Press Co., Ltd. (Law Firm Chungcheong, Attorneys Park Jong-ho et al., Counsel for the defendant-appellant)

The Minister of Food and Drug Safety (Court of Law, Attorney Lee In-bok)

March 4, 2015

Seoul Administrative Court Decision 2012Guhap23181 Decided July 23, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of suspension of the sale of the pertinent product [seven products for artificial extension (permission number omitted)] of 1 month (from July 23, 2012 to August 22, 2012) against the plaintiff on July 5, 2012.

1. Quotation of judgment of the first instance;

The court's reasoning for this case is that the plaintiff's provision of the equipment of this case during the process of concluding the supply contract of this case constitutes a case where the plaintiff provided economic benefits to the founder of a medical institution, etc. for the purpose of promoting the sale of medical devices, Gap evidence Nos. 14-39, Gap evidence No. 16-26, Gap evidence No. 28, and Gap evidence No. 29 (which includes the numbers of numbers; hereinafter the same shall apply). The court's reasoning for this case is as follows. The court's reasoning for the judgment of the first instance is as follows, except for the addition of the judgment below as to the matters alleged by the plaintiff in the trial. Thus, it is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of

2. Additional matters to be determined;

A. The plaintiff's assertion

1) At the time of the instant disposition, the Defendant merely provided “28 medical institutions with economic benefits, etc. to hospital-use equipment, such as intrusion and computer,” as the grounds for the instant disposition, and specifically, did not specify the kind, quantity, and amount of equipment at any medical institution as to which they were provided with economic benefits, and thus, the Plaintiff was seriously and remarkably disadvantaged in exercising the right of defense in the administrative remedy procedure. Therefore, the instant disposition was unlawful.

2) Among the instant supply contract entered into with a medical institution, there are cases where the Plaintiff explicitly provides the details of the equipment that the Plaintiff agreed to provide to the relevant hospital, and there is no difference in the fact that there was an agreement between the Plaintiff and the medical institution on the details of the equipment and its price conditions that the Plaintiff provided in advance. Thus, the provision of the instant equipment cannot be deemed as the provision of unfair economic benefits as a legitimate benefit under the instant supply contract that the Plaintiff and the medical institution agreed in advance. Therefore, the instant disposition is unlawful

B. Determination

1) As to whether the grounds and reasons for the disposition were not specified

A) Article 23(1) of the Administrative Procedures Act provides that, when an administrative agency takes a disposition, the administrative agency shall present the grounds and reasons therefor to the parties. This purport is to exclude the arbitrary decision of the administrative agency and to enable the parties to properly cope with the administrative remedy procedure. Therefore, in full view of the contents stated in the written disposition, related statutes, and the overall process, etc. up to the relevant disposition, where it is sufficiently known whether the disposition was taken by the parties for any reason, and where it is deemed that there was no particular hindrance to the party’s objection to taking the disposition into the administrative remedy procedure, the disposition cannot be deemed unlawful due to such failure, even if the grounds and reasons for the disposition are not specified in the written disposition (see Supreme Court Decision 2011Du18571, Nov. 14, 2013).

B) In full view of the purport of the entire pleadings, the following facts can be acknowledged in light of the evidence No. 7, evidence No. 2, evidence No. 2, evidence No. 11, and evidence No. 14

① A written administrative disposition issued by the Defendant to the Plaintiff in the course of the instant disposition is written as the grounds for the disposition, “from December 1, 2010 to August 30, 2011, providing 28 medical institutions with economic benefits, etc. to promote the sale of medical devices, such as a computer, in violation of the scope of economic benefits, etc. permissible under the Medical Devices Act,” and as the grounds-based Act and subordinate statutes, “Article 14, Article 32 of the Medical Devices Act, Article 15-2, and Article 35 [Attachment 7] of the Enforcement Rule of the Medical Devices Act, Article 10-2, subparagraph 10-2, subparagraph 10-2, Article 10-2, subparagraph 10-2, the Medical Devices Act, Article 6, the Addenda of the Medical Devices Act, Article 10564, the Enforcement Rule of the Medical Devices Act, and Article 15, subparagraph 6, the Enforcement Rule of the Medical Devices Act, respectively.”

② On November 201, 201, the Busan Regional Police Agency notified the Defendant through the Ministry of Health and Welfare that the Plaintiff provided approximately KRW 6,60,000,00,00 to 54 medical institutions, for the purpose of facilitating the sale of artificial extension technology and blood circuits from December 1, 2010 to August 17, 201. The details and value of the Plaintiff’s notification include the name of each medical institution and the details and value of equipment supplied for each medical institution.

③ As a result of on-site inspections conducted by the Seoul Regional Food and Drug Safety Agency on December 5, 201, the Plaintiff confirmed that the Plaintiff sold 54 artificial kidycs and nine items and seven items of artificial kidrative blood circuits to 54 medical institutions nationwide from April 14, 201 to October 31, 2011.

④ Based on the above investigation results and on-site inspection results, the Defendant scheduled to take one month of the suspension of the Plaintiff’s sales of the said 16 items, and notified the Plaintiff of the prior notice of disposition and the holding of a hearing on February 3, 2012. On February 16, 2012, the Nonparty, the representative director of the Plaintiff, through his agent, perused and copied the documents and documents related to the investigation results, and subsequently, was present at the hearing on February 21, 2012 and stated that “The items subject to administrative disposition are likely to be reduced or reduced according to the prosecutor’s opinion on prosecution, so additional opinions should be presented at the time of the prosecutor’s opinion on prosecution.”

⑤ On March 22, 2012, the Busan District Prosecutors’ Office continued to investigate the case of rebates of medicines, and around 43 medical institutions (excluding the Plaintiff’s suspicions from December 1, 2010 to August 17, 201) in total, 43 medical institutions (excluding the case where the suspension of indictment was imposed) filed a claim with the Plaintiff for a summary order issued by each of the above medical institutions on the grounds that the Plaintiff and the Nonparty filed a claim with the Defendant for a summary order issued by each of the above medical institutions on the following grounds: (a) the contract for the supply of divers for artificial extension and the use of artificial extension blood circuits was concluded to promote the sale of the medical devices; and (b) the Plaintiff filed a claim with the Defendant for a summary order issued by each of the above medical institutions around 201: (c) the Plaintiff and the Nonparty; and (d) the value of each of the instant summary order issued to each of the said medical institutions around 21,201.

④ On May 14, 2012, the Seoul Regional Food and Drug Administration conducted a second on-site inspection with respect to the Plaintiff on the basis of the results of the investigation by the said prosecutor’s office. As a result, the said 43 medical institutions confirmed that the Plaintiff sold artificial kidne and blood circuits for artificial effication from December 1, 201 to August 8, 201, together with the fact that the Plaintiff and the said medical institutions sold artificial efficulties and the blood circuits for artificial effication and the supply contract for blood circuits.

At the time of the Plaintiff’s representative director, the Nonparty signed and sealed a written confirmation stating that “The Nonparty entered into a contract with the relevant hospital for the sale of total of 28 medical institutions, such as the National University Hospital, etc., of the drugs for artificial extension and the blood circuit for artificial extension, including “the equipment to be used in the hospital blood room, such as TV for patients or TV for patients, computer, and dives for patients,” and provided the equipment of the hospital’s blood room.” The said written confirmation was accompanied by 28 medical institutions and the details of the customer supply specified in the terms and conditions of the contract.

7) On the basis of the above on-site inspection results, investigation results, etc., the Defendant scheduled the sales suspension of seven products for the Plaintiff’s artificial extension engine for seven products, and conducted a hearing with respect to the Plaintiff on June 27, 2012 through prior notice, etc., and conducted the instant disposition.

C) According to the above facts, the Defendant clearly presented the instant disposition’s relevant laws and regulations that serve as the basis for the administrative disposition, and ② The reason for the disposition was stated as “from December 1, 2010 to August 30, 201, providing 28 medical institutions with economic benefits, etc. to promote the sale of medical devices, such as bed and computer,” and ③ In full view of the details investigated by the Plaintiff during the process leading to the instant disposition, it was sufficiently possible to find out which grounds and reasons were what were the Plaintiff at the time of the instant disposition.

Therefore, it cannot be said that the disposition of this case is in violation of Article 23 (1) of the Administrative Procedures Act, and this part of the plaintiff's assertion is without merit.

2) As to whether the provision of economic benefits constitutes a provision of economic benefits

In full view of the purport of the argument in each of the statements in Gap evidence No. 9-6, 7, 16, 25, 28, 25, 31, 35, and Gap evidence No. 14-5, 6, 11, 18, 34, 35, and 36, in the instant supply contract, where the details of the equipment are explicitly stated in the contract or the written estimate attached and accepted by the contract (the Incheon Red Cross Hospital), if the details of the equipment are stated in the written estimate attached and accepted by the contract (the hospital affiliated with the National University of Korea, the hospital affiliated with the National Foundation of Korea, the hospital affiliated with the National University of Korea, the hospital affiliated with the National University of Korea, and the university affiliated with the High School of Korea), the fact that there is a leap, the unit price of the equipment increased due to the provision of equipment, the price, and the supply of equipment, is also recognized.

However, regardless of whether there is an oral agreement between the parties to the contract of this case or a written confirmation of supply of consumed goods, which is attached to the supply contract of this case or a written confirmation of supply of consumed goods, the substance of the agreement is the same in that the plaintiff provides a medical institution operator, etc. with economic benefits, with free supply of equipment that does not need to be provided as a whole with the consumed goods of this case, in order to promote the sale of the consumed goods of this case, under the condition that the plaintiff exclusively supplies the consumed goods of this case, and it is not different from that of the fact that there is room to adjust the price of the consumed goods of this case depending on whether to provide the equipment. Thus, this constitutes the provision of economic benefits

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Sung Pung-tae (Presiding Judge)