[1] Whether the interpretation of Article 44(1) of the former Pharmaceutical Affairs Act stipulating that "no person other than a pharmacy founder shall sell or acquire drugs for sale" includes "sale" of drugs without compensation, violates the principle of no punishment without law (negative)

[2] The case affirming the court below's rejection of the assertion that the above act constitutes a violation of Article 44 (1) of the former Pharmaceutical Affairs Act, on the premise that the above act constitutes a violation of Article 44 (1) of the same Act, where the defendants, an executive officer of Gap corporation, were indicted on charges of violating the former Pharmaceutical Affairs Act by purchasing a large number of drugs for the purpose of awarding them to its employees and their families

[3] Whether the general provisions of the Criminal Act concerning accomplices can be applied to the "act of having issued a prescription" in relation to the act of preparing and issuing a prescription without directly examining the patient (negative)

[4] In a case where the Defendants, an executive officer of Gap corporation, were indicted of violating the former Medical Service Act and the violation of the same Act primarily on the ground that Eul et al. issued and issued a prescription to Gap company employees by failing to directly examine the employees and preparing a prescription to deliver the list of employees to Eul et al. through the doctor Eul et al., the case affirming the judgment below that the Defendants who processed Byung et al., who received the prescription, cannot be punished as a joint principal offender or a principal offender, as long as the Defendants cannot be punished as a joint principal offender or a principal offender for issuing the prescription to Eul et al.

[1] Article 2 subparagraph 1 (a) of the former Pharmaceutical Affairs Act (amended by Act No. 8643 of Oct. 17, 2007; hereinafter the same shall apply) defines the concept of "pharmaceuticals" used in Article 2 subparagraph 1 (a) of the former Pharmaceutical Affairs Act (amended by Act No. 8643 of Oct. 17, 2007; hereinafter the same shall apply) and explicitly provides that "sale" under the above definition provisions including Article 44 (1) of the former Pharmaceutical Affairs Act includes "sale". The former Pharmaceutical Affairs Act aims to contribute to the improvement of public health by prescribing necessary matters for the smooth implementation of pharmaceutical affairs (Article 1). The former Pharmaceutical Affairs Act aims to prevent the establishment of pharmacies other than pharmacists or herb pharmacists (Article 20 (1) of the former Pharmaceutical Affairs Act). Accordingly, it is difficult for a person who established the former Pharmaceutical Affairs Act to interpret drugs to prevent misuse or abuse of drugs through strict legislative purpose and to prevent sale or sale of drugs to many and unspecified persons without consideration. Thus, it is difficult for a person who established the former Pharmaceutical Affairs Act to be excluded from sale or transfer of drugs without consideration.

[2] In a case where the Defendants, an executive officer of Gap corporation, were indicted on charges of violating the former Pharmaceutical Affairs Act (amended by Act No. 8643 of Oct. 17, 2007) on the ground that they acquired 39,600 U.S. s., a prescription drug for the purpose of awarding to the employees of the company and their families, the case affirming the defendants' assertion that the above act constitutes a violation of Article 44 (1) of the same Act, on the premise that the above act constitutes a violation of Article 44 (1) of the same Act since it is included in the "sale", and thus, the court below rejected the defendants' assertion that the illegality should be avoided as a justifiable act not violating the

[3] The provisions of the general provisions of the Criminal Act concerning accomplices cannot be applied to the crime of provoking which requires the existence of an act in favor of two or more persons. The main text of Article 17(1) of the former Medical Service Act (amended by Act No. 8559 of July 27, 2007) provides that a person who violates the main text of Article 89 is punished, and there is no separate provision punishing the other party to whom a prescription was issued, in light of the fact that the provision of the general provisions of the Criminal Act concerning accomplices is not applicable to a person who has been issued a prescription as above.

[4] In a case where the Defendants, an executive officer of Gap corporation, were indicted on charges of violating the former Medical Service Act (amended by Act No. 8559 of Jul. 27, 2007; hereinafter "former Medical Service Act") and the former Medical Service Act (amended by Act No. 8559 of Jul. 27, 2007; hereinafter "former Medical Service Act"), on the grounds that Eul et al. issued a prescription to the employees of Eul and issued a prescription to the employees of Eul, etc. without directly diagnosing the employees, the case affirming the judgment below that the Defendants could not be punished against Byung et al., as long as the issuing of a prescription to Eul et al. was not a joint principal offender or a teacher for the issuing of a prescription to Byung et al., on the grounds that the general provisions of the Criminal Act concerning accomplices cannot be applied to those who received the prescription as above in light of the main text of Article 17(1) and Article 89 of the former Medical Service Act

[1] Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 1, 2 subparag. 1, 20(1), and 44(1) of the former Pharmaceutical Affairs Act (amended by Act No. 8643 of Oct. 17, 2007) / [2] Articles 20 and 30 of the Criminal Act; Articles 44(1) and 93(1)7 of the former Pharmaceutical Affairs Act (amended by Act No. 8643 of Oct. 17, 2007); Articles 30, 31, and 32 of the Criminal Act; Articles 17(1) and 89 of the former Medical Service Act (amended by Act No. 859 of Jul. 27, 2007); Article 30(1) of the Criminal Act (amended by Act No. 8643 of Oct. 17, 2007); Article 38(1) and (2)7) of the former Medical Service Act / [4]

[3] Supreme Court Decision 2007Do6712 Decided October 25, 2007 (Gong2007Ha, 1970), Supreme Court Decision 2009Do544 Decided June 23, 2009, Supreme Court Decision 2009Do3642 Decided April 28, 201 (Gong201Sang, 1212)

Defendant 1 and one other

Defendants and Prosecutor

Attorney Noh Jeong-sik et al.

Seoul Central District Court Decision 2010No3921 Decided May 12, 2011

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, in the interpretation of a penal provision, a systematic and logical interpretation method that clearly expresses the logical meaning of the provision in accordance with the systematic relationship that takes into account the legislative purpose and purpose of the provision within the meaning of the possible language and text is for the interpretation of the provision most accessible to the essential contents of the provision, and in conformity with the principle of no punishment without law (see, e.g., Supreme Court Decisions 2002Do2363, Jan. 10, 2003; 2007Do2162, Jun. 14, 2007).

Article 44(1) of the former Pharmaceutical Affairs Act (amended by Act No. 8643, Oct. 17, 2007; hereinafter “former Pharmaceutical Affairs Act”) provides that no person, other than pharmacy founders, may sell or acquire drugs for the purpose of sale. Article 2 subparag. 1 of the former Pharmaceutical Affairs Act defines the concept of “pharmaceutical” used in the Pharmaceutical Affairs Act, and stipulates that “sale (including granting; hereinafter the same shall apply)” includes “sale” under Article 44(1) of the former Pharmaceutical Affairs Act, including Article 44(1) of the former Pharmaceutical Affairs Act. The former Pharmaceutical Affairs Act aims to contribute to improving the public health by prescribing necessary matters concerning pharmaceutical affairs, thereby preventing the establishment of a pharmacy for the purpose of sale or acquisition of drugs for the purpose of sale (Article 1); the legislative purpose of Article 20(1) of the former Pharmaceutical Affairs Act is to prevent the sale of drugs to many and unspecified persons without consideration if it is difficult for a person, who has established the former Pharmaceutical Affairs Act, from sale or abuse of drugs for the purpose of sale without consideration (Article 4).

In addition, it is necessary to separately consider and determine whether certain act constitutes a legitimate act that does not contravene social norms, and thus, it should be determined individually under specific circumstances. Thus, to recognize such legitimate act, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementary nature that there is no other means or method than the act (see Supreme Court Decisions 2002Do5077, Dec. 26, 2002; 2006Do9307, Mar. 29, 2007, etc.).

In light of the above legal principles and records, the court below is just in rejecting the defendants' assertion that the defendants' above acts constitute a violation of Article 44 (1) of the former Pharmaceutical Affairs Act, on the grounds as stated in its reasoning, on the premise that the defendants' act of purchasing and acquiring prescription drugs from non-indicted 1 corporation's employees and their family members for the purpose of giving them constitutes a violation of Article 44 (1) of the former Pharmaceutical Affairs Act, and there is no error in the misapprehension of legal principles as to the interpretation of Article 44 (1) of the former Pharmaceutical Affairs Act and legitimate acts.

2. As to the Prosecutor’s Grounds of Appeal

The provisions of the general provisions of the Criminal Act concerning accomplices cannot be applied to a crime of provoking which requires the existence of two or more acts opposite to one another (see Supreme Court Decision 2007Do6712, Oct. 25, 2007, etc.).

According to the facts acknowledged by the court below, the act of preparing a prescription without directly examining the patient and delivering the prescription to Nonindicted 3, etc. to Nonindicted 4, etc., and the act of receiving the prescription from Nonindicted 3, etc., by the above Nonindicted 4, etc., are in a provoking relationship. The main text of Article 17(1) of the former Medical Service Act (amended by Act No. 8559 of Jul. 27, 2007) provides that the medical doctor shall not engage in the medical business and directly examine the patient, nor deliver the prescription to the patient, etc., and Article 89 of the former Medical Service Act provides that the person who violates the main text of the above provision shall be punished, and there is no separate provision punishing the other party to whom the prescription was issued, it is reasonable to view that the provision of the general provisions of the Criminal Act

As stated in its reasoning, the lower court’s determination that the Defendants who processed Nonindicted 4, etc. to Nonindicted 4, etc. can not be punished as a joint principal offender or a teacher for the act of issuing prescriptions by Nonindicted 3, etc. is justifiable as it is in accordance with the aforementioned legal doctrine. In so doing, the lower court did not err by misapprehending the legal doctrine as to the establishment of an accomplice in a violation of Article 17

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)