceutical distribution business, along

In order to enforce the obligation to prepare drugs outside the hospital, the legislative intent of the above provision of the law should be taken into consideration to place a pharmacy in spatial and functional independent place from a medical institution (see, e.g., Supreme Court Decisions 2002Du1095, Dec. 12, 2003; 2003Du537, May 16, 2003).

2) In light of the above facts and the following circumstances revealed through the evidence revealed, it is reasonable to view that the store of this case constitutes "a case within the facility or premises of a medical institution" under Article 20 (5) 2 of the Pharmaceutical Affairs Act, since it cannot be deemed that the store of this case is independent of the spatial and functional relationship with C Hospital, it constitutes "a case within the facility or premises of a medical institution" under Article 20 (5) 2 of the same Act.

① The instant building is a building with a total floor area of 5,214.07 square meters, which is a total floor area of 5,214.07 square meters on the ground, and considering the circumstances such as the mechanical room, electricity room, etc. of 244.83 meters on the underground floor, most (2-7 square meters, total 4,218.7 square meters) of the instant building is operated as a C Hospital.

② In addition, C Hospital signboards are installed at the top of the left side of the outer wall of the instant building, the center entrance, and the entrance of the north-east side of the instant building, respectively, and there is sufficient external or structural awareness of the entire building as a hospital building by appearance, such as the form of outer wall.

③ Even if the entrance and exit doors of the C Hospital and the instant store are installed separately, the premises of the instant store are adjacent to one building. Thus, the visitors to the C Hospital may easily access the instant store through delivery.

④ C hospital using the 2 to 7th floor of the instant building is considerably larger than 77 rooms and 289 sickbeds. If a pharmacy occurs in the instant store, the likelihood of substantially playing a pharmacy in the premises of the instant building would have a significant impact on competition with other adjacent pharmacies.

⑤ Even if the entrance of the instant store and the entrance of the C hospital are separately installed as the Plaintiff’s assertion, and there is no passage to the C hospital at the said store, considering the legislative intent of Article 20(5)2 of the Pharmaceutical Affairs Act and the aforementioned circumstances, it is difficult to deem that the instant building can be perceived as a C hospital, and it does not constitute a case within the facilities or premises of the medical institution.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The judge, senior judge and judge;

Judges' heavy defects

Judges Kim Gun-chul

A person shall be appointed.

A person shall be appointed.