A. Whether the “preparation” of a drug under Article 21(1) of the Pharmaceutical Affairs Act includes making a drug for a specific disease by mixing the herb drugs (affirmative)

(b) Scope where herb sale of herb druggists is permitted; and

A. The term “preparation of medicines” under Article 21(1) of the Pharmaceutical Affairs Act refers to preparing medicines to use for the purpose of treating or preventing specific diseases of a specific person in accordance with the specific directions by mixing two or more medicines or dividing one medicine into a certain quantity according to a specific prescription. The mixing of medicines is generally included in the concept of the above preparation.

B. In principle, a herb druggist is not allowed to prepare general medicines because he is not a pharmacist. However, considering the specificity that the herb pharmacist is not in need of special attention to public health and sanitation is less dangerous than that of other medicines and the practice on the sale of herb drugs transferred from the aftermath, Article 36(2) of the Pharmaceutical Affairs Act provides a herb druggist with a mixed sales capacity meeting the pharmacist’s ability to prepare medicines. Thus, a herb druggist is not allowed to prepare medicines by mixing the herb at his own discretion according to a prescription based on his own judgment, but the act of mixing and selling the herb according to the prescription and the prescription of herb doctor at the time of the patient’s request, the act of selling the herb is permitted pursuant to the law, and it is not punishable pursuant to Article 74(1)1 of the Pharmaceutical Affairs Act by deeming the herb druggist who has committed such act as a violation of the provisions of Article 21(1) of the Pharmaceutical Affairs Act.

(a)Article 21(1) of the Pharmaceutical Affairs Act;

A. Supreme Court Decision 73Do1089 delivered on April 23, 1974 (Gong1974,7843) 81Do2596 delivered on March 9, 1982 (Gong1982,448)

A

Defendant

Daegu District Court Decision 91No1259 delivered on August 29, 1991

The judgment of the court below is reversed.

The case shall be remanded to the Daegu District Court Panel Division.

The defendant's grounds of appeal are examined.

1. The court below accepted the criminal facts listed in the judgment of the court of first instance as they are, and recognized the fact that the defendant, despite the fact that he was not a pharmacist, was a herb druggist from March 19, 190 to March 5, 191, prepared and sold herb drugs, such as livestock and agricultural medicine, to eight patients, including non-indicted B, etc., and sentenced the punishment by judgment. The defendant determined that he falls under "a person who violates the provisions of Article 21 (1)" under Article 74 (1) 1 of the Pharmaceutical Affairs Act (hereinafter referred to as the "Act").

2. Article 21(1) of the Act provides that a person who is not a pharmacist may not prepare medicines. The term "preparation" refers to preparing medicines for the purpose of treating or preventing a specific disease of a specific person in accordance with a specific usage by mixing two or more medicines or dividing one medicine into certain quantity according to a specific prescription (see, e.g., Supreme Court Decision 73Do1089, Apr. 23, 1974; 81Do2596, Mar. 9, 1982). In general, preparation of medicines for a specific disease of a specific person is included in the above concept of preparation of medicines.

However, Article 36(2) of the Act permits a herb druggist to sell herb drugs according to the prescription stated in the accepted herb book or prescription of herb doctor at the patient's request. According to Article 37(2) of the Act, a herb druggist shall permit a person who has passed an examination for herb druggist prescribed by the Presidential Decree only within an area prescribed by the Ordinance of the Ministry of Health and Welfare. According to Article 28 of the Enforcement Decree of the same Act, the examination for a herb druggist shall be divided into a written examination and a practical examination, and the subject of the written examination shall be: (a) the distinction between the name, nature, use, storage method, and toxic medicine of medicines listed in the prepared medicine and pharmacological; (b) the distinction between the name, nature, storage method and toxic medicine of medicines listed in the (c) the prescription and the prescription stated in the accepted herb book, and (c) the practice of herb druggist is not a pharmacist, and thus, it is reasonable to see that a general pharmacist cannot prepare medicines because of the absence of a pharmacist, but, in principle, it is reasonable to see that a specific medicine or pharmaceutical medicine, which has been recovered from a specific form.

Therefore, it is not allowed for a herb druggist to prepare medicines by mixing the herb drugs at his own discretion according to the prescription based on his own judgment, but the act of mixing and selling the herb drugs according to the prescription and prescription of herb doctors listed in the accepted herb medicine book at the time of patient's request pursuant to Article 36 (2) of the Act is allowed by law, and it is not possible to punish the herb druggist who committed such act by deeming the herb druggist as a person who violated the provisions of Article 21 (1) of the Act as a person who has violated the provisions of Article 21 (1) of the Act.

3. However, considering the evidence cited by the judgment of the court of first instance as cited by the court below after comparing it with the records, the defendant can recognize the fact that he sold herb drugs by mixing them with the disease as acknowledged by the court below, but according to the above evidence as consistently stated from the investigative agency to the court below's trial date, according to the defendant's consistent statement from the investigative agency to the court below, the defendant as a herb druggist, at the request of the patients who found the herb drugs working for the defendant, claims that the herb druggist sold herb drugs by mixing them with the prescription as stated in the prescription form, which is the limited herb medicine form, and contrary to the defendant's assertion, there is no evidence to prove that the defendant sold herb drugs by mixing them without being based on his own prescription, according to the result of the diagnosis of the patient's disease.

Nevertheless, the court below did not properly examine whether the defendant, as a herb druggist, mixed and sold herb drugs according to the prescriptions listed in the accepted herb medicine book at the patient's request, or whether he mixed and sold herb drugs according to his own independent prescription without being based on the result of diagnosis of patient's disease. Thus, the court below judged that the defendant constitutes a person who violates the provisions of Article 21 (1) of the Act. Thus, the court below did not err in the misapprehension of legal principles as to Articles 21 (1) and 36 (2) of the Act or without sufficient examination, and it is clear that such illegality affected the conclusion of the judgment, and therefore, there is a reason to point this out.

4. Therefore, the judgment of the court below is reversed, and the case 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 Yoon Jae-ho (Presiding Justice)