[1] The standard for determining whether a punitive administrative disposition deviates from or abused the scope of discretion

[2] In a case where the criteria for a disciplinary administrative disposition are prescribed in the form of Ministerial Ordinance, the method of determining the legality of the disposition in accordance with such criteria

[3] The case holding that it is difficult to view that the disposition of penalty surcharge in lieu of business suspension under the former Pharmaceutical Affairs Act and the former Pharmaceutical Affairs Act and subordinate statutes is a deviation or abuse of discretionary power

[1] Whether a punitive administrative disposition deviates from or abused the scope of discretion by social norms shall be determined by comparing and balancing the degree of infringement of public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the violation, which is the reason for the disposition, the public interest to be achieved by the relevant disposition, and all relevant circumstances.

[2] Even if the criteria for a punitive administrative disposition are prescribed in the form of a Ordinance, it has no effect to externally bind citizens or courts since it is nothing more than setting the administrative agency's internal business rules, and whether such disposition is legitimate or not must be determined in accordance with the contents and purport of the relevant laws and regulations, not only the above disposition standards, but also the relevant disposition standards. Thus, it cannot be deemed legitimate immediately as it conforms to the above disposition standards. However, the above disposition standards do not in itself conform with the Constitution or laws, and unless there are reasonable grounds to believe that a punitive administrative disposition in accordance with the above disposition standards is considerably unfair in light of the contents and purport of the relevant laws and regulations, it shall not be determined that the disposition is beyond the scope of discretion or abuse discretionary power

[3] The case holding that it is difficult to view that the disposition of imposition of a penalty surcharge in lieu of 15 days of business suspension under Article 69 (1) 3 and (3) of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of Apr. 11, 2007) and Article 89 [Attachment 6] of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Health and Welfare No. 332 of Oct. 7, 2005) notified the 15 days of business suspension in accordance with the "standards for Administrative Disposition" and thereafter notified the 15 days of business suspension in accordance with Article 71-3 (1) and (2) of the same Act and Article 29 [Attachment 1-2] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20130 of Jun. 28, 2007)

[1] Articles 1 [General Administrative Disposition] and 27 of the Administrative Litigation Act / [2] Articles 1 [General Administrative Disposition] and 27 of the Administrative Litigation Act / [3] Articles 39 (see current Article 48), 69 (1) 3 (see current Article 76 (1) 3), 79 (3) (see current Article 76 (3)), 71-3 (see current Article 81), 29 [Attachment Table 1-2] of the former Enforcement Decree of the Pharmaceutical Affairs Act (Amended by Presidential Decree No. 20130, Jun. 28, 2007); Article 89 [Attachment Table 6] of the former Enforcement Rule of the Pharmaceutical Affairs Act (Amended by Act No. 832, Oct. 32, 2005)

[1] Supreme Court en banc Decision 2001Du7138 Decided February 5, 2002 (Gong2002Sang, 684) Supreme Court Decision 2005Du9910 Decided June 28, 2007 (Gong2007Ha, 1291) Decided July 19, 2007 / [2] Supreme Court en banc Decision 94Nu14148 Decided October 17, 1995 (Gong195Ha, 3544), Supreme Court Decision 96Nu573 Decided May 30, 197 (Gong197Ha, 1904), Supreme Court en banc Decision 2006Du16836 Decided June 22, 2006 (Gong163636 decided June 22, 2006)

Plaintiff (Attorney Park Jong-il, Counsel for the plaintiff-appellant)

The head of Yeonsu-gu Incheon Metropolitan City Public Health Center

Seoul High Court Decision 2006Nu10186 decided Feb. 15, 2007

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

The determination of whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be made by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition by objectively examining the content of the act of violation and the public interest achieved by the act of violation as the ground for the disposition (see, e.g., Supreme Court Decisions 2005Du9910, Jun. 28, 2007; 2006Du19297, Jul. 19, 2007; 2006Du19297, Jun. 19, 2007). In this case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ordinances, it is nothing more than that of the administrative agency’s internal rules for administrative affairs, and thus, it is not appropriate to determine whether the disposition is legitimate or not in accordance with the contents and purport of the relevant statutes, as well as the above criteria for disposition. However, it is not reasonable to determine that the above disposition conforms to the above criteria for disposition.

Comprehensively taking account of the adopted evidence, the lower court: (a) committed a violation of Article 39 of the former Pharmaceutical Affairs Act (wholly amended by Act No. 8365 of Apr. 11, 2007; hereinafter the same shall apply) by the Plaintiff, a pharmacy founder, by opening and selling the package of “mags”, which is a drug; and (b) found on Aug. 5, 2005 that the Defendant discovered such violation against the Plaintiff on Aug. 16, 200, Article 69(1)3 and (3) of the former Pharmaceutical Affairs Act; (c) Article 89 and [Attachment 6] of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by Ordinance of the Ministry of Health and Welfare No. 332 of Oct. 7, 2005; hereinafter the same shall apply); (c) notified the Plaintiff of the disposition of suspension of business pursuant to the “Criteria for Administrative Disposition”; and (d) revoked the disposition of suspension of business pursuant to Article 71-3(1) and (2) of the former Enforcement Decree of the Pharmaceutical Affairs Act [Attachment 5]

However, in light of the aforementioned legal principles and records, the judgment of the court below that the Defendant’s imposition of the penalty surcharge of this case on the premise of the suspension of business under the former Enforcement Rule of the Pharmaceutical Affairs Act is unlawful is difficult

As a matter of principle, Article 39 of the former Pharmaceutical Affairs Act prohibits the Plaintiff from voluntarily preparing medicines that are not according to prescriptions issued by doctors or dentists [the purpose of the provision is to prevent misuse and abuse of medicines that may arise when medicines are sold without explanation of efficacy or side effects, and thus, it is a provision directly related to the legislative purpose of the Pharmaceutical Affairs Act and the essence of the principle of medicine business prescribed by the Pharmaceutical Affairs Act. Meanwhile, the following circumstances revealed by the record that the Plaintiff’s “marbine” is relatively low side effects on the human body, and thus, it is difficult to view that the Plaintiff’s act of purchasing and selling medicines constitutes an act of violation of this case’s provision of the former Enforcement Decree [the above-mentioned provision of the Pharmaceutical Affairs Act’s provision of the same Act’s provision of the former Enforcement Decree’s provision of the same Act’s provision of the same Act’s provision of the same Act’s provision of the former Enforcement Rule’s provision of the same Act’s provision of the same Act’s provision of the former Enforcement Rule’s provision of the same Act’s provision of the same Act’s provision.

Therefore, the judgment of the court below ordering the revocation of the imposition of the penalty surcharge of this case is erroneous in the misapprehension of legal principles as to deviation and abuse of discretion of the punitive administrative disposition, which affected the conclusion of the judgment. The appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)