The purport of strictly limiting the place of sales of drugs under Article 50(1) of the Pharmaceutical Affairs Act, and whether the whole or essential part of the series of acts constituting the sale of drugs should be done in a pharmacy or store or in the same way that can be seen as identical (affirmative) / Whether the restriction on the place of sales under Article 50(1) of the Pharmaceutical Affairs Act applies to cases where a pharmacy founder sells human-use drugs to a veterinary hospital founder (affirmative), and whether the above provision is violated in cases where a pharmacy founder sells drugs to a person who opened a veterinary hospital via Internet or Internet shopping mall (affirmative in principle)

No person, other than a pharmacist or herb pharmacist, shall engage in the business of pharmaceutical affairs, such as establishing a pharmacy, preparing medicines, etc., and any person, who intends to establish a pharmacy, shall install facilities necessary for the facility standards prescribed by the Presidential Decree and make a registration of establishment as prescribed by Acts and subordinate statutes, and in principle, he/she may sell medicines while managing the pharmacy only (Articles 20 (1) through (3), 21 (2), 23 (1) and 44 (1) of the Pharmaceutical Affairs Act).

Furthermore, Article 50(1) of the Pharmaceutical Affairs Act provides that “A pharmacy founder or drug dealer shall not sell drugs at a place other than his/her pharmacy or store,” which strictly limits the place of sale of drugs. This aims at realizing the legislative purpose of the Pharmaceutical Affairs Act (Article 1 of the Pharmaceutical Affairs Act), which aims to contribute to improving national health by ensuring the appropriateness of pharmaceutical manufacturers, and at preventing drug misuse and abuse, as well as at preventing the possibility of deterioration and pollution in the course of storage and distribution. Therefore, a series of acts constituting the sale of drugs, such as the order, preparation, delivery, and taking-out map, should be performed in a way that can be seen as being performed within a pharmacy or store or the same.

However, unlike drug wholesalers, the Pharmaceutical Affairs Act does not stipulate the facility standards to ensure the stability of drugs in the course of distributing drugs, or standards for quality control of distribution of drugs, etc. In addition, the Pharmaceutical Affairs Act only permits a pharmacy founder to sell drugs for human use to a person who opens an animal pharmacy, and does not allow a drug wholesaler to sell drugs for human use to a person who opens an animal pharmacy. Therefore, even where a pharmacy founder sells drugs for human use to a veterinary hospital, the restriction on the place of sales under Article 50(1) of the Pharmaceutical Affairs Act applies as it is. If a pharmacy founder sells drugs to a person who opens an veterinary hospital using the Internet or Internet shopping mall, the sale of drugs at a place other than a pharmacy can be deemed to have been sold, barring special

Articles 1, 20(1), (2), and (3), 21(2), 23(1), 44(1), and 50(1) of the Pharmaceutical Affairs Act; Article 94(1)8 of the former Pharmaceutical Affairs Act (Amended by Act No. 13114, Jan. 28, 2015);

Supreme Court en banc Decision 2008Do3423 Decided October 23, 2008 (Gong2008Ha, 1637) Supreme Court en banc Decision 2014Du39357 Decided December 29, 2016, Constitutional Court en banc Decision 2005Hun-Ma373 Decided April 24, 2008 (Hun-Gong139, 602)

Defendant

Defendant

Law Firm U.S.S. Law, Attorney Sung Jong-chul

Seoul Central District Court Decision 2014No2966 Decided February 9, 2017

The appeal is dismissed.

The grounds of appeal are examined.

No person, other than a pharmacist or herb pharmacist, shall engage in the business of pharmaceutical affairs, such as establishing a pharmacy, preparing medicines, etc., and any person, who intends to establish a pharmacy, shall install facilities necessary for the facility standards prescribed by the Presidential Decree and make a registration of establishment as prescribed by Acts and subordinate statutes, and in principle, he/she may sell medicines while managing the pharmacy only (Articles 20 (1) through (3), 21 (2), 23 (1) and 44 (1) of the Pharmaceutical Affairs Act).

Furthermore, Article 50(1) of the Pharmaceutical Affairs Act provides that “A pharmacy founder or a drug dealer shall not sell drugs at a place other than his/her pharmacy or shop,” which strictly limits the place of sale of drugs. This aims at realizing the legislative purpose of the Pharmaceutical Affairs Act (Article 1 of the Pharmaceutical Affairs Act) aimed at contributing to improving national health by ensuring the appropriateness of pharmaceutical manufacturers, and at preventing drug misuse and abuse, as well as at preventing the possibility of deterioration and pollution in the course of storage and distribution (see Constitutional Court en banc Decision 2005Hun-Ma373, Apr. 24, 2008). Therefore, all or some of the series of acts constituting the sale of drugs, such as the order of drugs, preparation, delivery, and medication guidance, should be conducted in a manner that can be seen as being performed within a pharmacy or shop or the same (see Supreme Court Decision 2008Do3423, Oct. 23, 2008).

However, unlike drug wholesalers, the Pharmaceutical Affairs Act does not stipulate the facility standards to ensure the stability of drugs in the course of distributing drugs, or the quality control standards for distribution of drugs, etc. In addition, the Pharmaceutical Affairs Act only permits a pharmacy founder to sell drugs for human use to a person who opens an animal pharmacy, but does not allow a drug wholesaler to sell drugs for human use to a person who opens an animal pharmacy. Therefore, even where a pharmacy founder sells drugs for human use to a veterinary hospital, the restriction on the place of sale under Article 50(1) of the Pharmaceutical Affairs Act applies as it is (see Supreme Court Decision 2014Du39357, Dec. 29, 2016). If a pharmacy founder sells drugs to a veterinary hospital founder using the Internet or Internet shopping mall, the sale of drugs at a place other than a pharmacy can be deemed as having been sold, barring special circumstances, and thus, the above provisions of the Pharmaceutical Affairs

According to the evidence duly admitted and examined by the first instance court as cited by the court below, the sales act of this case reveals that the Defendant, a pharmacy founder, posted a human drug on the Internet shopping mall, ordered a human body drug posted by the Defendant through the Internet shopping mall by the person who opened a veterinary hospital, a member of the Internet shopping mall, and the Defendant was done by means of transporting the ordered human body drug to the person who opened a veterinary hospital.

The lower court’s determination that the instant charges were guilty is justifiable in light of the foregoing legal doctrine. In so doing, the lower court did not err by misapprehending the legal doctrine on Article 50(1) of the Pharmaceutical Affairs Act, contrary to what is alleged

In addition, the ground of appeal that the court below erred in the misapprehension of legal principles as to intentional deliberation is not a legitimate ground of appeal, as it is alleged in the ground of appeal that the defendant did not consider it as the ground of appeal or as the judgment

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)