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The defendant's appeal is dismissed.
Reasons
1. The judgment of the court below which found all of the facts charged in the instant case guilty is erroneous by misapprehending the facts or by misapprehending the legal principles as delineated below.
The defendant, in violation of the Pharmaceutical Affairs Act, was found to have sold medicines necessary for the treatment of pet dogs and the prevention of diseases according to diagnosis of individual animals and their prescription, and it was within the scope of preparation of medicines as a veterinarian, but the court below found the defendant guilty of this part of the charges by deeming it as manufacturing of medicines.
B. Violation of the Act on Fair Labeling and Advertising was committed by the Defendant with medical devices necessary for cancer treatment and H, and multiple cancer treatment were provided at any time to the F Animal Hospital operated by the Defendant. Since it was possible for the F Animal Hospital to provide H at any time, the Defendant did not indicate or advertise differently from the fact, or display or advertise by excessively unrefusing the fact.
2. Determination
A. As to the violation of the Pharmaceutical Affairs Act, the term “manufacture of a drug” under Article 31(1) of the former Pharmaceutical Affairs Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Pharmaceutical Affairs Act”) refers to an act of producing a drug according to a certain course of work to meet the general demand. It includes not only modifying or refining raw materials of a drug by chemical methods but also processing that does not cause chemical change by combining a small quantity of the drug and a small amount of the drug. Determination as to whether it constitutes an act of manufacturing a drug should be made by comprehensively taking into account all the circumstances, such as the manufacturing facility in question, manufacturing method, the external appearance and sex of the product, the method of use of the product, the explanation and publicity contents at the time of sale, and the possibility of awareness of the general public.
(see, e.g., Supreme Court Decision 2003Do2432, Jul. 22, 2003). Meanwhile, the former is the same.