Defendant

The On-the-job decoration and the highest leather trial;

Attorney Lee Jin-jin

Defendant shall be punished by imprisonment with prison labor for a year and six months and by a fine of KRW 586 million.

When the defendant does not pay the above fine, the defendant shall be confined in the old house for the period of one million won converted into one day.

except that the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

The provisional payment of the amount equivalent to the above fine shall be ordered.

Punishment of the crime

The Defendant conspiredd to manufacture and sell the so-called “Damba-mar medicine” established and operated in the name of the Defendant in Suwon-si ( Address omitted) and the sugar room managed by Nonindicted Party 1 in Gwangju ( Address 2 omitted).

From March 28, 2016 to June 20, 2017, the Defendant prepared a counseling room on the above LIG building; Nonindicted 1 recruited counselors, including Nonindicted 5, Nonindicted 11, 10, Nonindicted 8, Nonindicted 12, and Nonindicted 2, etc.; and provided education on the sale of “multi-try drugs” and customer management guidelines; and, in consultation with the customers introduced by the above counselors, the Defendant designated the stage of “multi-try drugs” in the manner of sale; Nonindicted 1’s leakage or Nonindicted 6, and wife Nonindicted 7 in the above bath room; the Defendant divided Nonindicted 5’s products into the manufacturing industry and the pertinent drug’s total distribution rate; the manufacturing industry and the pertinent drug’s total distribution rate; the product’s total distribution rate; the manufacturing industry and the pertinent drug’s total distribution rate; the product’s production industry and the pertinent drug’s total distribution rate; the product’s total distribution rate; the product’s total distribution rate; the product’s quantity and the pertinent 8-H content.

Summary of Evidence

○ Part of the Defendant’s legal statement

○ Each part of the prosecutions and police interrogation protocol against the Defendant, Nonindicted 1, and Nonindicted 7

The police interrogation protocol on Nonindicted 6, Nonindicted 5, Nonindicted 10, Nonindicted 11, Nonindicted 9, Nonindicted 2, Nonindicted 8, and Nonindicted 13

○ No. 1567, 3880 pages of evidence records) written by an appraiser of the National Scientific Investigative Research Institute

○ Digital Evidence Analysis Report

○ Each photograph, telephone, text, facsimile, and telecommunication data

○ The main text of the “△△△” pharmacy and the mobile phone telegram dialogue;

○ List of Offenses by Counselors (Evidence No. 6074-6118 pages of Evidence)

○ Account Transactions, Settlement of Accounts, Credit Card Transactions, Credit Card Transactions, Payment of Cards, Cash Transfer Transactions, and Benefit Transactions

The CDs, including the details of account transactions, crime sights, etc., shall be recorded in

○ Copy of each passbook, copy of postal card, and account for the use of crime by nominal owner.

○ Verification of each electronic tax invoice, list of transactions, details of income return, and volume of electric power used

○ Each customer management account book, dialogue content, consultation date, inquiry response sheet, explanation, herb material list

○ Liquidation of proceeds from crimes by herb pharmacist's list of crimes

○ Herb pharmacist’s license, pharmacy establishment registration certificate, and each pharmacy manufacturing item’s report certificate.

○ Decision 2017Gohap526 decided January 25, 2019

○ Each internal investigation report and investigation report

Application of Statutes

Article 12 of the Criminal Procedure Act and Selection of Punishment

Article 3(1)2 and (2) of the Act on Special Measures for the Control of Public Health Crimes, Article 31(1) of the Pharmaceutical Affairs Act, and Article 30 of the Criminal Act.

○ Discretionary mitigation

Articles 53, 55 (1) 3, and 55 (1) 6 Note 3) of the Criminal Act (Consideration favorable to be considered in the rear)

○ Detention in Labor House;

Articles 70 and 69(2) of the Criminal Act

○ Suspension of Execution

The main text of Article 62(1) and (2) and Article 51 of the Criminal Act. Article 62(2) of the Criminal Act (Concurrent Consideration for Imprisonment with prison labor, as Considered in the rear)

○ Order of Provisional Payment

Article 334(1) and (2) of the Criminal Procedure Act

argument and judgment of the defendant and defense counsel

1. Summary of the assertion

① The Defendant only prescribed “dispens drugs” (hereinafter “the instant herb drugs”) in line with customer’s physical strength and did not manufacture them without any prescription, but only lent the name of the license of the herb pharmacist to Nonindicted 1, and did not manufacture and sell the instant herb drugs in collusion with Nonindicted 1.

In addition, the instant oriental medicine constitutes not a drug but a pharmacy medication, and thus, it is possible to manufacture and sell the instant oriental medicine only by accepting a report from the head of the competent Si/Gun/Gu without permission from the Minister of Food and Drug Safety. (4) The manufacture and sales value do not exceed KRW 10 million per year under Article 3(1)2 of the Act on Special Measures for the Control of Public Health Crimes.

2. Judgment by issue

Each of the above arguments is without merit as follows.

A. “Manufacture” of the instant herb drugs

The term "manufacture" means the act of producing medicines to meet the general demand widely, and the term "preparation" means the act of preparing medicines for the purpose of treating or preventing specific diseases of a specific person in accordance with the specific directions by mixing not less than two drugs or dividing one medicine into a certain quantity according to a specific prescription (Article 2 subparagraph 11 of the Pharmaceutical Affairs Act).

However, as the Defendant also recognized, the instant herb drugs were made for the purpose of treating and preventing a specific disease of a specific person, not for the purpose of treating and preventing it, but for an unspecified number of persons. ② If the Defendant designates one of the five stages in which materials and ingredients are different from each other through customer counseling, it was made according to the predetermined composite ratio, and ③ The above work was completely repeated against customers for more than one year, but more than 1,000 persons.

In addition, comprehensively taking account of the aforementioned evidence (Evidence No. 2245-2251, 2264-6-14, 4169, 4170, 5878, 5900, 6431 of the evidence records), (4) Nonindicted Party 1, etc., upon customer’s order, shall immediately purchase, prepare, and store large quantity of materials, such as yellow dust, yellow dust, scop, scoping, scoping, scoping, and scoping, etc., in a warehouse to produce the instant herb, and (5) store large sugars and packing tools for automatic production, ⑤ Yellow, yellow dust, scoping, scopic, red dust, scopic, scopic, scopic, scopic, scoping, scoping, 00 L, 90-100, 90-400, 00-6.

Thus, even if evidence to prove that a large volume of production had been produced prior to the customer’s order was not secured and examined through seizure and search, the instant herb is not “dispensing” for the purpose of treating and preventing a specific disease of a specific person in accordance with a specific usage method, but “manufacture” is deemed “making” through certain work to widely meet the demand of the general public with high interest in physical decrease (see Supreme Court Decision 2012Do435, Mar. 29, 2012).

B. The relationship between the manufacture, sale and accomplice of the instant herb drugs

In the medicine season established by the Defendant at the “△△△” pharmacy established in his own name, there was no trace of the most recent use at the time of search and seizure (Evidence No. 2360 of the evidence record), and there is no other evidence to prove that the Defendant manufactured the instant herb in the above herb country. Rather, in full view of the aforementioned evidence (Evidence No. 865-869, 884-88, 913-915, 1775, 2450, 2451, 2481, 2481, 2609, 3289-329-3291, 3705, 587, 6210, and 6249 of the evidence record), it is recognized that all of the instant herb was produced in the sugar room located in Gwangju (resident No. 2 omitted).

However, the Defendant consulted at least 1,00 customers with telephone in response to the proposal, and designated one of five stages of oriental medicine in this case. ② Accordingly, he was manufactured and sold, and received KRW 3,50,000 per month. Furthermore, the aforementioned evidence (Evidence No. 880, 2476, 2605, 2611, 2813, 2814, 2812, 2822, 2832, 2834, 2848, 2855, 3493, 3496, 350, 370-370-370, 625-6275, and 6529 of the instant oriental medicine was required to supply the instant oriental medicine information directly to the instant oriental medicine counselor, and the fact that the Defendant paid the instant oriental medicine information and the instant oriental medicine information’s account opened under the name of the Nonparty 5.

As such, insofar as the Defendant consulted directly with the customer who found the instant herb as it is, and accordingly, received the benefits in the process, and directly participated in the opening of a borrowed account and the payment of cash benefits for the purpose of hiding the proceeds of the crime, and directly purchased the instant herb materials and permitted the use of the above oriental medicine to directly purchase the instant herb materials, it is deemed that the Defendant did not directly manufacture the instant herb, but did not directly manufacture it, and that there was an intention to jointly process the instant oriental medicine manufacturing and selling, as well as the intent to jointly process the instant oriental medicine manufacturing and selling, as well as the functional control based on it, was found to exist (see Supreme Court en banc Decision 2017Do14322, Apr. 19, 2018, etc.).

C. Pursuant to the medicinal medicine of this case

(3) The term "herb drugs" means raw drugs, other than appliances, machinery or equipment, which are extracted from animals, plants or minerals in their original forms, and which are dried, cut, or carefully prepared in accordance with the principle of oriental medicine; 6. The term "herb drugs" means drugs manufactured by mixing drugs according to Article 41 (Manufacture of Pharmaceutical Products) (1) of the Pharmaceutical Affairs Act; 4. The term "drugs" means substances that are intended to be manufactured in a pharmacy or in a dispensary of a medical institution designated by the Minister of Health and Welfare after consultation with the Minister of Health and Welfare: Provided, That if a pharmacy founder intends to manufacture drugs in a pharmacy, or in a dispensary of a medical institution designated by the Minister of Health and Welfare, the scope of drugs that are to be manufactured in accordance with the provisions of Article 1 (4) of the Act shall be determined and reported to the head of a Si/Gun/Gu after consultation with the Minister of Health and Welfare:

Note 4)

According to each of the pharmacologicals test (Evidence No. 1567, 3880 of the Evidence Record) prepared by the appraiser of the National Institute of Scientific Investigation, it can be seen that (i) detected in the herb of this case, ① expansion of Ephininin, Schlage, Methic ethyl etheric ethylum, etc., expansion of machinery, antipathrosis, suppression of pneying, etc., ② promotion of sappropyn, urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgical urgic dynamic

Thus, the medicine of this case is a combination and manufacturing of various kinds of raw drugs in accordance with the oriental medicine principle for the purpose of exerting pharmacological effects on the human body, such as dynasium, and it is not a pharmaceutical medication designated and publicly notified by the Minister of Food and Drug Safety. Thus, the medicine of this case constitutes an oriental medicine among the medicines prescribed by the Pharmaceutical Affairs Act.

On the other hand, on April 4, 2018, the Defendant received a report on the preparation of a pharmacy on the mosium similar to the instant medicinal herbs, a small half-halfum bath, a petition, a mountain, a mountain, a mountain, and a mountain, and a mountain, and a mountain, and all the drugs were designated as a pharmacy medication and publicly notified by the Minister of Food and Drug Safety (see attached Table 1), and the medication, prescription, usage, dosage, and efficacy are different from the instant herb (Evidence No. 6182, 6419 of the Record of Evidence), and there is no circumstance to determine whether the instant herb medicines are medicine or not.

D. The value of the manufacture and sale of the medicinal herbs of this case

The police, among the account transaction in the name of the person related to the instant crime, including the Defendant and his accomplice Nonindicted 1, and the details of the credit card settlement, it is difficult to regard the instant herb proceeds as the instant herb proceeds. For example, at least one million won in cash, KRW 1 won in cash, mutual transfer of co-offenders, and uncertainty of sources, etc., were deducted. As of March 28, 2016 through June 20, 2017, the Defendant prepared a list of crimes that clearly arranged the date, time, amount, name, account number, etc. for each counselor, etc. as of March 28, 2016 through June 20, 2017, specifying that the Defendant manufactured and sold the total amount of KRW 585,959,00 in the instant herb drugs as shown in the list of crimes (Evidence Record No. 4912, 6072-6118

The Defendant’s assertion that the above specific basic data is not identical to the original, and that other herb prices, such as red ginseng, were mixed, and that the amount of the manufacture and sale of the instant medicinal medicine is more than 200 million won (in response to the counsel’s opinion submitted on March 15, 2019), is inconsistent with the Defendant’s assertion that the Defendant did not manufacture and sell any appropriate herb price in the “△△△ Pharmacy” (the fifth page of the above written opinion).

Ultimately, as long as the amount of manufacture and sale of the instant herb was specified as KRW 585,959,000 based on objective data, such as account transaction details, and there is no circumstance to suspect the credibility thereof, it shall be deemed that it was proven to have been proven to have been out of a reasonable doubt, unless there are circumstances to suspect the credibility thereof.

5) Grounds for sentencing

The Defendant: (a) manufactured, manufactured, and sold the instant herb drugs without obtaining a license for herb pharmacist; (b) by using the license for herb pharmacist granted exclusively to a limited person for the purpose of maintaining and improving the health of the people; (c) was significantly disturbing sound medical order by taking advantage of the process, method, and result, etc. of the crime; and (d) where the Defendant took the instant herb drugs and complained of side effects, such as taking the instant herb drugs (Evidence No. 2817, 3707). Nevertheless, the Defendant consistently testified with the defense that the instant herb drugs were manufactured for the sole purpose and misunderstanding of the police, and the instant case resulted from the Defendant’s illegal use and misunderstanding; (b) was intended to obtain a fair judgment without suppressing a specialized prosecutor (Evidence No. 6412-4144 of the Act). In full view of the circumstances, method, and consequence of the crime, etc., the Defendant’s act of criticism is highly likely to be criticized.

However, the profits earned by the defendant out of the sales proceeds from KRW 3.5 million per month is deemed to have been reduced to KRW 3.5 million per month, the defendant has no record of punishment in favor of him/her, and the defendant's age, family relation, etc. shall be determined by taking into account various factors of sentencing as shown in the arguments of this case, including the defendant'

(attached Form omitted)

Judges Han Jin (Presiding Judge)

Note 1) The indictment also states that “The Defendant received KRW 140,00 from the above “Damb Co., Ltd.” on the basis of one gambling place, but bears expenses for the pharmacy and the counseling room, and Nonindicted Party 1 conspired to receive the remainder of sales proceeds.” However, according to the result of the examination of evidence (Evidence No. 6520, 6521 of the evidence record), the indictment deleted to the extent that it does not hinder the Defendant’s right of defense.

Note 2) In the indictment, the Defendant stated that “the above separate herb drugs are carried in the same manner as above within the above “△△△” but deleted to the extent that it does not interfere with the Defendant’s right of defense, in accordance with the result of the examination of evidence as seen thereafter.

3) The phrase “one-half of the largest amount” should be interpreted as one-half of the amount “amount” when a fine under Article 55(1)6 of the Criminal Act is mitigated, and the lower limit along with the upper limit should also be interpreted as one-half (see Supreme Court en banc Decision 78Do246, Apr. 25, 1978).

Note 4) On November 11, 2015, the Ministry of Food and Drug Safety was partially amended and enforced under the Ministry of Food and Drug Safety Notice No. 2015-84. [Attachment 1] refers to the relevant item.

Note 5) This case is not subject to the sentencing guidelines [referring to the Sentencing Committee, the sentencing guidelines (2018), 193, and 194].