Plaintiff (Attorney Park Jong-il, Counsel for the plaintiff-appellant)

The head of Yeonsu-gu Incheon Metropolitan City Public Health Center

December 21, 2006

Incheon District Court Decision 2005Guhap4216 Decided April 6, 2006

1. Revocation of a judgment of the first instance;

2. The defendant's disposition of imposing the penalty surcharge of KRW 8,550,000 against the plaintiff on September 30, 2005 shall be revoked.

3. The costs of the lawsuit shall be borne by the Defendant in both the first and second instances.

The same shall apply to the order.

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be recognized by considering the whole purport of the pleadings in each entry in Gap evidence 1, Eul evidence 1-1, and Eul evidence 2:

A. The Plaintiff is a pharmacist who establishes a “(title omitted) pharmacy” in Yeonsu-gu Incheon Metropolitan City 2 Dong-dong (number omitted).

B. On August 5, 2005, the “Joint Pharmacy Monitoring Group” comprised of the Ministry of Health and Welfare, the Korea Food and Drug Administration, the Health and Welfare Review and Assessment Service, and employees belonging to Incheon Metropolitan City discovered that the package of the “Mag-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-mor-

C. On August 16, 2005, the Defendant notified the Plaintiff of the disposition of 15 days of business suspension pursuant to Article 69(1)3 and (2) of the Pharmaceutical Affairs Act, and Article 89 of the Enforcement Rule of the Pharmaceutical Affairs Act regarding the above violation. On September 30, 2005, the Defendant issued a disposition of 8,550,000 won of the penalty surcharge in lieu of the business suspension period pursuant to Article 71-3(1) and (2) of the Pharmaceutical Affairs Act, and Article 29 of the Enforcement Decree of the Pharmaceutical Affairs Act (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff opened the "Mag" package in 200 units and sold them by the piece. However, in the case where the inventory of the 1,000 unit packing used in preparing and selling them by doctor's prescription does not remain or is urgent, the plaintiff opened the "Mag" package for general sale and used it for the preparation and sale of the compound, and the plaintiff prepared and kept the "Mag" package "as of August 5, 2005" package "as of August 5, 2005, it is nothing more than the fact that the plaintiff has kept the remaining "Mag" package as opened and kept, and even without opening and selling the drugs, the disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) We examine whether to open and sell “Maglass”.

The plaintiff 6 evidence 8, Gap evidence 9, Eul evidence 12-2, Eul evidence 1-2, Eul evidence 6-2, Eul evidence 1-7, Eul evidence 10-1, Eul evidence 10-2, and Eul evidence 11-2, and Eul evidence 10-1 and 10-2, and the testimony of non-party 1's witness 10-2 are 80 m20 m2 and 10 m2's m2's m2's m2's m2's m2's m3's m2's m2's m3's m2's m2's m2's m3's m2's m2's m2's m2's m2's m2's m2's m2's m2's m2's m2's m2's 'm2''s 'm2's 'm2'm 'm.

In light of the following facts as revealed by the above facts: ① the Plaintiff’s statement prepared by the surveillance team and signed it in order to read it, and opened and sold part of the items indicated in the confirmation document that it was later submitted materials justifying the opening of the “satise”, it is difficult to view that the Plaintiff signed the above confirmation document to acknowledge that the Plaintiff opened and stored the “satise” only; ② the number of the 1,000 unit “satise” and the volume of the satise-satise-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-satis-sat-satis-sat-satis-sat-sat-satis-sat-sat-sat-sat.

Therefore, the plaintiff's assertion on this point is without merit.

(2) We examine ex officio whether the instant disposition deviates from or abused the discretionary power.

Article 69 (1) 3 and (2) of the former Pharmaceutical Affairs Act, Article 89 [Attachment Table 6] of the Enforcement Rule of the Pharmaceutical Affairs Act, the defendant notified the plaintiff of the disposition of 15 days of business suspension in accordance with the "Criteria for Administrative Disposition", but on September 30, 2005, Article 71-3 of the Pharmaceutical Affairs Act, and Article 29 [Attachment Table 1-2] of the Enforcement Decree of the Pharmaceutical Affairs Act, in lieu of the 15 days of business suspension pursuant to the "Standards for Calculation of Penalty Surcharge," the defendant imposed a penalty surcharge of 8,550,000 won (=15 days x 570,00 won) in lieu of the 15 days of business suspension pursuant to the "Standards for Calculation of Penalty Surcharge." The "Standards for Administrative Disposition" under Article 89 (1) of the Enforcement Rule of the above Pharmaceutical Affairs Act is merely an internal guidelines for processing of administrative agencies with regard to the violation of the Pharmaceutical Affairs Act, and thus, it has no effect to externally bind citizens or courts.

According to the facts and arguments seen earlier, since the normative purpose of Article 39 of the Pharmaceutical Affairs Act is to prevent the misuse or abuse of drugs that may arise from the purchase of drugs without an explanation as to efficacy, side effect, etc. If the sale of drugs is permitted, it is difficult to deem that the violation of the prohibition of sale directly causes misuse or abuse of drugs to the extent that it may cause harm to national health. (2) The "Magmb" is an over-the-counter drug used for hepatitis and treatment; (3) The unit price of the above "Magb" is 18 won in the case of packages of 1,00 won, 30 won in the case of packages of 200 units, 100 units in the case of packages of 1,00 units, 200 units in the case of 20 units in the same manner as the above, and 40 units in the case of 20 units in the case of the above violation of the Pharmaceutical Affairs Act; and (4) there is no evidence to deem that the plaintiff's remaining 200 units in the case of 20000 units in the sale.

(3) Therefore, the instant disposition imposing a penalty surcharge of KRW 8,550,00 on the Plaintiff shall be revoked in an unlawful manner, on the grounds that the Plaintiff opened and sold “Magmbs”, which is a drug prohibited from opening in violation of Article 39 of the Pharmaceutical Affairs Act (hereinafter “Magbs”), and thus, the instant disposition should be revoked (the Plaintiff filed an application for an adjudication on the unconstitutionality of the Pharmaceutical Affairs Act with respect to Article 39 and Article 69(1)3 of the Pharmaceutical Affairs Act after the date on which the instant argument was concluded, but as long as the instant disposition imposing the penalty surcharge was revoked by recognizing that there was an error of deviation or abuse of discretion in the disposition imposing the penalty surcharge in the instant case, it shall not be separately determined as to the unconstitutionality of the said legal provision in the instant case,

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition with the plaintiff's appeal acceptance.

Judges Kim Tae-dae (Presiding Judge) Park Jae-dae (Presiding Judge)