[1] The criteria for determining whether a drug or herb constitutes the concept and herb drugs under the Pharmaceutical Affairs Act

[2] In a case where a herb seller sells herb drugs, such as softs, sugars, yellow dusts, and valleys, to many and unspecified persons without a pharmacy registration, the case holding that the sold goods do not constitute medicine subject to regulation under the Pharmaceutical Affairs Act

[1] According to the provisions of Article 2 (4) and (5) of the Pharmaceutical Affairs Act, the term "drugs" means the goods listed in the Korean Pharmacopoeia, which are not non-pharmaceutical drugs, and the goods used for the diagnosis, treatment, mitigation, treatment or prevention of diseases of human beings or animals, which are not appliances, machinery or equipment, but all articles used for the purpose of exerting pharmacological effect on the structure and functions of human beings or animals, and which are not appliances, machinery or equipment. The term "herb drugs" means all collected from animals, plants or minerals and dried, cut off or dried in their original forms mainly. The issue of whether they correspond to the above medicinal drugs shall be determined by comprehensively taking into account the composition, shape (container, packing, etc.), name and purpose of use indicated, efficacy, effect, volume, volume, propaganda or explanation at the time of sale, etc., and shall be deemed to fall under the category of drugs subject to regulation under the Pharmaceutical Affairs Act if it is recognized or claimed to be used for the above purpose except for agricultural products or food.

[2] The case holding that in case where a herb seller sells herb drugs, such as colds, sugars, yellow dusts, and valleys, to many and unspecified persons without a pharmacy registration, goods sold shall not be deemed as being used for the purpose prescribed by the Pharmaceutical Affairs Act or as claimed to have medicinal effects, on the ground that they cannot be deemed as being used for the purpose prescribed by the Pharmaceutical Affairs Act

[1] Articles 2 (3), (4) and (5), 16 (2), and 76 (1) of the Pharmaceutical Affairs Act / [2] Articles 2 (3), (4) and (5), 16 (2), and 76 (1) of the Pharmaceutical Affairs Act

[1] Supreme Court Decision 95Do587 delivered on September 15, 1995 (Gong1995Ha, 3476), Supreme Court Decision 95Do1635 delivered on February 9, 1996 (Gong1996Sang, 1008), Supreme Court Decision 96Do1941 delivered on October 15, 1996 (Gong196Ha, 348), Supreme Court Decision 2005Do5711 Delivered on April 28, 2006

Defendant

Park Jong-hee

Attorney Noh Sung-jin

The defendant shall be innocent.

1. Summary of the facts charged

Defendant (name omitted) is an incorporated association (name omitted) and is engaged in the sale of herb drugs in a mutual name, without registration of a pharmacy with the authorities;

From July 7, 2004 to May 12, 2005, after being equipped with 70,000 medicinal herbss in the location (trade name omitted) of the Busan Landong-gu, Busan, in order to sell 70,000 won per 600gs of sugar, 7,000 won per 600g of sugar, and 600,000 won per 60g of September, 200, after receiving 4,000 won per 60g of September, 200 and selling 70,000 won per month’s average of 70,000 won.

2. Determination:

A. According to Article 2(3) of the Pharmaceutical Affairs Act, the term “pharmacy” means a place where a pharmacist or herb pharmacist conducts the preparation of drugs (including the preparation of a pharmacy) for the purpose of award (in the case where the founder engages in the sale of drugs at the same time, the place necessary for the sale of drugs shall be included). Thus, the facts charged in the instant case is premised on the premise that the goods handled by the Defendant constitute drugs under the above Pharmaceutical Affairs Act.

Pursuant to the provisions of Article 2 (4) and (5) of the Pharmaceutical Affairs Act, the term "pharmaceuticals" means articles listed in the Korean Pharmacopoeia, which are not non-pharmaceutical drugs, and articles used for the purpose of diagnosis, treatment, mitigation, treatment or prevention of diseases of human beings or animals, which are not appliances, machinery or equipment, but for the purpose of exerting pharmacological influence on the structure and functions of human beings or animals, and which include both appliances, machinery or equipment. The term "herb drugs" means raw drugs extracted from animals, plants, or minerals and dried, cut, or refined in their original forms. Whether they constitute drugs as above shall be determined by comprehensively considering the ingredients, shapes (containers, packaging, etc.), name and indicated purpose of use, efficacy, efficacy, volume, quantity, propaganda or explanation at the time of sale, etc., and shall be determined by the Supreme Court Decision 196Do1965 delivered on May 16, 1995 (see Supreme Court Decision 2005Do1965 delivered on May 196, 1996).

B. However, according to the statements made by the defendant, the witness 1, and the witness 2 in this court, the statement made by the witness 3 in the sixth trial records, the police interrogation protocol made by the defendant and the statement made by the defendant, the image of field photographs, etc., the defendant purchased from an incorporated association (title omitted) the articles stated in the facts charged that the above association did not sell or process them on packaging containers sealed by the association and sold them to the general consumers. The defendant calculated the above articles at a price less than the amount requested by them and sold them to the general consumers, or sold them to the general consumers by using a glifine, and then did not sell them. The defendant arbitrarily selected, mixed, processed, or sold them. The defendant did not use them as medicines when selling the above articles. The defendant did not merely indicate or indicate the efficacy, efficacy, effect, etc. of the above articles, or advertising materials for the above articles without any further indication, and thus, it cannot be seen that they constitute a sale or advertising target under the Pharmaceutical Affairs Act, taking into account the above article's name or efficacy, etc.

3. Conclusion

Thus, since there is no evidence to prove that the goods as stated in the facts charged of this case fall under the medicine prescribed by the Pharmaceutical Affairs Act, the facts charged of this case constitutes a case where there is no evidence to prove the crime, the defendant is acquitted under the latter part of

Judges Kim Chang-hoon