[1] The standard for determining whether a punitive administrative disposition is beyond or abused the scope of discretion

[2] The case holding that a disposition ordering the disposal or return of all parts of the imported green materials does not constitute a case where the discretionary power is abused or abused, on the ground that the part of the set measured by cutting three batteries during the imported green materials from the cutting to the 5 cm level exceeds 0.5% of the base value

[1] Whether a punitive administrative disposition deviatess from or abused the scope of discretion shall be determined by comparing the degree of infringement on public interest and the disadvantage suffered by an individual due to the disposition, by objectively examining the contents of the violation as the ground for the disposition, the degree of the violation, the necessity of public interest to be achieved by the disposition, the disadvantage to be sustained by the individual, and all relevant circumstances.

[2] The case holding that where the Administrator of the Regional Food and Drug Administration orders disposal or return disposal of all parts of the imported green materials on the ground that the part of the imported green materials cut three batteries from cut to 5 cm is in excess of 0.5% of the standard value, since the disadvantage suffered by a green importer is not larger than necessary for the improvement of national health and for the public interest in order to prevent reckless distribution of the inappropriate imported goods for high-priced medicinal herbs, the above disposal disposition does not constitute a case where the discretionary power is exceeded and abused.

[1] Article 1 of the Administrative Litigation Act / [1] Article 1 of the Administrative Litigation Act, Article 27 / [2] Article 65 (1) of the Pharmaceutical Affairs Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 90Nu1069 delivered on May 11, 1990 (Gong1990, 1281) Supreme Court Decision 98Du11779 delivered on April 7, 200 (Gong2000Sang, 1204) Supreme Court Decision 99Du1519 delivered on September 24, 2002 (Gong2002Ha, 2570) Supreme Court Decision 2005Du11982 Delivered on February 9, 2006

such Green Medicine Co., Ltd. (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Senior Food and Drug Administration

Seoul High Court Decision 2003Nu1587 delivered on March 26, 2004

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning on the premise that if an importer imports drugs that do not meet the standards for pharmaceutical products, such as partial disposal, reinspections, and post-inspection of imported products may be conducted in addition to disposal or return according to the degree of the violation, and determined that the Defendant's measure of 1% of the quantity of melting samples and non-pharmaceuticals (Public Notice No. 2001-2 of January 5, 2001) of the former Pharmaceutical Affairs Act and the former Rules on the Management of Imported Drugs (Public Notice No. 2001-28 of April 26, 2001) that the Plaintiff's measure of melting ingredients to the extent that it is difficult for the Plaintiff to measure the quantity of melting samples and the quantity of melting samples that the Plaintiff purchased from Russ to 5cm of each cut, and thus, it is inappropriate for the Plaintiff to measure the quantity exceeding 35% of the quantity of melting samples and the quantity of melting them.

However, we cannot accept the above judgment of the court below for the following reasons.

Whether a punitive administrative disposition deviates from or abused the scope of discretionary power or not shall be determined by comparing the degree of infringement of public interest and the disadvantage suffered by an individual by objectively examining the contents of the violation as the grounds for the disposition, the degree of violation, the necessity of the public interest to be achieved by the disposition, the disadvantages to be borne by the individual, and all relevant circumstances (see, e.g., Supreme Court Decisions 90Nu1069, May 11, 1990; 98Du11779, Apr. 7, 200).

However, according to the above-mentioned and relevant Acts and subordinate statutes, the Plaintiff’s act of removing and treating medicines in violation of the above-mentioned standards, such as manufacturing and disposal methods for the first time for manufacturing and importing medicines, is not only required to protect the health of the people because the Plaintiff’s act of removing and removing medicines does not appear to have any effect on treatment because of its de facto destruction or deterioration, but also that the Plaintiff’s act of removing and removing medicines in violation of the above-mentioned standards for manufacturing and importing medicines is not required to ensure that the Plaintiff would have no effect on treatment. In addition, the Plaintiff’s act of removing and removing medicines in violation of the above-mentioned standards for manufacturing and importing medicines, such as manufacturing and disposal methods for the first time for the first time for manufacturing and importing medicines. The Plaintiff’s act of removing and removing medicines in violation of the above-mentioned standards for manufacturing and processing regulations, which is deemed to have no effect on the first time for manufacturing and importing medicines. It is also necessary to distinguish the standards for manufacturing and importing medicines from the current standards for manufacturing and importing medicines from six different manufacturing methods.

Nevertheless, the court below concluded that the disposition of this case was unlawful as it deviates from or abused discretionary power. In so doing, the court below erred by misapprehending the legal principles on deviation or abuse of discretionary power, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)