In a case where Defendant A, who established and operates a pharmacy as a pharmacist, sells drugs to patients who are not pharmacists working at a medical pharmacy established and operated by Defendant B, and Defendant B was indicted on charges of violating the Pharmaceutical Affairs Act and of violating the Pharmaceutical Affairs Act by aiding and abetting Defendant A, the case holding that Defendant A was acquitted on the ground that Defendant A and B cannot be deemed to have entered into a temporary employment contract or a delegation contract for the operation of a pharmacy for a certain period or time, on the grounds that Defendant A and B did not constitute “a pharmacist working at a medical pharmacy” and Defendant A did not constitute “a pharmacist working at a medical clinic,” and on the other hand, Defendant B was not guilty on the ground that Defendant A and C’s request for the preparation and sale of drugs at a medical pharmacy was the employees of the medical pharmacy.

As a pharmacist, Defendant A, who established and operates a pharmacy, sells drugs to patients by preparing and selling medicine at a medical pharmacy established and operated by Defendant B, which is not a pharmacist working for C’s pharmacy, and Defendant B was prosecuted for committing a violation of the Pharmaceutical Affairs Act and a violation of the Pharmaceutical Affairs Act by aiding and abetting Defendant A to do so.

The issue of whether a person is a pharmacist working at the pharmacy" as provided in Article 44(1) of the Pharmaceutical Affairs Act shall be determined by comprehensively taking account of the prior meaning of "work at the pharmacy" as well as the perspective of public health and sanitation. In each case, the issue of whether a pharmacist, other than a pharmacy founder, prepares and sells drugs at the pharmacy, the preparation and sale period of the pharmacy, whether a pharmacist other than a pharmacy founder, etc., opens a pharmacy or works at another pharmacy, and whether a pharmacist pays remuneration, etc., should be determined by comprehensively taking into account whether a contract was concluded between the pharmacy founder and the pharmacist for temporary employment or delegation of the operation of the pharmacy for a certain period of time between the pharmacy founder and the pharmacist, and whether the pharmacy operator's management and supervision are sufficiently affected by the pharmacy founder's pharmacy operator's request. As such, Defendant A did not have been engaged in his duties at the normal pharmacy, Defendant B entered into an employment contract on the pharmaceutical's work at the time, which was not only for the first time to work at the pharmacy, but also for the first time, Defendant C et al.

Subparagraph 12 of Article 2, Articles 20(1), 21(1) and (2), 23-2, 24(4), 44(1), 50, 93(1)7 of the Pharmaceutical Affairs Act, Article 31(1) of the Criminal Act

Defendant 1 and one other

Freeboard-gu et al.

Attorney Lee Lee-soo

A sentence to Defendant 1 shall be suspended.

Defendant 2 is not guilty.

Defendant 1 is a person who operates the “○○ Contracting State” in Yangsan-si ( Address 1 omitted).

No person, other than a pharmacy founder or a pharmacist working for the relevant pharmacy, shall sell or acquire drugs for the purpose of sale.

Nevertheless, at around 08:41 on October 26, 2018, the Defendant: (a) prepared and sold to Nonindicted 1 of the patient Nonindicted 1 of the “△△ University Hospital” located in Yangsan-si ( Address 2 omitted); (b) around 90 minutes of preparation prescribed by Nonindicted 2 of the △ University Hospital’s doctor Nonindicted 2; and (c) around 7,000 won of preparation prescribed by Nonindicted 4 of the same hospital’s doctor Nonindicted 3 of the patient; and (d) sold the patient Nonindicted 3 of the same hospital, respectively.

As a result, the Defendant sold drugs even though it is not a pharmacist working for the founder of the above “△△ Pharmacy” or “△△ Pharmacy.”

1. Each legal statement of the defendant 1 and the defendant 2

1. Written accusation of the mass production market;

1. The statement of Nonindicted 5

1. A criminal investigation report (attaching evidentiary materials and video files);

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 93 (1) 7 of the Pharmaceutical Affairs Act, the main sentence of Article 44 (1) of the Pharmaceutical Affairs Act, the selection of fines

1. The type to be suspended;

Fines 1,000,000

1. Invitation of a workhouse;

Article 70(1) of the Criminal Act (100,000 won per day)

1. Suspension of sentence;

Article 59(1) of the Criminal Act (Taking into account the favorable circumstances described in the following sentencing grounds):

1. The summary of the defendant 1 (hereinafter referred to as the "defendants") and the defense counsel's defense counsel's defense counsel's defense counsel

The Defendant, who is the pharmacy founder of the △△△ Pharmacy, concluded a free labor contract with Defendant 2, who is the pharmacy founder of the △△ Pharmacy, to temporarily work at the “△△ Pharmacy” on the date stated in the facts charged, and ought to be deemed to have sold drugs at the “△△ Pharmacy.” Therefore, the Defendant constitutes “a pharmacist working at the relevant pharmacy” as prescribed by Article 44(1

2. Determination

A. The provisions of the Pharmaceutical Affairs Act and the location of an issue;

At the same time, the Pharmaceutical Affairs Act prohibits a person, other than a pharmacist, from opening a pharmacy (Article 20(1)); and in principle, sells drugs by a person, other than a pharmacy founder or a pharmacist working for the relevant pharmacy (Article 44(1) main text of the Pharmaceutical Affairs Act). Furthermore, the Pharmaceutical Affairs Act stipulates that “A pharmacy founder shall not sell drugs at a place other than a pharmacy or store” (Article 50).

In light of the language and structure of the above statutory provisions, the term “the pertinent pharmacy” under Article 44(1) of the Pharmaceutical Affairs Act means the place where a pharmacy founder is established and sale of drugs is permitted, and it is clear that the meaning of the pharmacy is the same, and the phrase “no person, other than a pharmacist working for the relevant pharmacy, may sell drugs,” under the same provision, can be interpreted as “no person, other than a pharmacist working for the pharmacy established by a pharmacy founder under Articles 44(1) and 50 of the Pharmaceutical Affairs Act, shall sell drugs, etc. at the relevant pharmacy.”

The purpose of the Pharmaceutical Affairs Act, which prescribes that a pharmacy founder and a pharmacist working for the relevant pharmacy may sell medicines, is to ensure that the sale of medicines has a significant impact on the national health, and thus it is inappropriate to leave the sale of medicines to the public’s freedom, and thus, generally prohibits such sale, and allow the sale of medicines by cancelling a general prohibition only to a pharmacist qualified through a certain test (see Supreme Court Decision 98Do1967, Oct. 9, 198).

As to the instant case, the Defendant: (a) committed an act of preparing and selling medicine to two patients for a short period of not more than ten minutes at the “△△△ pharmacy” established by Defendant 2, who is not a pharmacy directly opened by the principal; and (b) in the instant case, whether the Defendant, as a “ pharmacist working at the said pharmacy”, was in a position to sell medicine at the said pharmacy pursuant to Article 44(1) of the Pharmaceutical Affairs Act.

B. Criteria for interpreting the “ pharmacist working for the relevant pharmacy” under Article 44(1) of the Pharmaceutical Affairs Act

1) Regarding the prior meaning of “work”

First of all, Article 44(1) of the Pharmaceutical Affairs Act only states the expression "work" and does not stipulate specific legal relations (labor contracts, delegation contracts, etc.) that form a work structure.

However, the definition of “work” refers to “work performed at a workplace” and such definition is premised on the formation of a certain legal contractual relationship to engage in the work at the workplace, regardless of a labor contract or a delegation contract. The form of work performed by a pharmacist is the representative after a labor contract is concluded between a pharmacy founder and a pharmacist.

Meanwhile, a pharmacy founder is practically unable to operate a pharmacy for a certain period of time due to personal circumstances. In such a case, a regular week under the Labor Standards Act is ordinarily limited to a certain period of time or time without changing the form of a labor contract. It seems that the method of operating a pharmacy is widely taking charge of another pharmacist. This type of work is an issue as to whether it can be included in the “work” under Article 44(1) of the Pharmaceutical Affairs Act. From the perspective of the prior meaning of “work”, it is reasonable to determine whether the legal relationship between the pharmacy founder and the pharmacist as seen above is included in the “work” on the basis of whether the legal relationship between the pharmacy founder and the pharmacist was reached in the level of the conclusion of a delegation contract concerning temporary employment contracts or the operation of a pharmacy for a certain period of time.

2) Access from the perspective of public health and sanitation

The public nature of drugs is very important because they have a large impact on the national health. In particular, since drugs require thorough management of methods of use, usage, and dosages due to their characteristics, it is more important to ensure that the drugs can be administered safely to the patients under the thorough management and instruction with professional knowledge of the drugs in question. Accordingly, in terms of the sales order of drugs, various restrictive factors under the Pharmaceutical Affairs Act are applied in order to ensure that high-quality pharmaceutical services can be provided to consumers.

Specifically, the sale of drugs at a place other than a pharmacy or a store established by a pharmacy founder is prohibited (Article 50 of the Pharmaceutical Affairs Act), and a pharmacist may establish only one pharmacy, and a pharmacy founder shall manage the pharmacy directly unless he/she has a managerial pharmacist (Article 21(1) and (2) of the Pharmaceutical Affairs Act). In addition, in cases of over-the-counter drugs sold without a doctor’s prescription for the proper selection and use of drugs, it is necessary to provide medication guidance in cases of over-the-counter drugs, and in cases of over-the-counter drugs, it is always necessary to provide medication guidance, and in cases of over-the-counter drugs, the person who provides medication guidance is limited to a pharmacist (Article 2 subparag. 12 and Article 24(4) of the Pharmaceutical Affairs Act). In such cases, a pharmacist imposes a duty to verify information, such as whether they are drugs identical with the content of prescription when he/she prepares drugs (Article 23-2 of the Pharmaceutical Affairs Act).

However, the types of prescription and general medicine that require preparation of drugs are different depending on a doctor’s prescription, and the management and storage status, degree, and management standards for the facilities and medicines of the relevant pharmacy are different depending on each pharmacy. Such problems may affect the observance of various obligations prescribed by the relevant statutes, including the guidance of taking medicines at the time of selling medicines, and may also be linked to health and hygiene risks, such as misuse and abuse of medicines, deterioration and pollution of medicines in the process of storing and selling medicines. As seen earlier, the Pharmaceutical Affairs Act only allows a pharmacist to establish a pharmacy, and as a matter of principle, a pharmacy founder is obliged to strictly manage the relevant pharmacy (Article 21(1) and (2) of the Pharmaceutical Affairs Act).

In light of the importance of the management of a pharmacy, it is reasonable to interpret that a pharmacist who prepares and sells drugs at the pharmacy established by a pharmacy founder (a working pharmacist as provided for in Article 44(1) of the Pharmaceutical Affairs Act or a management pharmacist as provided for in Article 21(2) of the Pharmaceutical Affairs Act) as a pharmacist who is in the position of excluding concerns and risks arising from the above public health and sanitation under the thorough management and supervision by a pharmacy founder. In interpreting the meaning and scope of a “ pharmacist working at the relevant pharmacy” as provided for in Article 44(1) of the Pharmaceutical Affairs Act from the perspective of public health and sanitation, it is necessary to consider the importance of the safety and appropriateness of the sales of drugs based on the management and supervision by a pharmacy founder from the perspective of public health and sanitation.

3) Sub-decisions

As seen earlier, the Pharmaceutical Affairs Act does not have a clear definition of the “ pharmacist working at the relevant pharmacy” as prescribed by the said Act, and is also responsible for the interpretation of the scope and contents of the “work”. Ultimately, the issue of whether a pharmacist working at the relevant pharmacy falls under the category of “work” as prescribed by the said Act shall be determined by taking into account all the circumstances, such as the relationship between the relevant pharmacy founder and the pharmacist in addition to the prior meaning of the “work”, the developments leading up to preparing and selling medicines at the relevant pharmacy, the preparation and sale period, the number of times during which a pharmacist, other than a pharmacy founder, has opened another pharmacy or worked at another pharmacy, and whether a pharmacist who is not a pharmacy founder, has paid remuneration, etc., in individual cases, it is reasonable to determine whether a temporary employment contract or a delegation contract between a pharmacy founder and the relevant pharmacist is concluded for a certain period of time, and the management and supervision by the pharmacy founder are sufficiently affected by the pharmacy founder.

C. Whether the defendant constitutes "a pharmacist working for the relevant pharmacy" under Article 44 (1) of the Pharmaceutical Affairs Act

1) Facts of recognition

In full view of the purport of the entire pleadings, the following facts can be acknowledged.

① The Defendant is a pharmacist who establishes and operates a “○○○ pharmacy” located near the “△△○ pharmacy,” and was working at the “○○○ pharmacy” as stated in the facts charged in the instant case.

② Defendant 2, who is the founder and operator of the △△△ pharmacy, was unable to work at the “△△△ pharmacy” due to personal circumstances on the above date, and asked Nonindicted 6 of a pharmacist working at the “○○ pharmacy” through the Defendant to work at the “△△” pharmacy for one day.

③ At around 08:40, prior to Nonindicted 6’s attendance at the “△△ pharmacy,” the patient visited the above pharmacy, presented a prescription, and requested the preparation of medicine. Accordingly, Nonindicted 7, who worked as the head of the “△△△ pharmacy,” asked the above patient to contact the Defendant who was working at the “○○○○ pharmacy” and prepare medicine for two patients from 08:41 to 08:44.

2) Determination

Considering the above-mentioned facts and the above-mentioned interpretation criteria as well as the overall purport of the records and arguments, taking into account the following circumstances, the Defendant and Defendant 2 cannot be deemed to have concluded a temporary employment contract or a pharmacy operation delegation contract with respect to the preparation and sale of drugs at a “△△ pharmacy” for a certain period or time, and thus, it is difficult to view that the Defendant constituted “a pharmacist working at a “△△ pharmacy.”

① It is clear that the Defendant, as the founder of the “○○○ Contracting State,” did not have performed his duties with an entry in the “△△△” pharmacy.

② Defendant 2 concluded a labor contract with another pharmacist, other than the Defendant, on the date and time indicated in the instant facts charged. The Defendant’s preparation and sale of drugs in “△△ Pharmacy”, as indicated in the facts charged, was derived from a sudden situation in which the pharmacist, who decided to work at “△△ Pharmacy” on the same day, did not yet work at the “△△ Pharmacy” and the patient visits.

③ In particular, the Defendant’s above marketing of drugs was derived from the Defendant’s request by the staff of the “△△ pharmacy” rather than Defendant 2, and the request also was for the preparation and sale of drugs only for one patient under the name of the patient for a short period of ten minutes before the pharmacist goes to work. Moreover, there was no promise or payment for the above marketing of drugs.

④ The Defendant, while entering into a labor contract with Defendant 2, appears to have not been written in the “△△” pharmacy while working in the “△△” pharmacy. Therefore, it is difficult for the Defendant to properly grasp the current status of the management of drugs and the kind of drugs sold by the “△△” pharmacy, and there seems to have been no choice but to depend on considerable parts on the general employees working in the said pharmacy in selling drugs.

⑤ Moreover, as the above sales of drugs was immediately conducted upon the request of the staff of the “△△△” pharmacy, the Defendant did not have any time or opportunity to undergo management, supervision, or education of Defendant 2, who is the founder of the “△△△” pharmacy, in selling the drugs.

3) Sub-decisions

Therefore, since the facts charged against the defendant in violation of the Pharmaceutical Affairs Act are fully convicted, the above assertion by the defendant and the defense counsel cannot be accepted.

The crime of this case is that the Defendant, who had established and operated a pharmacy as a pharmacist, did not work for a pharmacy established and operated by another pharmacist, but sold the drug at the pharmacy, and it cannot be deemed that the illegality of the crime is light in that it disturbs the sales order of the drug closely related to the national health.

However, in a sudden situation where a pharmacist visits a neighboring pharmacy prior to his/her attending school, the Defendant committed an error by failing to refuse the request from the neighboring pharmacy staff of the Defendant, and committed an act of preparing and selling medicines only for two patients for a short period of about five minutes. The aforementioned act of selling medicines does not actually cause harm to health and hygiene, and the fact that the Defendant did not have any previous conviction, etc. is considered favorable to the Defendant. Furthermore, the sentence of a fine to the Defendant shall be suspended by taking into account various sentencing conditions shown in the records and arguments, such as the Defendant’s age, character and conduct, environment, and circumstances after the commission of the crime.

1. Summary of the facts charged against Defendant 2 (hereinafter referred to as “defendants”)

The Defendant is a person who operates a “△△” pharmacy in Yangsan-si ( Address 2 omitted).

On October 26, 2018, at around 08:41, 2018, the Defendant: (a) requested that Defendant 1 prepare and sell drugs from patients who found the above “△△△” pharmacy; (b) caused Defendant 1 to drink drugs at the above “△△△” pharmacy, which is not the pharmacy it opened.

Thus, around October 26, 2018, Defendant 1 sold the sum of 41,100 won to the patients who found there as stated in the criminal facts in the above “△△ Pharmacy” around 08:41.

Accordingly, Defendant 1 instigated Defendant 1 to sell drugs even though he was not the founder of the above “△△” pharmacy.

2. Determination

This part of the facts charged is premised on Defendant 1’s request for the preparation and sale of drugs against patients who found “△△△” pharmacy.

However, according to the evidence mentioned above, the person who asked Defendant 1 to prepare and sell drugs at the “△△ Pharmacy” and asked Defendant 1 to sell them is acknowledged the fact that Nonindicted 7, an employee of the “△△ Pharmacy” rather than the Defendant. Furthermore, there is no evidence that Nonindicted 7 requested Defendant 1 to do so and Defendant 1 contacted Defendant 1 in the process of preparing and selling drugs at the “△△ Pharmacy” and Defendant 1 contacted Defendant 1, etc., and there is no evidence suggesting that Defendant 1 was aware of the above sales of drugs.

Therefore, even though Defendant 1 was not a pharmacist working at the △△△ pharmacy, Defendant 1 cannot be deemed to have abetted Defendant 1 to sell drugs at the above pharmacy.

3. Conclusion

Therefore, this part of the facts charged constitutes a case where there is no proof of crime, and thus, it is so decided as per Disposition with the decision of not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. The summary of the judgment of not guilty pursuant to the proviso of Article 58(

Judges Song Jae-sung

1) Article 11 of the Labor Standards Act and Article 7 [Attachment 1] of the Enforcement Decree of the same Act shall apply to a business or workplace which employs not more than four full-time workers, the provisions on labor contracts under the Labor Standards Act, such as the preparation of a written employment contract, the specification of the working conditions, and the working conditions of