beta
Text
Defendants are not guilty.
Reasons
1. The summary of the facts charged is that Defendant A is a pharmacist who operates a F Pharmacy in Tong Young-si, E, and Defendant B is a wife of Defendant A.
Defendant
B on January 28, 2014, around 14:30, at the Tong Young-si, sold to a person whose name is not known at the EF pharmacy, one sheet E, an over-the-counter drugs, one sheet E, and one luminous sugar.
Defendant
A, at the same time and at the same place, B, an employee of the defendant, had the defendant commit the above-mentioned violation.
2. Article 20(1) of the Pharmaceutical Affairs Act provides that no person, other than a pharmacist or an oriental medical doctor, shall establish a pharmacy, and Article 44(1) of the same Act provides that no person, other than a pharmacy founder, may sell drugs. The purport of the above provision of the Pharmaceutical Affairs Act is to ensure that the sale of drugs is likely to affect the national health, and that the sale of drugs is inappropriate for the public health and sanitation to leave the sale of drugs to the public’s free will, and thus, to allow the sale of drugs by cancelling general prohibition only
Furthermore, if a person, other than a pharmacist, sells a drug under a pharmacist's implied or presumed instruction, it is reasonable to evaluate that a pharmacist sells a drug merely because he/she sells assistant by mechanical or physical use.
(See Supreme Court Decision 98Do1967 delivered on October 9, 1998). The above Supreme Court precedents have interpreted the conflict between the private interest of pharmacist's freedom of occupational performance and the public interest of safety and health of the general public in terms of norm-making.
Therefore, the court shall decide by case whether the pertinent case constitutes "the case where a pharmacist sells assistant by using mechanical or physical means, and thus, a pharmacist's sales of drugs substantially constitutes "the case where a pharmacist can legally be assessed as having sold drugs" as presented in the above Supreme Court precedents, and the specific criteria for judgment shall be what kind of sales of drugs.