2019No629 Violation of the Pharmaceutical Affairs Act

A South 88. Symar

Defendant

Freeboard (Lawsuits) and Kim-hee (Public Trial)

Attorney*

Ulsan District Court Decision 2019 High Court Decision 271 Decided June 11, 2019

October 18, 2019

The part of the judgment of the court below against the defendant shall be reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the grounds for appeal;

The defendant, who obtained a pharmacist's license, sold drugs to the above pharmacy upon the request of B, which is the founder of the ○○ pharmacy, and therefore, despite being harmed by the pharmacist working for the pertinent pharmacy under Article 44 (1) of the Pharmaceutical Affairs Act, the judgment of the court below which found the defendant guilty is erroneous in misunderstanding of facts

2. Determination

A. Summary of the facts charged

The defendant is a person who operates a 'her pharmacy' in Yangsan-si* * 12-gil 12.

No person, other than a pharmacy founder or a pharmacist working for the relevant pharmacy, may sell or acquire drugs for the purpose of sale.

Nevertheless, the Defendant, around October 26, 2018: 08: 41, prepared and sold, respectively, approximately KRW 34,100, and KRW 7,00,00 as prescribed by the Medical Doctor D, to the patient who found the place at ○○ pharmacy * 10-1,000.

Accordingly, the Defendant sold drugs even though it is not a founder of ○○ pharmacy or a pharmacist working for ○○ pharmacy.

B. The judgment of the court below

The lower court found the Defendant guilty on the ground that: (a) comprehensively taking account of the prior meaning of “work” as well as the perspective of public health and sanitation, the following: (b) whether a pharmacist working for the relevant pharmacy falls under the category of a pharmacist working for the relevant pharmacy; (c) whether a pharmacist, other than a pharmacy founder, prepares and sells drugs at the relevant pharmacy; (d) the preparation of drugs and the period and frequency of sales; (e) whether a pharmacist, other than a pharmacy founder, opens another pharmacy; and (e) whether a pharmacist, other than a pharmacy founder, works for the relevant pharmacy; and (e) whether remuneration is paid, etc., within a temporary employment contract concluded between the pharmacy founder and the relevant pharmacist; and (e) whether a contract for operating the pharmacy within a certain period of time to delegate the management and supervision by the pharmacy founder was concluded, and thus, it cannot be deemed that the instant case constitutes “○○○○○○”’s charges, on the grounds that the Defendant and the relevant pharmacist do not constitute “○○○○○”.

C. Judgment of the court below

In full view of the following circumstances, it is reasonable to see that "a pharmacist working for the relevant pharmacy" under Article 44 of the Pharmaceutical Affairs Act means a pharmacist who prepares, sells, etc. drugs on behalf of a pharmacy founder. It is reasonable to see that the Defendant engaged in preparing and selling drugs in the status of a pharmacist working for the ○○ pharmacy for B, who is the founder of the ○○ pharmacy. Nevertheless, the judgment of the court below convicting the respondent of the above facts by misapprehending the legal principles as to mistake of facts or the Pharmaceutical Affairs Act, and the Defendant's assertion pointing this out is with merit.

① Article 20(1) of the Pharmaceutical Affairs Act provides that no person other than a pharmacist or herb pharmacist may establish a pharmacy, and Article 44(1) of the same Act provides that no person other than a pharmacy founder or a pharmacist or herb pharmacist working for the relevant pharmacy shall sell drugs. The purport of the above provision is to sell drugs, as the sale of drugs is likely to affect the national health, and thus it is inappropriate for the public to leave the sales of drugs to the public’s free will, and thus, to generally prohibit the sale of drugs, and to allow the sale of drugs by cancelling a general prohibition only to a pharmacist or herb pharmacist qualified through a certain test (see Supreme Court Decision 98Do1967, Oct. 9, 198). In other words, the above provision of the Pharmaceutical Affairs Act is to prevent the sale of drugs by an unqualified person other than a pharmacist or herb pharmacist.

② In addition, Article 21(2) of the Pharmaceutical Affairs Act provides that, in principle, where a pharmacy founder is unable to manage his/her pharmacy, he/she shall designate a pharmacist or herb pharmacist in lieu of a pharmacy and manage the pharmacy. Article 21(2) of the same Act also provides that a pharmacist qualified after undergoing a certain test manages the drugs, etc. supplied at a pharmacy, and prevents any side effect that may occur in the course of managing medicines, etc. by an unqualified person.

③ As above, the Pharmaceutical Affairs Act only provides for the duty to turn on a pharmacist who manages a pharmacy or who is designated by a person who is not a pharmacy founder as a person who is allowed to sell drugs, or a pharmacist who works for the pharmacy, in addition to the provisions of Article 21(3). In addition to the provisions of each subparagraph of Article 21(3), there is no specific provision for the method of designating a pharmacist who manages the pharmacy under Article 21(2) or the specific contents of the pharmaceutical who works for the relevant pharmacy under Article 44(1).

④ Considering the purport of Articles 21 and 44 of the Pharmaceutical Affairs Act, and the fact that Article 44 of the Pharmaceutical Affairs Act does not impose any particular restrictions on the detailed meaning or content of the "Pharmaceutical who works for the relevant pharmacy", it is reasonable to view that the "Pharmaceutical who works for the relevant pharmacy" refers to a pharmacist who works for the relevant pharmacy in charge of the preparation, sale, etc. of drugs for the relevant pharmacy founder, and it is difficult to view that the issue of whether the "Pharmaceutical who works for the relevant pharmacy" can be included in the "Pharmaceutical who works for the relevant pharmacy in accordance with the form, method, and content of labor contract, etc. of the pharmacist.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

[Grounds for another judgment]

The summary of the facts charged in the instant case is as indicated in Article 2-A. This constitutes a case where there is no proof of a crime for the same reason as seen in Article 2-3(c) of the Criminal Procedure Act, and thus, a judgment of innocence is rendered by the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of the Defendant is announced in accordance with Article 58(2) of the Criminal Act. It is so decided as per Disposition.

Judges Kim Jong-gu

Judges Kim Jong-sung

Judge Lee Il-il