[1] The purport of Article 20 (5) 3 of the Pharmaceutical Affairs Act stipulating that the phrase “cases where a pharmacy is established by dividing a part of the facility or site of a medical institution” shall not be registered for the establishment of a pharmacy

[2] In a case where the applicant for registration of the establishment of a pharmacy refuses to apply for registration of the establishment of a pharmacy on the ground that part of the facilities of a medical institution was divided or changed, the case holding that the application does not constitute grounds for restricting the establishment of a pharmacy under Article 20 (5)

[1] Article 20(5)3 of the Pharmaceutical Affairs Act provides that "a case where part of a medical institution's facility or site is divided and opened a pharmacy." The legislative purport of the Act is to prevent collusion between a medical institution and a pharmacy in accordance with the implementation of a pharmaceutical distribution business by preventing the establishment of a pharmacy in a case where there is a certain location between a medical institution and a pharmacy, taking into account that close relation between a medical institution and a pharmacy is highly likely to cause collusion between a medical institution and a pharmacy, while general administrative supervision is very difficult to detect specific collusion between a medical institution and a pharmacy.

[2] In a case where a person refuses to apply for registration of the establishment of a pharmacy on the ground that the place where the person applied for registration of the establishment of a pharmacy constitutes a place which divided or modified part of the facilities of a medical institution, the case holding that such application does not constitute a ground for restriction on the establishment of a pharmacy under Article 20 (5) 3 of the Pharmaceutical Affairs Act, in light of the following: (a) where the person applied for registration of the establishment of a pharmacy was used as a medical institution temporarily for about seven years since the first place was used as a medical institution for about 4,5 months; and (b) the building was modified in a structure and structure independently from

[1] Article 20 (5) 3 of the Pharmaceutical Affairs Act / [2] Article 20 (5) 3 of the Pharmaceutical Affairs Act

[1] Constitutional Court Order 2001Hun-Ma700, 2003Hun-Ba11 decided Oct. 30, 2003 (Hun-Gong86, 1017)

Plaintiff

Ulsan-gu Seoul Metropolitan City Head of the Ulsan-gun Public Health Center (Law Firm International Law Firm, Attorneys Ha Man-young et al., Counsel for the defendant-appellant)

Busan High Court Decision 2008Nu4640 decided January 9, 2009

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

Article 20(5)3 of the Pharmaceutical Affairs Act provides that “Where part of a pharmacy is established by dividing a pharmacy” as one of the cases where the establishment of a pharmacy is not registered. The legislative purport of the provision lies in the cases where a pharmacy is established by taking into account that close relevance between a medical institution and a pharmacy exists between a medical institution and a pharmacy, and that it is very difficult to detect specific collaborative acts between a medical institution and a pharmacy through general administrative supervision, thereby preventing the act of collusion between a pharmacy and a pharmacy from being established in a specific place. In light of the fact that the establishment of a pharmacy is difficult, the provision of this case and the provision of Article 20(5) of the Pharmaceutical Affairs Act, which limits the establishment of a pharmacy, can be reasonably interpreted as “the establishment of a pharmacy or part of a pharmacy for the purpose of establishment of the previous medical institution” in light of the fact that the establishment of a pharmacy and a part of a pharmacy can not be seen as falling under the grounds for restriction on the freedom of business and the exercise of property rights guaranteed by the Constitution, and thus, it can be reasonably construed as constituting “the establishment of the previous medical institution.”

In full view of the evidence adopted, the lower court: (a) purchased the part on the 1st floor of the building owned by Nonparty 1 and the part on the 21.28m2 on the 2nd floor; (b) on March 14, 2008, the Defendant issued the instant disposition rejecting the Plaintiff’s application on the ground that the part on (b) 17.82m2 out of the above application place constituted a divided and modified part of the former 0m2’s facilities; (b) the building was newly constructed on April 21, 200 by Nonparty 2 on the 2nd floor of the above 00m2 building, which was located on the 2nd floor; and (c) the part on the 2nd floor located on the 2nd floor, which was located on the 2nd floor of the above 0th floor; and (d) the part on the 2nd floor, which was located on June 5, 2000, which was located on the 2nd floor of the above 2nd floor.

Based on the above facts, the lower court determined that the Defendant’s disposition was lawful on the ground that the establishment of a pharmacy in the instant application site constitutes grounds for restriction under the instant provision, in full view of the following circumstances: (a) the above (b) part was divided into a part of the original KRW 00, and the pharmacy was established; (b) the establishment of a pharmacy was limited under the instant provision; and (c) Nonparty 3 continues to operate a Council member with the same trade name in the part other than the instant application site on the first floor of the building; (d) the place where the instant application was filed and the entrance of KRW 00,00 adjoining to the building; and (e) the nearby pharmacy fell short of 15 meters from ○○ Council members; and (e) the lessor of the place where the instant application was filed and the lessor of ○○○○ Council members

However, in principle, the restriction on establishment registration of pharmacies under the provision of this case shall apply to cases where a pharmacy is established by dividing a part of the facility or site of a medical institution as a matter of principle. However, in order to ensure the rational effectiveness of regulation taking into account the legislative purpose, it shall be interpreted as exceptionally applicable to cases where the establishment of a pharmacy in the division site is actually the same as cases where the establishment of a pharmacy in the division site directly divides a part of the facility or site of a medical institution in light of time and spatial closeness between the medical institution and the establishment of the pharmacy. As recognized by the facts duly established by the court below and the record, the part (B) of the application site is excluded from a temporary facility of a medical institution for about 4,5 months at the time of the first new construction. Since the site of this case was used for about 7 years thereafter, the complete entrance of this case is separated from 00 members of the same floor and the entrance of 00 billion won at the time of the extension of the building, and it is difficult to see that it constitutes an independent construction of the facility of this case as well-known distance from the building.

Nevertheless, the court below erred by misapprehending the legal principles as to the provision of this case and thereby affecting the conclusion of the judgment, on the ground that the application for registration of the establishment of a pharmacy in the place of the application of this case constitutes grounds for restriction under the provision of this case.

The ground of appeal containing the purport of pointing this out is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)