2014Nu4611. Revocation of a disposition not to notify the establishment of a pharmacy

fixed**

Daegu Dong-gu

Attorney Kim Jong-il, Counsel for the plaintiff-appellant

Daegu Metropolitan City*****

Litigation Performers* *

Daegu District Court Decision 2013Guhap2244 Decided March 28, 2014

August 29, 2014

October 10, 2014

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of non-registration of the establishment of a pharmacy against the Plaintiff on August 8, 2013 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. On August 5, 2013, the Plaintiff, a pharmacist, filed an application for registration of the opening of a pharmacy (hereinafter referred to as “instant application”) with the name of “A pharmacy” on the part (A) of the attached Form No. 66. 05 meters in the part (hereinafter referred to as “A pharmacy”) among the first floor of the building of the 1st underground floor and the 7th floor above that of the 1st ground and the 7th floor above that of the 201st Seo-gu, Daegu-gu, 2013.

B. On August 8, 2013, the Defendant rejected the instant application (hereinafter referred to as the “instant disposition”) on the ground that the Plaintiff had a parliamentary, convenience store, and coffee store on the first floor of the instant building, but on the remaining first floor, the entire seven stories above the ground level constituted “a medical institution (B hospital)” under Article 20(5)2 of the Pharmaceutical Affairs Act where a pharmacy is to be established under Article 20(5)2 of the same Act as a medical institution.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1-1, 2-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant pharmacy is located in the south of the first floor of the instant building, adjacent to the other south of the width of 30 meters, and the entrance abutting on the south side road is the only passage to the instant pharmacy; the stairs and the elevator going up to the second floor of the medical institution (B Hospital) are located in the north-dong of the instant building; there is no way to access the instant pharmacy from the interior of the instant building to the instant pharmacy; the instant pharmacy and the instant medical institution (B Hospital) are divided into separate spaces; the instant pharmacy and the instant medical institution (B Hospital) users are not likely to be recognized as the instant pharmacy within or within the medical institution (B Hospital); and the Plaintiff is an independent entity separate from the operator of the medical institution (B Hospital). In full view of the foregoing, the place where the instant pharmacy is to be established is located within the “facilities or premises of the medical institution” under Article 20(5)2 of the Pharmaceutical Affairs Act.

However, the Defendant’s disposition of this case, which was based on the premise that the place where the instant pharmacy was to be established falls within the facility or premises of a medical institution, is unlawful.

B. Relevant statutes

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

(c) Fact of recognition;

1) The owner of the instant building is C (hereinafter referred to as "C"). The use of the instant building is 14.83 square meters, such as machine rooms, electricity rooms, and EV holes, and 1st class neighborhood living facilities (members) 585.62, 68.51 square meters, 24.04 m2, 36.56 m2, 743.56 m2, 36 m2, 773.56 m2, 76 m2, 764m26m2, 764m2, 764m2, and 17m2, 24m2, 274m2, 24m2, and 3m24m2, 24m2, and 7m24m2, of the instant medical facilities.

31. The Defendant’s medical institution (title: B hospital, specialized department: internal medicine, psychopathy, psychopathy, Boviathy, Evinathy, Evinathy, Evinathy, Evinathy, and home medicine) is operating B hospital with the scale of 7 to 289 sickbeds from the following 7: (a) medical specialist; (b) five medical specialists; (c) one medical specialist in home; (d) one medical specialist in alcohol addiction; (e) alcohol addiction; stress; apprehension; depression; (e) dementia; and (e) hospitalized and hospitalized treatment; and (e) patients with mental illness from the fourth to the sixth floor; and (e) patients with mental illness are operated as closed-patients with the first 4 to the fourth 6th floor; and (e) patients with mental illness by 100% in accordance with the Medical Service Act.

3) Meanwhile, from February 6, 2013 to February 6, 2013, the ChoE1, HuE2, and DoE3 concluded a report on the establishment of a medical institution (name: KRW 422m among the instant buildings: KRW 300 million, KRW 400 million, KRW 500,000,000 for monthly rent, and KRW 500,000 for monthly rent, and KRW 50,000,00 for monthly rent, from April 15, 2013 to April 14, 2018; and thereafter, on April 30, 2013, the medical institution (name: KRW 4 general medical department, internal medical department, and Japanese Youth) was in operation of the E-4 general medical institution.

4) From July 30, 2013 to July 30, 2013, the Plaintiff was scheduled to establish the instant pharmacy after setting the deposit amount of KRW 200 million and the term of lease from August 1, 2013 to July 31, 2015 on the part 66.05m of the attached drawing indication (A) of the first floor of the instant building.

5) The south side of the instant building is linked to the 6rd line road of a width of 30 meters, the 4rd line road of a width of 20 meters, the 4rd line road of a width of 20 meters, and the 4rd line road of a width of 4 meters, respectively. The part adjacent to the west side of the instant building is used as a parking lot.

6) On the north-dong part of the 1st floor of the instant building, there are elevators for access to B Hospital and entrance doors entering the 2nd floor stairs, and on the south part there are passages for access to the instant pharmacy, E4 comprehensive departments, convenience stores. There are entrance entrance doors of B hospital and passage for access to the instant pharmacy from the outside to the instant pharmacy.

7) On the other hand of the building of this case, the lower part of the outer wall of the building of this case and the upper part of the outer wall of the building of this case, the upper part of the building of this case and the second floor height of the entrance of the center, and the entrance of the entrance of the building of this case are affixed to B Hospital's signboard on the upper part of the road, and the lower part of the lower part of the outer wall of the building of this case and the second floor of the entrance of the center, and the height of the second floor of the wall of this case, the upper part of the wall of this case and the height of the second floor of the upper part of the upper part of the building of this case and the height of the second floor of the wall of the upper part of the building of this case

[Ground of recognition] A without dispute, Gap evidence 3 through 11, Gap evidence 32-1 through 11, Gap evidence 34, Eul evidence 35-1 through 4, Eul evidence 2-1, 2, Eul evidence 12, and 13, Eul evidence 12 and 13, Eul's witness stuffs of the first instance court * Part of testimony, party trial witness Kim**'s testimony, the purport of whole pleadings

(d) Determination:

1) Article 20(5)2 of the Pharmaceutical Affairs Act provides that a pharmacy shall not be registered for establishment if the place where a pharmacy is to be established is located within the facilities or premises of a medical institution. In determining whether a pharmacy constitutes "within the facilities or premises of a medical institution," which is prohibited from registration of establishment under the above provision, along with its literal meaning, the legislative intent of the above provision that requires a pharmacy to be installed in a spatial and functional independent place from a medical institution in order to impose an obligation to provide out-of-patients of a medical institution in accordance with the principles of pharmaceutical business should be taken into account (see Supreme Court Decisions 2002Du1095, Dec. 12, 2003; 203Du537, May 16, 2003; 2003Du20(5) of the Pharmaceutical Affairs Act, which restricts registration of the establishment of a pharmacy, is unreasonable to interpret that each of the reasons under Article 20(5) of the same Act, which constitutes grounds for restriction on the freedom of business and exercise of property rights guaranteed by the Constitution, and to 2016.

(1) ① The instant building is used by the building on the ground level 1, the 7th floor above the ground level 7th floor and the 2 to 7th floor above the entire building. On the 1st floor, there are other stores, such as the e4 comprehensive department, open set, the instant pharmacy, the coffee store, etc.

② The only way to enter the instant pharmacy is to pass through the entrance and exit door on the side of the south side and India. As such, the instant pharmacy’s entrance and exit door, stairs, and elevators, etc., installed in the front of the north-dong, as incidental facilities to the instant pharmacy, need not be used to enter the instant pharmacy. In addition, the instant pharmacy is not allowed to enter the instant hospital through the entrance and exit door on the north-dong side, and only after the passage of delivery, the entrance and exit of the instant pharmacy should be opened.

③ In addition to the signboards of B Hospital at the upper end of the instant building, it is possible to find out from any direction that there are two hospitals in the instant building, in addition to the signboards of B Hospital.

(4) A hospital is a major medical department with five medical specialists. In the case of mental health doctors, most of the pharmacists employed by B hospital are placed in the hospital. A hospital is a medical department with one medical specialist, but its average daily is being taken in the home department with one medical specialist.

3. It is only three persons, and even if the pharmacy of this case is established, it cannot play a role as the internal pharmacy of the hospital B.

⑤ As such, the structure and function of the instant building, the current status of the use and management of the instant pharmacy, the trade name of the instant pharmacy is clearly distinguishable from the “B Hospital” to the “A pharmacy,” and the first floor of the instant building, with the members of the E4 general tasks, etc., not only falls under the space separate from the B hospital, but also the medical institution users and general public do not seem to have any possibility of recognizing the instant pharmacy as the facility or premises of the instant hospital.

6. In addition, considering the difference between the instant pharmacy and the operator of the instant hospital, and considering the operational status of the instant hospital, the collusion between the instant hospital and the instant pharmacy, or the instant hospital could exercise their influence on the instant pharmacy.

7. The pharmacies and hospitals of the instant case, which have structural characteristics similar to the instant pharmacies and B hospitals, may be easily discovered in their surroundings. In particular, a considerable number of pharmacies may have a place where a pharmacy is established even if the entire building is a hospital.

3) Therefore, the instant disposition based on the premise that the Plaintiff’s instant application falls under Article 20(5)2 of the Pharmaceutical Affairs Act is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance which has different conclusions is unfair, so it is revoked and the disposition of this case is revoked, and it is so decided as per Disposition.

Judges of the presiding judge, public officials

Hack's Hack

Park Jong-dae

A person shall be appointed.

A person shall be appointed.