[1] Meaning of consent as stipulated in Articles 23(1) and 23-2(1) of the former Pharmaceutical Affairs Act, and whether the comprehensive consent by drug constitutes such agreement (negative)

[2] In a case where a pharmacist provided medicines on the basis of a comprehensive prior consent given by each drug without individual and specific prior consent given by each drug for each prescription and received insurance benefit costs, whether it constitutes a ground for collecting unjust enrichment under Article 52(1) of the National Health Insurance Act (affirmative)

[1] Articles 23(1) (see current Article 26(1) and 23-2(1) (see current Article 27(1)) of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of Apr. 11, 2007) / [2] Article 52(1) of the National Health Insurance Act

Plaintiff (Attorney Lee Jae-tae, Counsel for the plaintiff-appellant)

National Health Insurance Corporation (Attorney Ansan-young, Counsel for defendant-appellee)

Seoul High Court Decision 2005Nu2355 delivered on September 28, 2005

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

Article 23(1) of the former Pharmaceutical Affairs Act (amended by Act No. 6511, Aug. 14, 2001; hereinafter “Pharmaceutical Affairs Act”) provides that “A pharmacist or herb pharmacist shall not prepare medicines by modifying or revising prescriptions without the consent of a doctor, dentist, oriental medicine doctor, or veterinarian who has issued the relevant prescription.” Article 23-2(1) of the Pharmaceutical Affairs Act provides that “a pharmacist shall not prepare alternative medicines for each other without the consent of a doctor or dentist who has issued the relevant prescription.” Thus, where a doctor or dentist prescribed the drug on the list of common prescription drugs, he/she shall not prepare alternative medicines without the consent of the doctor or dentist who has issued the relevant prescription.” In full view of the fact that a doctor or herb pharmacist takes part in the role of treating patients by checking and cooperating with each other on the contents of prescription and preparation, preventing any unnecessary or erroneous medication, disclosing the prescription, the purpose and purport of the pharmaceutical business system to achieve this purpose, the Pharmaceutical Affairs Act’s relevant regulations, concerns about infringement of public health, and possibility of accidents, etc.

The lower court, citing the reasoning of the judgment of the first instance, acknowledged the facts as indicated in its reasoning, and determined that, even if it is impossible to confirm whether the Plaintiff obtained the prior consent of the Nonparty, who is a doctor and a pro-friendly Nonparty that issued a daily prescription at each time of the alteration and replacement of this case, the Nonparty comprehensively consented to each drug of this case, in light of the relationship between the Plaintiff and the Nonparty, etc., and unless there are special opinions, such as the Nonparty’s preparation of alternative medicine only with the drug indicated in the prescription, etc., the Plaintiff may prepare alternative medicine with the consent of the alteration and replacement of this case as above.

However, according to the above legal principles, it cannot be deemed that the Plaintiff obtained a comprehensive prior consent from the Nonparty with respect to the pharmaceutical products subject to the amendment or replacement of the instant pharmaceutical products, as seen above, and obtained a legitimate consent as stipulated in Articles 23(1) and 23-2(1) of the Pharmaceutical Affairs Act.

Nevertheless, the court below determined otherwise to the effect that the Plaintiff’s modification or substitute preparation of this case is permitted as a legitimate consent. The judgment of the court below is erroneous in the misunderstanding of legal principles as to the consent under Articles 23(1) and 23-2(1) of the Pharmaceutical Affairs Act, and such misunderstanding of legal principles has influenced the judgment. The ground of appeal pointing this out has merit.

2. As to the third ground for appeal

Article 52(1) of the former National Health Insurance Act (amended by Act No. 6799 of Dec. 18, 2002; hereinafter “National Health Insurance Act”) provides that “The Corporation shall collect, in whole or in part, the amount equivalent to benefits or expenses for medical benefits from a person who has received insurance benefits or a medical care institution that has received insurance benefit costs by deceit or other unlawful means.” Under Article 39(1)2 of the National Health Insurance Act, the payment of a medicine as a medical care benefit under Article 39(1)2 of the same Act is naturally premised on the fact that it will be performed in accordance with the pertinent provisions, such as the Pharmaceutical Affairs Act, and where it is prohibited by the Pharmaceutical Affairs Act without the consent of the doctor who has issued the prescription, and if it is violated, the provision of a medicine modified or replaced without the consent of the doctor would be contrary to the main text of the current medicine distribution business system. In light of the fact that the provision of a medicine modified or prepared without the consent of the doctor would be against the legislative intent of the current National Health Insurance Act.

Nevertheless, the court below held that the disposition of this case was unlawful on the ground that the plaintiff's act does not constitute a ground for collecting unjust enrichment as stipulated in the above provision. Thus, the court below erred by misapprehending the legal principles as to "the case of receiving insurance benefit costs by deceit or other wrongful means" as stipulated in Article 52 (1) of the National Health Insurance Act, and it is obvious that such illegality affected the judgment. The ground for appeal pointing this out has merit.

3. Conclusion

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 Shin Hyun-chul (Presiding Justice)