The meaning of "retailing price" under Article 3 (1) 2 and (2) of the Act on Special Measures for the Control of Public Health Crimes

Considering the principle of strict interpretation in accordance with the principle of no crime without the law and the fact that there may be cases where the corresponding medicines cannot be presented among the medicines to which the provisions of Article 3(1)2 and (2) of the Act on Special Measures for the Control of Public Health Crimes apply, it shall be deemed to refer to the retail price of the medicines corresponding to the medicines permitted or the products subject to alteration, and it shall not be deemed to refer to the permitted medicines or the retail price of the products subject to alteration.

Article 3(1)2 and (2) of the Act on Special Measures for the Control of Public Health Crimes, Article 26(1) of the Pharmaceutical Affairs Act

Defendant

Defendant

Attorney O Dong-dong

Busan High Court Decision 2006No345 decided Nov. 22, 2006

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

The grounds of appeal are examined.

1. Article 3(1)2 of the Act on Special Measures for the Control of Public Health Crimes (hereinafter referred to as the “Act”) provides that a person who manufactures medicines or cosmetics (hereinafter referred to as “drugs, etc.”) without permission under Article 26(1) of the Pharmaceutical Affairs Act shall be punished by imprisonment for life or for not less than three years if the value of the medicines, etc. is at least 10,00 won per annum at retail prices, and Article 3(2) provides that a fine equivalent to two to five times but not more than five times the retail value of the products sold or acquired shall be imposed concurrently, taking into account the principle of strict interpretation in accordance with the principle of no punishment without law and the fact that among the medicines, etc. subject to the above legal provisions, those who sell or acquire them for the purpose of sale, or those who knowingly sell or acquire them for the purpose of sale with the knowledge of the fact that they are similar to the permitted medicines, etc., the term “retail price” in the above provision shall not be deemed to correspond to the permitted retail price of the medicines, etc.

2. However, the court below rejected the defendant's assertion that the "retail price" under Article 3 of the Act should be calculated on the basis of the product which became the subject of the above Article, and thus, rejected the defendant's assertion that the retail price should be calculated on the basis of forged Bara and Maise's own retail price, which is ultimately, in calculating the retail price of 1,600 Mara and 4,000 Maise's Maise's Mara, which is a forged medicine, 15,000 won, which is the retail price of 16,000 won, and 16,000 won, which is the retail price of Maise's Mara, and 16,000,000 won, which is the retail price of 16,000 won, the court below erred by misapprehending the legal principles as to the remaining violation of the Trademark Act and 20 years, and by misapprehending the legal principles as to the above retail price of 30 years and 20 years, respectively.

Meanwhile, according to the records, Non-Indicted 1 sold to Non-Indicted 2 for KRW 3,500,000, and it was discovered that Non-Indicted 1 sold to Non-Indicted 2 for KRW 1,600,000 for KRW 1,720,00 for KRW 1,60. The appraisal by the Busan Customs office of the case of KRW 6,40,00 for the market price of KRW 4,000 for the City of the case of USD 1,600, and the market price of KRW 3,200,00 for Non-Indicted 1,60,000 for the total amount of KRW 9,60,00. Thus, it is sufficient to view that the retail price of the Non-Indicted 1 and the Si of the case of this case is much less than the retail price recognized by the court below, and therefore, it affected the conclusion of the judgment of the court below.

The ground of appeal on this point is with merit.

3. Therefore, the judgment of the court below cannot be maintained as it is. Since the defendant's violation of this Act is sentenced to a single sentence on the grounds that the defendant's violation of the remaining Trademark Act and the violation of the Customs Act are crimes of ordinary concurrent crimes or substantive concurrent crimes, the judgment of the court below is reversed without examining the remaining grounds of appeal, and it is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Si-hwan (Presiding Justice)