[1] In a case where there is a justifiable reason for a medicine dealer to sell drugs at a price lower than factory price, whether the sale of drugs at an unfair method or price under Article 57 (1) 6 of the former Enforcement Decree of the Pharmaceutical Affairs Act constitutes "an act that disturbs the market order of drugs or induces consumers (negative)

[2] The case holding that there is no justifiable reason to sell the drug at a price lower than the factory price in a case where a medicine dealer sells the drug at a price much lower than the factory price as well as the purchase price

[1] Articles 38 and 69(1)3 and (3) of the Pharmaceutical Affairs Act, Article 57(1)6 of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by the Ordinance of the Ministry of Health and Welfare No. 50 of May 21, 1997), Article 89 [Attachment 6] Ⅱ. In light of the individual standards 38(h) and subparagraph 2 of Article 2, Article 6(3), Article 14(2)2, and Article 15(1), etc. of the Standards for Labeling and Management of Drugs Act, even if a distributor such as a pharmacy sells drugs at a price lower than the notified factory price under Article 6(3) of the Standards for Labeling and Management of Drugs, if justifiable grounds exist, it does not constitute a case where a distributor such as a pharmacy sells drugs at an unreasonable method or price under Article 57(1)6 of the former Enforcement Rule of the Pharmaceutical Affairs Act, thereby impairing market order or inducing consumers.

[2] The case holding that in a case where a medicine dealer purchased a drug at a price without a difference between factory price and factory price and sold a price at a price much lower than factory price, barring special circumstances, it is difficult to view that there is a justifiable reason for the seller to sell the drug at a price lower than factory price

[1] Article 38, Article 69(1)3 and (3) of the Pharmaceutical Affairs Act, Article 57(1)6 of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by the Ordinance of the Ministry of Health and Welfare No. 50 of May 21, 1997), Article 89 [Attachment 6] Ⅱ. / [2] Article 38, Article 69(1)3 and (3) of the Pharmaceutical Affairs Act, Article 57(1)6 and Article 89 [Attachment 6] of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by the Ordinance of the Ministry of Health and Welfare No. 50 of May 21, 1997)

[1] Supreme Court Decision 99Do134 delivered on April 27, 1999 (Gong1999Sang, 377) (Gong199Sang, 1115 delivered on January 26, 199)

Plaintiff (Attorney Han-soo et al., Counsel for the plaintiff-appellant)

Daegu Metropolitan City, Dong-gu Public Health Center Head (Attorney Jin-hee et al., Counsel for defendant-appellant)

Daegu High Court Decision 98Nu60 delivered on July 2, 1999

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

We examine the grounds of appeal.

1. The facts established by the court below are as follows.

A. On November 21, 1997, the Plaintiff was operating a pharmacy with the name of "○○ pharmacy" after obtaining a pharmacist's license from the Minister of Health and Welfare. At around 10:50 on November 21, 1997, the Plaintiff sold a box of KRW 1,500 manufactured by the Nonparty, who was an employee of his/her own pharmacy, through Nonparty, who was an employee of his/her own pharmacy, to Nonparty 10 diseaseed in the name of Nonparty 1,50. At the time, the Plaintiff sold the box of KRW 1,50 in accordance with the pharmaceutical price labelling and Management Standards (Public Notice No. 1995-4 of Ministry of Health and Welfare on February 3, 1995; hereinafter the same). The factory price of Park Kas-F 10 disease was KRW 2,600.

B. On December 30, 1997, the defendant sold the gambling-F of this case at a price lower than the factory price to the plaintiff on the ground that the act constitutes a case where the sale of drugs at an unfair method or price under Article 38 of the Pharmaceutical Affairs Act and Article 57 (1) 6 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Health and Welfare No. 50 of May 21, 1997; hereinafter the same shall apply) constitutes a case where the sale of drugs at an unfair method or price and thereby disturbs the market order or induces the consumer, pursuant to Article 69 (1) 3 and (3) of the same Act and Article 89 [Attachment Table 6] of the Enforcement Rule of the same Act [Attachment Table 6] No. 38(h) of the same Act and Article 89 [Attachment 6] of the Enforcement Rule of the same Act.

2. In full view of the following reasons, the lower court determined that the Plaintiff’s sale of the instant Park Ka-F at prices lower than the factory price, and thus, it cannot be deemed that the sale of drugs at unjust methods or prices does not constitute a case of disturbing the market order of pharmaceutical products or soliciting consumers, and accepted the Plaintiff’s claim seeking revocation of the instant disposition.

A. As to the Defendant’s assertion that the Plaintiff sold the Gamba-F at a price lower than the factory price as well as the purchase price, it is insufficient to recognize the Plaintiff’s assertion only by the entries in the evidence No. 11 (a certified copy of the questioning protocol) and evidence No. 6 (a list of Park Ka-F Trading). There is no other evidence to acknowledge it.

B. According to the provisions on the pharmaceutical price labelling and management standards, if a pharmaceutical manufacturer calculates a factory price and submits it to the President of the Korea Pharmaceutical Association, the president of the Korea Pharmaceutical Association shall review the appropriateness of factory price by the Pharmaceutical Management Committee comprised of relevant experts, such as representatives of relevant pharmaceutical organizations, consumer representatives, and university professors, and shall not participate in the determination and management of factory price by pharmaceutical manufacturers, the president of the Korea Pharmaceutical Association, and the Minister of Health and Welfare.

C. According to the evidence No. 10-1 to No. 7 (each newspaper engineer), since the president of the Korean Pharmaceutical Association, etc. mainly examines the appropriateness of the factory price based on the materials submitted by the manufacturer, it can be acknowledged that the type of drug occurs even if a manufacturer ships drugs at a price lower than the factory price because the factory price is calculated excessively higher than the manufacturing cost, etc. or the factors such as the decrease in the manufacturing cost, etc. that occurred after the fact are not properly reflected in the factory price.

D. According to the enforcement regulations of the Pharmaceutical Affairs Act and the relevant regulations of the pharmaceutical price labeling and management standards, sales business entities, such as pharmacies, sell at a price lower than the factory price, and on the other hand, a manufacturer’s shipping at a price lower than the factory price is not a ground for sanctions.

(e) If the factory price is not set and managed properly to maintain the manufacturing cost plus an appropriate profit at a reasonable price, then a seller and general consumers, such as pharmacies, if the lower limit of the drug sales price is restricted on the basis thereof, shall be disadvantaged by free price competition, increase in medical expenses, etc.

3. However, it is difficult to accept the fact-finding and judgment of the court below in the following respects.

A. The evidence No. 11 stated that the non-party appeared as witness on the date of the examination of the case suspending the validity of the disposition of this case, and stated that the non-party purchased and sold 2,300 won per box 10 soldiers, and that Eul evidence No. 6 (the statement of Park Kas-F Trading) purchased 3,300 won from the Daegu Branch of the non-party company on 2 October 2, 1997 and 9 of the same month immediately before the plaintiff sold the Park Kas-F, and that the non-party purchased 3,300 won from the Daegu Branch of the non-party company on 759,00 won (230 won per disease). Considering these evidence, the plaintiff can be sufficiently recognized that the plaintiff purchased Kas-F from the non-party company to 2,300 won per Kas-F, and therefore, it is clear that the plaintiff purchased Kas-F's purchase price at the price of this case.

B. In light of the provisions of Article 38, Article 69(1)3 and (3) of the Pharmaceutical Affairs Act, Article 57(1)6 of the Enforcement Rule of the same Act, Article 89 [Attachment Table 6] Ⅱ. In light of the provisions of Article 38(1)3 and Article 69(1)6 of the same Act, Article 89 of the Enforcement Rule of the same Act, Article 2 subparag. 2, Article 6(3), Article 14(2)2, and Article 15(1) of the Standards for Labeling and Management of Drugs Act, even where a seller of a pharmacy, etc. sells drugs at a price lower than the factory price notified under Article 6(3) of the Standards for Labeling and Management of Drug Prices, if any justifiable reason exists, it does not constitute a case where a seller of a pharmacy, etc. sells drugs at an unfair method or price, thereby impairing the market order or inducing a consumer (see Supreme Court Decision 98Du437, Jan. 26, 199).

In short, the judgment of the court below is in short, where the factory price was set excessively higher than the manufacturing cost, the seller is subject to sanctions on the ground that he did not participate in the determination of the factory price and sold at lower price. Based on this, if the lower limit of the selling price is restricted, there is a justifiable reason for the Plaintiff to sell at lower price than the factory price on the ground that the distributor or general consumers would suffer disadvantages. In addition, it is difficult to view that there is no justifiable reason to view that the Plaintiff’s sales price was lower than the factory price in the instant case on the ground that the factory price was set excessively higher than the manufacturing cost, without examining at all the circumstances as to whether the Plaintiff’s sales price was set excessively higher than the manufacturing cost. In addition, it is difficult to view that there is no justifiable reason to view that the Plaintiff’s sales price was lower than the factory price in the instant case on the ground that the seller was unfairly punished or the general consumers were at a disadvantage than the factory price in the instant case on the ground that the Plaintiff was at a lower price than the factory price in the instant case.

C. Nevertheless, as seen earlier, the court below held that there was a reasonable ground for the Plaintiff’s selling Park Ka-F at a price lower than the factory price. The court below erred by misapprehending the rules of evidence or failing to exhaust all deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. 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 Lee In-hee (Presiding Justice)