[1] The meaning of "advertisement" under Article 63 (1) of the Pharmaceutical Affairs Act, and whether the advertisement by article type is included in this (affirmative)

[2] The case reversing the court below's decision that the contents inserted in the newspaper cannot be viewed as an advertisement in the form of an article

[1] Article 63 (1) of the Pharmaceutical Affairs Act prohibits advertising by false or exaggerated means as to the name, manufacturing method, efficacy, or performance of drugs, non-pharmaceutical drugs, or medical appliances under Article 63 (1) of the same Act; Article 63 (3) of the same Act prohibits advertisements as to the efficacy or performance of drugs, etc.; Article 63 (5) of the same Act prohibits the name, manufacturing method, efficacy, or performance of drugs, etc. prior to the permission or reporting; and Article 63 (5) of the same Act prohibits advertisements as to the name, manufacturing method, efficacy, or performance of drugs, etc.; although the contents of such regulations and drugs, etc. are directly connected to the national health and health, it is difficult for the people to easily determine their validity and safety; and if appropriate information is not provided, it is necessary to regulate advertisements of drugs, etc.; in light of the above, "advertisement" as referred to in Article 63 (1) of the same Act means all means widely known to the general public.

[2] The case holding that the contents to be inserted in the newspaper constitute an exaggerated advertisement beyond the scope of advertisement, which is an advertisement borrowing the form of an article

[1] Article 63 (1), (3), and (5) of the Pharmaceutical Affairs Act / [2] Article 63 (1) and (6) of the Pharmaceutical Affairs Act, Article 79 (1) 1 of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by Ordinance of the Ministry of Health and Welfare No. 145 of March 3, 200)

Defendant 1 and one other

Defendant 2 and Prosecutor

Law Firm Scarin Law, Attorney Kim Hong-sub

Seoul District Court Decision 2001No774 delivered on September 18, 2001

The part of the judgment of the court below as to Defendant 1 and Defendant 2 shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul District Court.

1. Prosecutor's grounds of appeal are examined.

A. Summary of the facts charged

On June 5, 1999, the Defendants conspired in collusion and published an advertisement that “The manager of the Center shall have the effect of getting himself, herself, external lines, e-mail, etc. from the climatic force by releasing e-mail at the same time, and thereby making it an exaggerated advertisement on the nivers' products.”

B. Summary of the judgment below

The court below acquitted the above facts charged on the following grounds that it constitutes a case where there is no proof of crime.

The evidence as to the above facts charged results of the statement of Yu Jae-gu and the copy of the article of the article of the Korean daily newspaper and the fact-finding about the Korean daily newspaper in the court below. First of all, the statement of Yu Jae-gu is merely an assertion that the contents of the above Korean daily newspaper are advertising, and thus it cannot be concluded that the contents of the above contents are advertising.

On June 5, 199, Japan's 12 pages are economic areas, they are not specialized in the advertisement, such as full-scale advertisement, etc., and mainly contain the situation of the industry. The contents of the Nan Center Span Center Spanx (hereinafter referred to as "medical appliances of this case") are treated as a stuff engineer at the bottom under the title of "corporate file". The above "corporate file" includes matters concerning events, objectives achievement, introduction of goods, or inducement of foreign capital. The medical appliances of this case contain "the non-indicted corporation receives the above materials from the newspaper to make the above 4-day newspaper report, and the non-indicted corporation receives materials from the newspaper to make the above 4-day newspaper report, and it is worth making the above - one-day newspaper report's request. The above - the non-indicted corporation's - one-day newspaper's - two - two - two - one - two - two - two - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one- one- one - one- one- one- one- one - one- one- one- one...

However, in light of the fact that the contents of the "corporate file" including the article of this case include not only the publication of goods, but also the publication of various events, goals achievement, and inducement of foreign capital, it is difficult to see that the above column is an advertisement column, and the medical appliances of this case were published since before the publication of the article, but also the publication of the medical appliances of this case was commenced at the time of publication, etc., it is difficult to see that the above article was published as advertisement, and even if the defendants sent materials to the newspaper company for the purpose of advertisement and provided some explanation in response to the identity of the reporter, it cannot be deemed as advertisement, and there is no other evidence.

C. Judgment of the Supreme Court

However, this decision of the court below is hard to accept in the following respects.

Article 63 of the Pharmaceutical Affairs Act prohibits advertisements of the names, manufacturing methods, efficacy, or performance of drugs, non-pharmaceuticals, medical appliances, or medical appliances (hereinafter referred to as "drugs, etc.") under Article 63(1), false or exaggerated advertisements of the names, manufacturing methods, efficacy, or performance of drugs, etc. under Article 63(3), advertisements by cancer articles, photographs, designs, and other visual methods concerning the efficacy or performance of drugs, etc. under Article 63(5), and the names, manufacturing methods, efficacy, or performance of drugs, etc. prior to the permission or reporting under Article 63(5). In light of the fact that the contents of such regulations and medicines, etc. are directly connected with national health and health, it is difficult for the people to easily determine their effectiveness and safety, and if proper information is not provided, it is necessary to regulate advertisements of drugs, etc., "advertisement" under Article 63(1) of the above Act refers to all means widely known to the general public, and such advertisements also include advertisements in the form of articles.

According to the facts and records acknowledged by the court below as to this case, although the contents of the newspaper of this case were published in the "corporate file" column, which includes not the regular advertising column, but the events, target values, foreign capital inducement, and introduction of products, it is reasonable to see that the name, efficacy, or performance of the medical appliances of this case is widely known and the name, efficacy, or performance of the medical appliances of this case and the contact address of the non-indicted corporation is used as an advertisement of article. In addition, if the "corporate file" can be published only by sending materials to the newspaper company for the purpose of advertising upon the request of the company first from the company, and it is sufficient that the above newspaper company accepted them and published them. Furthermore, it is clear that the above contents of the newspaper of this case and the contents of the medical appliances of this case should not be viewed as "the name, efficacy, or performance, etc. of the product of this case" as stated in Article 63 (6) of the Pharmaceutical Affairs Act, and thus, it should not be viewed as "the content or efficacy of the article of this case."

Nevertheless, the court below erred by misapprehending the legal principle regarding "an excessive advertisement" under Article 63 (1) of the Pharmaceutical Affairs Act or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The prosecutor's ground of appeal assigning this error is with merit.

2. Defendant 2’s ground of appeal is examined.

According to the evidence duly examined and adopted by the court of first instance, Defendant 2 is justified in the decision of the court below that maintained the first instance court which found Defendant 2 guilty of the facts charged of an exaggerated advertisement as if the above medical appliances were effective for all diseases, and there is no error of law such as misconception of facts against the rules of evidence, as alleged in the grounds of appeal, in collusion with Defendant 1, the representative director of the above company, who held the position of the president of the non-indicted corporation and owned 50% of the above shares of the above non-indicted corporation, and found another advertisement about the medical appliances of this case. The contents of the facts charged are stated in the facts charged for the purpose of advertisement, regardless of whether they were actually purchased, and distributed them to the persons who found other advertisement about the medical appliances of this case for the purpose of advertisement, regardless of whether they were actually purchased.

3. Therefore, the part of the judgment of the court below against the defendants should be reversed, and the appeal by the defendant 2 is without merit, but the guilty part against the defendant 2 in the judgment of the court below should be sentenced to one punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act with the acquitted part. Thus, the part of the judgment of the court below against the defendant 2 shall be reversed together with the judgment of the court below, and this part of the case shall be remanded to the court below. It is so decided as per

Justices Park Jae- Jae (Presiding Justice)