Defendant 1 and two others

Long-Swelve

Attorney Park Jong-ho

Defendant 1 and 2 shall be punished by a fine of KRW 3,00,000, and Defendant 3 shall be punished by a fine of KRW 1,000,00, respectively.

In the event that the Defendants did not pay the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 50,000 per day into one day.

An order to pay an amount equivalent to each such fine shall be issued.

Defendant 1 is the intention of running the ○○○ Department on the second floor of the third floor building located in Daegu Northern-gu (hereinafter omitted) from July 2002. Defendant 3 is a pharmacist operating the △△buk-gu from July 2002 to the first floor of the same building. Defendant 2 is a pharmacist operating the △△buk-gu pharmacy from July 1, 2002. From December 1, 2005 to August 31, 2007, Defendant 2 is in charge of drug sales as the head of the drug or withstanding from the pharmaceutical wholesaler, and from September 2007, there is a director in charge of drug sales.

On November 2005, Defendant 1 accepted a request from Defendant 2 to the effect that “If he prescribed the medicine handled by △△ drugs, he will keep it at the bottom of the pharmacy. He will take personnel affairs at 20% of the pharmacy sales.”

Defendant 1’s primary drugs dealing with △△ drugs, which Defendant 1 promised to prescribe, were 6-7 items, and they were not ordinarily prepared at the general pharmacy because they were not widely used.

Defendant 1 immediately called that he will use a specific drug handled by △△△ drugs by immediately calls to the △△ Northern Pharmacy, and then indirectly informs Defendant 1 of the fact that he will prescribe and prescribe the drugs he handles in the future.

Defendant 2: (a) found Defendant 1’s North Korean pharmacy on the same day, and suggested that Defendant 3 be supplied with drugs from △△ drugs by notifying Defendant 1 of the fact that Defendant 1 promised to do so; and (b) indicating the list of drugs that Defendant 1 prescribed.

Defendant 3 relied on a prescription with a major part of the sale of the ○○ pharmacy in △△△, and thus, Defendant 3 entered into a contract with Defendant 2 to be supplied with these drugs from △△ drugs in order to keep the relationship with Defendant 1 smoothly in the future.

According to the above contract between Defendant 3 and Defendant 2, from November 2005 to November 2007, Defendant 2 supplied drugs equivalent to KRW 47,892,536 to the △△buk-do pharmacy. Accordingly, Defendant 2 paid to Defendant 1 an amount equivalent to KRW 9,578,507, which is 20% of the sale, in cash or by paying for hospital food expenses. Defendant 2 provided Defendant 1 with the amount of medicine purchase, rebates, and rebates, which are 20% of the sales. Defendant 2 provided Defendant 1 with the amount of medicine purchase, the amount of medicine purchase, rebates, and the rebates actually paid.

In fact, from July 2005 to October 2007, 90% of the number of medical prescriptions issued by Defendant 1, and 86% of the prescribed amount. The percentage of medical prescriptions made by Defendant 1 at the Seongbuk-do pharmacy was 66% of the number of medical prescriptions made and 76% of the prescribed amount.

The Defendants recognized that the drug wholesaler’s practice of offering rebates to doctors who are not pharmacists, and requesting the prescription of drugs, and that most of the prescriptions issued by ○○○ Medical Center was prepared in the vicinity of the ○○○ Medical Center.

As a result, the Defendants conspired in collusion with Defendant 1, who is the founder of the ○○○ Department, and Defendant 3, who is the founder of the △△buk-gu pharmacy, managed the pharmaceutical purchase and the pharmaceutical preparation business.

1. Defendants’ respective legal statements

1. Protocol concerning the interrogation of the Defendants by the prosecution

1. A report on investigation (Attachment to the Director of the Trade Office);

1. Ratification;

1. Article applicable to criminal facts;

Articles 94(1)2 and 24(2)5 of the former Pharmaceutical Affairs Act (amended by Act No. 8643, Oct. 17, 2007; hereinafter the same); Article 30 of the Criminal Act

1. Selection of punishment: Selection of a fine;

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Summary of defense counsel's assertion;

In addition, Defendant 1’s defense counsel asserts that the concept of “support” or “management” itself goes against the principle of clarity of the principle of no punishment without law under the Constitution and thus, Defendant 1’s act of management under Article 24(1)3 of the former Enforcement Decree of the Pharmaceutical Affairs Act (amended by Presidential Decree No. 20156, Feb. 29, 2008; hereinafter the same) and thus, Defendant 1’s act of management under Article 24(1)3 of the former Enforcement Decree of the Pharmaceutical Affairs Act is ambiguous, and thus, Defendant 1’s act of management is invalid because the concept of “support” or “management” itself goes against the principle of no punishment without law under the Constitution.

2. Determination

(a) Relevant legal provisions;

Article 24 (2) of the former Pharmaceutical Affairs Act: A pharmacy founder (including persons working for the relevant pharmacy; hereafter the same shall apply in this Article) and a medical institution founder (including persons working for the relevant medical institution) shall not engage in any of the following collusion:

(1) Any pharmacy founder wholly or partially exempting any person holding a prescription issued by a specific medical institution from paying medicine expenses.

(2) Any pharmacy founder offering money, goods, conveniences, labor, entertainment and other economic interest in return for medical prescriptions arranged by a medical institution founder in favor of him/her.

(3) A medical institution founder directing or inducing a person who has a prescription to get a preparation of drugs at a specific pharmacy (excluding the act of providing comprehensive guidance on the names, locations, etc. of pharmacies in the relevant area at the request of a patient).

(4) Any doctor or dentist repeatedly prescribing other drugs identical in composition to the drugs that are included in the list of prescription drugs provided by the branches of the Medical Association or the branches of the Dental Association to the branches of the Pharmaceutical Association pursuant to Article 25 (2) (the same shall apply to any pharmacist who repeatedly prepares the relevant drugs according to the relevant medical prescription).

(5) Any other act similar to that referred to in subparagraphs 1 through 4 and prescribed by Presidential Decree as having the potential of collusion.

"Any other act similar to that falling under subparagraphs 1 through 4 and prescribed by Presidential Decree as having the potential of collusion" in Article 24 (1) 5 of the Enforcement Decree of the same Act means any of the following acts:

(1) The act of making preparation only at a pharmacy by stating the names, etc. of drugs on a prescription with a symbol or code pursuant to a prearrangement between a pharmacy founder and a medical institution founder.

(2) The act, performed by a medical institution founder, of making a preparation only at the specific pharmacy by prescribing the drugs other than the table of prescription drugs under Article 25 of the Act.

(3) The act of supporting or managing medicine purchase business, drug preparation business, or medical care benefit cost request service under the National Health Insurance Act, etc. between a pharmacy founder and a medical institution founder.

(4) The act of a medical institution founder to transmit a prescription to prepare drugs at a specific pharmacy by facsimile, computer communications, etc. without a request made by the medical institution possessor.

(5) The act, performed by a medical institution founder, of ordering a pharmacist under his/her de facto command and supervision to establish a pharmacy, or of operating the pharmacy actually by controlling and supervising the pharmacist who has established the pharmacy.

(b) Whether it violates the principle of clarity;

The principle of no punishment without the law, which is guaranteed through Articles 12 and 13 of the Constitution, means that crimes and punishment must be determined by law. The principle of clarity derived from such principle of no punishment without the law refers to what is intended to punish law, what can be predicted by anyone who can determine the punishment, and that the elements of punishment should be clearly defined so as to enable him/her to decide his/her act. However, even though the elements of punishment should be clear, it is not necessary to define all the elements of punishment as simple descriptive concept, and even if a person uses a concept that requires complementary interpretation of judges somewhat wide range, if he/she has a sound common sense and ordinary legal sentiment, it does not conflict with the clarity of punishment required by the Constitution if he/she can know the protected legal interests of the punishment law, prohibited acts and punishment, and the kind and degree of punishment. In addition, whether a certain norm is clear or not, it means that the law gives fair notice of the meaning of the law, the meaning of interpretation and enforcement of the law can be reasonably determined by the legislative purpose or the meaning of the law, the meaning of the law, and its contents.

Article 24 (2) 5 of the former Pharmaceutical Affairs Act and Article 24 (1) 3 of the Enforcement Decree of the same Act, which are similar to acts falling under the provisions of Article 24 (2) 1 through 4 of the former Pharmaceutical Affairs Act and are likely to engage in collusion, and the meaning of "the act of supporting or managing, etc., drug purchase business and drug preparation business, etc., between a medical institution founder and a pharmacy founder" is the legislative purpose and purport of the former Pharmaceutical Affairs Act. In light of the other relevant provisions as seen above, "other acts than collusion and similar collusion as prescribed above, which are acts other than collusion and similar collusion, and which are likely to engage in collusion between a medical institution founder and a pharmacy founder in the way of assisting or controlling each other with respect to pharmaceutical purchase business, pharmaceutical preparation business, etc., and the case where a medical institution founder, as a specific example, can be determined through a sound legal appraisal and sound interpretation, and thus, it does not go against the principle of no punishment without the law.

C. Whether this case constitutes an act of management

As seen above, under Article 24 (2) 1 through 4 of the former Pharmaceutical Affairs Act, a pharmacy founder grants a specific medical prescription holder a full or partial exemption of medicine expenses to a person holding a specific medical prescription (Article 24 (2) 1 through 4 of the same Act, as a collaborative act, and under Article 24 (1) 5 of the Enforcement Decree of the same Act, any act which is likely to be collusion by similar acts as referred to in the above subparagraphs. In addition, under Article 25 of the same Act, the founder of a medical institution submits a list of drugs to the branches of the society, and the branches of the medical society, etc. shall provide the list of drugs for each medical institution, which appropriately adjusts the number of items from the list of drugs for each medical institution and the list of drugs for each medical institution adjusted within the scope of the list of prescription drugs for each medical institution and the list of prescription drugs for each medical institution. The division of the Pharmaceutical Association provides that a doctor shall notify the pharmacy of the relevant area of the list of drugs received from a medical society, etc. to ensure patient's treatment and treatment.

According to the purport of the former Pharmaceutical Affairs Act and the systematic interpretation of the relevant provisions, the facts charged based on the evidence submitted by the prosecution, namely, Defendant 1, around November 2005, agreed to provide Defendant 2 with financial benefits equivalent to 20% of the sales of △△ drugs and to provide 10% of the market price instead of explaining the purport to Defendant 3 and delivering △△ drugs, and Defendant 1, from around that time to November 2007, agreed to provide financial benefits equivalent to 10% of the market price. Defendant 3 prepared and administered △△△ drugs to Defendant 47,892,536 won, and Defendant 1 supplied Defendant 20% of the total sales to Defendant 1 by means of cash payment, 578,507 won, or hospital food payment, etc., and Defendant 2 and Defendant 3’s act of purchasing medicines against the basic purport of Article 18(1) of the Enforcement Decree of the former Pharmaceutical Affairs Act from around 2007.

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