The case holding that a pharmacy operator cannot be deemed to meet the requirements for revocation of registration under Article 69 (1) 2 of the Pharmaceutical Affairs Act, in the event that he/she satisfies the requirements for establishment of a pharmacy under Article 16 (5) 4 of the same Act due to an external contingency unrelated to his/her doctor after lawful establishment of a pharmacy is registered.

The case holding that a pharmacy operator shall not be deemed to meet the requirements for revocation of registration under Article 69 (1) 2 of the Pharmaceutical Affairs Act, in case where he/she satisfies the requirements for establishment of a pharmacy under Article 16 (5) 4 of the same Act due to an external contingency unrelated to his/her doctor after lawful establishment of a pharmacy is registered.

Article 16 (5) 4 of the Pharmaceutical Affairs Act and Article 69 (1) 2 of the same Act

Realization Pertaining (Law Firm Law Firm, Attorneys Doh-il et al., Counsel for the plaintiff-appellant)

Ansan-si

July 25, 2003

1. On November 15, 2002, the Defendant’s revocation of the registration of a pharmacy against the Plaintiff on November 15, 2002 (No. 309 of the 3rd floor of the mobilization building, No. 1076-2, 1076-2, and the mobilization Medi-car pharmacy)

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the instant disposition

A. On April 9, 1994, the Plaintiff acquired a pharmacist's license (license number No. 42343) from Nonparty 1 on February 15, 2002, leased 309 of the 3rd floor of the mobilization building 1076-2 from the 3rd floor of the 1076-2 mobilization building in Ansan-si, the Plaintiff registered the establishment of the Defendant on March 16, 2002, the Plaintiff established and operated the instant pharmacy at the above location.

B. At the time when the Plaintiff registered the establishment of a pharmacy to the Defendant, on the third floor of the above mobilization building where the instant pharmacy is located, a cosmetic room was operated with the skin urinology (including the attached skin urinology), internal department, urinology, dental clinic and oriental clinic.

C. The lease agreement between the proprietor of the cosmetic and the finger-type art room was terminated on April 22, 2002, which was after the commencement of the business of the instant pharmacy, and became a child and a member of the National Assembly at the location where the said cosmetic was located. On July 1, 2002, the lease agreement between the proprietor of the cosmetic and the finger-type art room was made by a member of the National Assembly.

D. On November 15, 2002, the Defendant rendered a disposition to revoke the registration of establishment of the instant pharmacy (hereinafter referred to as the “instant disposition”) pursuant to Article 69(1)2 of the Act on the ground that the instant pharmacy falls under the case where a medical institution and a pharmacy are installed under Article 16(5)4 of the Pharmaceutical Affairs Act (hereinafter referred to as the “Act”).

[Evidence] Facts without dispute, Gap 1-5 evidence, Eul 1-5 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) One member and one member with three floors in the mobilization building where the instant pharmacy is located and the skin management room attached thereto fall under a store ordinarily used by the general public and have an exclusive corridor between a medical institution and a pharmacy as stipulated under Article 16(5)4 of the Act. In addition, while the instant pharmacy was registered for the establishment of a pharmacy and the instant pharmacy was operated, if a general store, other than a medical institution, which was operated on the same floor as the instant pharmacy operator, leaves the place of business regardless of the intention of the pharmacy operator, and a new medical institution moved into the same floor and no facility is available for the general public except for pharmacies and medical institutions.

(2) Even if the instant disposition satisfies the premise for the application of the aforementioned laws and regulations, taking into account all the circumstances such as the details of the instant violation and the Plaintiff’s situation, the instant disposition is deemed to have been deemed to have exceeded or abused the scope of discretion due to the Plaintiff’s excessive suspicion.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

Article 16(5) of the Pharmaceutical Affairs Act (amended by Act No. 6153, Jan. 12, 200; Act No. 6153, Jan. 12, 200, newly established a pharmacy to be established as the grounds for non-registration. Article 16(5) of the same Act (amended by Act No. 6511, Aug. 14, 2001) provides that "where a pharmacy is established by dividing, altering or repairing part of the facilities or site of a medical institution," and "where a pharmacy is in place or is constructed by dividing, altering or repairing part of the facilities or site of a medical institution," and "where a passage, such as corridor, stairs, elevator or foot, for exclusive use between a medical institution and a pharmacy, is installed or installed, the measures for prohibiting the assembly of a pharmacy with a medical institution" in relation to the above 4-mentioned provision that "if a pharmacy, other than a medical institution, is established on the same floor of the same building, it is ordinarily prescribed that the above provision does not conform to subparagraph 1 of Article 6 of the Act."

According to the statements and images of gamba, Eul, 11, 12, and 15 (Additional Nos. 15) and each of the following images, the skin management room on the third floor of the mobilization building in which the pharmacy of this case is located can be recognized as a facility used for the management and treatment of patients using the above skin urology with Kim Young-catter and attached gambacology, and also the Korean medical clinic on the same floor and the above oriental medical clinic such as patients and oriental medicine suppliers can not be viewed as a facility ordinarily used by the general public.

However, the grounds for registration of the establishment of a pharmacy, which limits the freedom of business guaranteed by the Constitution, in particular, the provisions on the cancellation of the registration, shall be strictly interpreted within the scope to achieve the purpose of the law. Article 69 (1) 2 of the Act provides that the establishment of a pharmacy without recognizing such grounds despite the fact that the grounds under Article 16 (5) of the Act were established at the time of the establishment registration of the pharmacy, and later there are matters provided for in each subparagraph of Article 16 (5) of the Act. Since the establishment registration of the pharmacy is completed normally, regardless of the fact that the operator of the pharmacy, regardless of the fact that the operator of the pharmacy, who was engaged in the business in the aggregate building, moves out of the general medical institution and moved in the new medical institution without any facilities ordinarily used by the general public except for the pharmacy and the medical institution, the disposition of the establishment of the pharmacy cannot be deemed to be a reason for the revocation of the registration of the previous pharmacy, which is beyond the scope of the plaintiff's discretionary authority, the plaintiff's allegation in this part of this case is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Han Chang-ho