Plaintiff (Law Firm Geum River, Attorneys Kim Won-tae et al., Counsel for the plaintiff-appellant)

Chang Gun

March 21, 2013

1. The plaintiff's claim is dismissed.

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

On February 24, 2012, the defendant revoked the disposition not to change the registered matters of a pharmacy against the plaintiff.

1. Details of the disposition;

The following facts can be acknowledged according to the purport of Gap evidence 1, Gap evidence 2, Eul evidence 6-1 through 5, Gap evidence 8-1, 2, Eul evidence 13 and the whole pleadings.

A. On January 18, 1992, Nonparty 1, who is a doctor, completed the construction of a 2-story building on the ground of 417 square meters wide and 417 square meters wide and 572 square meters wide and above the above site and (2 omitted) large and 137 square meters wide and 572 square meters wide and above the ground as its site, and completed the construction of a medical institution building of 4 stories, 1,038.9 square meters wide and above ground (hereinafter “the instant medical institution”) and a retail store of 42 square meters wide and above ground (hereinafter “the instant building”).

B. On December 16, 201, the Plaintiff, a pharmacist, opened and operated a pharmacy under the trade name “○○○○ pharmacy” on the ground of the building located in the Gyeongnam-gun ( Address 4 omitted), from around 16, 2011, filed an application for change of the registered pharmacy with the Defendant on December 16, 2012 in order to relocate the said pharmacy to the instant building.

C. On February 24, 2012, the Defendant rendered a provisional disposition for modification of registered matters of the instant building on the ground that the instant building constitutes Article 20(2)2 of the Pharmaceutical Affairs Act (a place where the Plaintiff intends to establish a pharmacy is an establishment or premises of a medical institution) and that the establishment of the said pharmacy falls under Article 20(2)3 (a case where a pharmacy is established by dividing, altering, or repairing part of the facility or site of a medical institution) and that the instant building and the instant medical institution have an exclusive passage (a case where a passage, such as an exclusive corridor, stairs, elevator, or footbridge, is installed or installed between a medical institution and a pharmacy) under Article 20(2)4 of the same Act (hereinafter “instant disposition”).

D. The Plaintiff filed an administrative appeal seeking revocation of the instant disposition, but the Gyeongnam-do Administrative Appeals Commission dismissed the Plaintiff’s appeal on May 31, 2012. 2.

(a) Relevant statutes;

/ Pharmaceutical Affairs Act

Article 20 (Registration of Establishment of Pharmacies)

(5) No registration of establishment shall be granted in any of the following cases:

2. Where a pharmacy is to be established in a place which is located within facilities or compound of a medical institution;

3. Where a pharmacy is established by dividing, altering or repairing part of facilities or sites of a medical institution;

4. Where a passage, such as an exclusive corridor, stairs, elevator or footbridge, is in place or to be constructed between a pharmacy and a medical institution.

B. Whether the instant building constitutes Article 20(5)2 of the Pharmaceutical Affairs Act

1) The plaintiff's assertion

The building of this case is different from that of a medical institution. The building of this case is not used as an exclusive parking lot for a medical institution. The building of this case is currently used as a bus stop for five days in the past, and its part is currently being used as a bus stop, so the building of this case and the medical institution of this case are classified spatial and functionally. Therefore, it cannot be deemed that the building of this case is located within the facility or premises of

(ii) the facts of recognition

The following facts may be acknowledged in full view of the evidence Nos. 4, 5-1, 2, 6-1, 6-5, 8-1, 2, 9, 10-1, 2, 5-2, 5-1, 7-1 through 5, 10, 11-1, 5-2, and 10-1, 5-2, and 5-2, and 10-1, and the video products of this court as the result of on-site inspection and the whole purport of pleadings:

A) According to the instant building and the registry of the register and the building ledger of the medical institution, the instant medical institution were registered and recorded as the first unit of building and the second unit of building, and the (name 2, 3, and 1 omitted), respectively, as the instant building and the site of the instant medical institution (the instant medical institution is constructed on the ground ( Address 3, 1 omitted), and the instant building is constructed on the ground ( Address 2, 1 omitted). In addition, the first floor of the instant medical institution is used as both as the Council members, and the fourth floor as the retail store.

B) All buildings adjoining to the left and right of the instant medical institution are constructed in a state abutting on the road side, while the instant medical institution was constructed at a distance of about 19 meters from the road to the south, and thus, between the instant medical institution and the instant medical institution. While extending the instant medical institution, the instant building was constructed at a distance of about 3 meters from the instant medical institution’s building and the instant medical institution on the left-hand edge of the entrance door, the main entrance door, while extending the instant medical institution. Meanwhile, the latter part of the instant building was installed in the passage between the instant medical institution and the instant building, with the access of the people with poor mobility such as the disabled and the aged, and was constructed as a slope and a stairs of about 5 meters from the entrance of the instant medical institution to the end of the instant medical institution. The front door of the instant building was located in the place abutting on the said slope.

C) On August 25, 2011, the Plaintiff entered into a lease agreement with Nonparty 2 (the above Nonparty 1’s wife, who is the operator of the instant medical institution), who is the owner of the instant building and the instant building, with a deposit of KRW 140,00,000, and two years from the date of the lease contract.

3) Determination

In determining whether a place where a pharmacy is to be established constitutes “the inside of facilities or premises of a medical institution” prohibited under Article 20(5)2 of the Pharmaceutical Affairs Act, along with the literal meaning thereof, the legislative intent of the above provision should be considered to ensure that a pharmacy is placed in an independent place from a medical institution spatial and functionally independent from a medical institution in order to impose an obligation to provide outpatients for outpatients in accordance with the principle of pharmaceutical distribution (see Supreme Court Decision 2002Du1095, Dec. 12, 2003, etc.).

As to the instant case, the following circumstances revealed by the above recognition, namely, ① the building of this case was constructed within the same site as the instant medical institution upon the extension of the instant medical institution, ② the building of this case was entered into two units, and the building of this case was composed of a single floor, and the total floor area of this case was 42 square meters, and the medical institution of this case was 1,038.9 square meters; ③ The building of this case was constructed as an affiliated building of the instant medical institution; ③ although the building of this case was installed separately from the entrance of the instant medical institution, the building of this case was located within a distance of about 5 meters from the entrance of the instant medical institution, but the building of this case was installed as a slope or a stairs, and the building of this case was closely related to the building of this case to the instant medical institution and the building of this case as the owner of the building of this case. ④ The building of this case was located within the premises of the instant medical institution or the building of this case, and there was no possibility for the Plaintiff to be an independent building of the instant medical institution and the building of this case.

Therefore, the plaintiff's assertion to the effect that the building of this case falls under Article 20 (5) 2 of the Pharmaceutical Affairs Act and is contrary thereto is without merit.

C. Whether the establishment of the above pharmacy falls under Article 20 (5) 3 of the Pharmaceutical Affairs Act

1) The plaintiff's assertion

The building site of this case does not have previously been used as an exclusive parking lot for the medical institution of this case, and the building site of this case and the medical institution of this case were subdivided from the Gyeongnam-gun ( Address 5 omitted) on April 16, 1964, prior to the establishment of the medical institution of this case, and the Plaintiff did not have any personal relationship with the operator of the medical institution of this case. Therefore, it is difficult to view that the Plaintiff’s establishment of a pharmacy in this case by dividing, altering or repairing part of the facilities or the site of the medical institution of this case constitutes the establishment of a pharmacy.

2) Determination

In order to efficiently carry out a pharmaceutical medicine business, there is a very high need to prevent collusion between a medical institution and a pharmacy. In particular, even if a pharmacy exists in a medical institution or is closely related to a place, even if a pharmacy is separated from the ownership and management aspect, economic benefits arising from the exclusive prescription of a specific medical institution is large, and thus, it is highly likely that a pharmacy and a medical institution may independently engage in collusion between a pharmacy and a specific medical institution. On the other hand, it is very difficult to detect specific collusion between a pharmacy and a general administrative supervision. Considering this, the purpose of Article 20(5)3 of the Pharmaceutical Affairs Act is to fundamentally prevent collusion between a medical institution and a pharmacy by preventing the establishment of a pharmacy at a certain place (see Constitutional Court Order 2001Hun-Ma70, 2003Hun-Ba11, Oct. 30, 2003).

As seen earlier, the instant building is located on the ground, which is the site of the instant medical institution, and uses the same site as the instant medical institution. Therefore, it is reasonable to deem that the instant building constitutes part of the facilities or the site of the instant medical institution. If a pharmacy is established in the instant building, it is obvious that the said pharmacy will be operated as an exclusive facility for the patients who visited the instant medical institution. Accordingly, the purpose of the said provision, which aims to prevent collusion between a pharmacy and a medical institution, will be reversed.

Therefore, the Plaintiff’s application for change of the registered matters of the instant medical institution is to establish a pharmacy by dividing or changing the facilities or site of the instant medical institution, and it falls under Article 20(5)3 of the Pharmaceutical Affairs Act, and the Plaintiff’s assertion contrary thereto is without merit.

D. Whether there exists an exclusive passage under Article 20(5)4 of the Pharmaceutical Affairs Act between the building and the medical institution of this case

1) The plaintiff's assertion

The stairs from the building of this case to the medical institution of this case are the convenience facilities that medical institutions are obligated to install for the people who have difficulty in driving, such as the disabled and the aged, and where the above slope stairs are installed in the opposite part of the building, the above slope stairs are installed inevitably in the direction of the building of this case due to the risk of traffic accidents due to the vehicle using the parking lot located immediately next to the building of this case. Moreover, the users of the medical institution of this case can enter the medical institution of this case using the entrance installed in the entrance stairs or parking lot of the medical institution of this case, not the above slope.

Therefore, the instant slope does not constitute an exclusive passage regulated by the Pharmaceutical Affairs Act.

2) Determination

As seen earlier, the Defendant issued the instant disposition on the ground that there was an exclusive passage under Article 20(5)4 of the Pharmaceutical Affairs Act between the instant building and the instant medical institution. According to the above grounds for disposition, it is reasonable to interpret that the Defendant did not limit the exclusive passage to the instant slope, and that the entire space between the instant building and the instant medical institution (hereinafter “instant space”) is regarded as an exclusive passage. Thus, as such, whether the entire space including the said slope asserted by the Plaintiff corresponds to the exclusive passage.

Article 20(5)4 of the Pharmaceutical Affairs Act provides that “If a pharmacy has a passage, such as an exclusive corridor, stairs, elevator, or footbridge, or a passage between a medical institution and a pharmacy is installed or installed, the establishment of a pharmacy shall not be registered.” The legislative intent of restricting the establishment of a pharmacy is to impose an obligation to prepare out-of-patients of a medical institution and prevent collusion between medical institutions and a pharmacy in order to ensure the early establishment and effective effectiveness of the medicine distribution business system established for the public health. However, the foregoing provision restricting establishment of a pharmacy is not permissible beyond the reasonable meaning of the language in that it restricts freedom of business guaranteed by the Constitution and the exercise of property rights (see Supreme Court Decision 2009Du4265, Jun. 11, 2009). However, the phrase “exclusive use” as used in the above provision refers to only a person who uses only a specific corridor, and only a person who uses it for the purpose of Article 5(2)4 of the Pharmaceutical Affairs Act.”

The building of this case and the medical institution of this case are constructed at a distance of about three meters within the same site, and the latter part of the building of this case is installed in the passage between the building of this case and the medical institution of this case, and the fact that a slope and a stairs are installed to enter the medical institution of this case is as seen earlier, but on the other hand, the space of this case is open without separation from the outside, and the person visiting the medical institution of this case can access the building of this case through the space of this case at his own discretion, and it is possible to move to the road of this case. In light of this, it is difficult to see that only medical institution, pharmacy user, employee, etc. and the person using it are using the space of this case, and therefore, it cannot be viewed that the space of this case constitutes the exclusive passage between the building of this case and the medical institution of this case. Therefore, it is unlawful including the ground for disposition of this case.

E. Whether the principle of equality is violated

1) The plaintiff's assertion

In the case of other pharmacies located in the vicinity of the instant land, the instant disposition is in violation of the principle of equality, and is in violation of the principle of equality, thereby abusing and abusing discretionary authority. The instant disposition is deemed to be a deviation from and abuse of discretionary authority, where the instant disposition is made in violation of Article 20(5)2 through 4 of the Pharmaceutical Affairs Act, and is a violation of the principle of equality.

2) Determination

According to the evidence Nos. 11-2 through 4’s images, since there is a considerable difference from the case of this case in spatial and functional independence between a building and a medical institution where the above pharmacy is located, it is difficult to readily conclude that the disposition of this case is in violation of the principle of equality.

In addition, when an administrative disposition is taken, the principle of equality should be applied to the administrative agency, but if the legal situation is not the same, or if the existing administrative practice is not legitimate and reasonable, the administrative agency is not bound by the existing disposition. Article 20 (5) 2 through 4 of the Pharmaceutical Affairs Act is a binding act, and if the requirements for change of pharmacy registration are not satisfied, the defendant shall not return the report of change.

Therefore, even if an administrative agency accepted the registration of pharmacy establishment in relation to a case similar to this case as alleged by the Plaintiff, the disposition of this case, which rejected the registration of pharmacy establishment without satisfying the requirements for modification of the registered matters of the legitimate pharmacy, cannot be deemed to violate the principle of equality. Therefore, the Plaintiff’s assertion on this part

F. Sub-committee

Therefore, the part concerning the exclusive passage among the grounds for the disposition of this case as stated by the defendant is not legitimate, but the legitimacy of the disposition of this case is recognized as the remaining grounds for the disposition of this case. Thus, there is no error of law in the disposition of this case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Maritime Shelf (Presiding Judge)