Defendant 1 and one other

Kim Jong-won

Attorney higher-ranking

Defendant 1 shall be punished by fine for negligence of KRW 3,00,000, and by fine of KRW 2,000,000, respectively.

In the event that the Defendants did not pay each of the above fines, the Defendants shall be confined in each of the labor site for a period of 50,000 won converted into one day.

To order the Defendants to pay an amount equivalent to the above fines.

The Defendants are not guilty of violation of each Medical Service Act.

On June 15, 2007, at the office of Nonindicted Co. 2 located in Dongdaemun-gu Seoul Metropolitan Government heading 1 Dong (hereinafter 5 omitted), the Defendants conspired to purchase from Nonindicted Co. 2 the amount of KRW 39,60,00 equivalent to the market price of KRW 162,716,40, and the amount of KRW 39,60,000, the market price of which is 39,600, and the amount of KRW 7,920,00,00 from the office of Nonindicted Co. 1, 207, for the purpose of giving the employees and their families of Nonindicted Co. 1, Ltd. at the office of Nonindicted Co. 2, Ltd. located in Dongdaemun-gu Seoul Metropolitan Government heading 1 Dong (hereinafter 5 omitted).

1. Defendants’ respective legal statements

1. Each prosecutor's protocol of interrogation of each prosecutor's suspect as to the Defendants and the suspect interrogation protocol as to Nonindicted 8

1. Each police suspect interrogation protocol against Nonindicted 15 and 16

1. The police statement of Nonindicted 10

1. Each report on investigation;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 93(1)7 of the Pharmaceutical Affairs Act, Article 44(1) of the same Act, Article 30 of the Criminal Act, the selection of each fine

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. The assertion;

A. The Defendants’ act does not constitute a sale under Article 44(1) of the Pharmaceutical Affairs Act, since they purchased drugs to deliver them to employees free of charge.

B. Even if the Defendants’ act constitutes a sale under Article 44(1) of the Pharmaceutical Affairs Act, it constitutes an act that does not violate the social rules, as it constitutes an act by issuing a prescription issued in the name of its employees for the purpose of responding to an emergency situation where contagious diseases are spreading. Thus, the illegality is excluded pursuant to Article 20 of the Criminal Act.

2. Determination

A. Whether the Defendants’ act constitutes “sale” under Article 44(1) of the Pharmaceutical Affairs Act

1) Whether the term “sale” under Article 44(1) of the Pharmaceutical Affairs Act includes “sale”

Article 2 Subparag. 1 of the Pharmaceutical Affairs Act explicitly provides that "sale (including presentation; hereinafter the same shall apply)" shall be defined in the concept of "pharmaceuticals" used in the Pharmaceutical Affairs Act. Article 2 Subparag. 1 of the same Act explicitly states that "sale" under the above definition provisions, including Article 44(1) of the Pharmaceutical Affairs Act, which is at issue in this case, includes "sale".

In this regard, the original Pharmaceutical Affairs Act, prior to the amendment by Act No. 1491 of Dec. 13, 1963, provides that “sale” and “use” respectively, without including “sale” in the definition of “sale” in a lump sum, but including “sale” and “use” in almost all individual provisions at the time. However, Article 25(1) of the former Pharmaceutical Affairs Act, which states that “sale shall not be deemed to fall under Article 44(1) of the current Pharmaceutical Affairs Act, stipulates only “sale” and Article 27 of the former Pharmaceutical Affairs Act, which excludes “sale, other than pharmaceutical affairs, shall not be sold or granted by subdividing drugs.” As such, it appears that “sale” and “sale shall not be deemed to be subject to regulation,” and thus, Article 27 of the former Pharmaceutical Affairs Act, which is amended by Act No. 12131, Dec. 13, 196.

However, in light of such amendments, the fact that the legislators are excluded from granting in cases of Article 25(1) of the former Pharmaceutical Affairs Act, taking into account only the fact that the said Act contains “sale” and “use” in almost all parts of the said former Pharmaceutical Affairs Act, cannot be readily concluded that the said Act uniformly includes “sale” on the grounds of convenience, and that a series of errors in the legislative process has been committed. In principle, since the former Pharmaceutical Affairs Act was amended as above, it is clearly revealed that the term “sale” was included in “sale” as prescribed by the Pharmaceutical Affairs Act, it is reasonable to view that the legislators had amended the Act in mind in light of such circumstances.

This may be recognized even if it is considered that the term “sale” under Article 44(1) of the Pharmaceutical Affairs Act includes “sale”, and there are reasonable grounds and purport to deem that the term “sale” includes “sale.” The purpose of this Article is to ensure that only a medicine is distributed in Korea through an expert, who is a pharmacy founder, and thus, it cannot be said that the term “sale” is a case of “sale,” which is not a “sale.”

2) Interpretation of the meaning of “use” under Article 44(1) of the Pharmaceutical Affairs Act

Of course, in a case where the whole form of “use” is deemed to be included in the “sale” under Article 44(1) of the Pharmaceutical Affairs Act, the same act as the delivery of drugs kept in the House constitutes an element of a crime under Article 44(1) may be somewhat unreasonable result. However, the term “sale” under Article 44(1) of the Pharmaceutical Affairs Act refers to the transfer of drugs to an unspecified or many unspecified persons for consideration (see Supreme Court Decision 2001Do2479, Mar. 28, 2003). As such, the term “sale” under Article 44(1) of the same Act refers to the transfer of drugs held in the House to an unspecified or many unspecified persons for free in response thereto. As long as the meaning of “use” is interpreted as above, there is no particular unreasonable result (in this regard, the Defendants and their defense counsel mentioned the above Supreme Court decisions, and thus, it does not include “sale by agreement” as to “sale by agreement,” and it does not include “sale by agreement” as to “sale by agreement.

Meanwhile, since it is clear that the “use” under Article 44(1) of the Pharmaceutical Affairs Act does not require that it be for-profit purposes, and furthermore, it does not require that it should be continued in order to establish a violation of the same Article.

3) Sub-decisions

Even if the Defendants acquired the instant medicine with the intent to provide it to employees free of charge, it constitutes 494 (except for the defendants and the non-indicted 4, 11, 490 persons). Thus, this constitutes a case where the Defendants and the defense counsel acquired it for the purpose of selling the medicine under Article 44(1) of the Pharmaceutical Affairs Act. Accordingly, the Defendants and the defense counsel’s claim as stated in Section 1-A (a) is not accepted (related to the pharmaceutical products as indicated in the judgment, which include the amount expected to be delivered to the Defendants and the non-indicted 4, and 11, but as a result, it should not be separately determined because the part on which the purchase was made appears to be smaller than the prescription issued).

B. Whether the act constitutes a justifiable act

As mentioned above, it can be seen that there exists sufficient and reasonable legislative reason or purpose to view the “sale” under Article 44(1) of the Pharmaceutical Affairs Act as being included in the “sale.” In such a case, the concept of “use” should be limited to granting free of charge to an unspecified person or to granting free of charge to an unspecified person. As such, it can be seen that a large number of acts that can be ordinarily considered as acts that do not go against social norms have taken place in the stage of determining whether the act constitutes a constituent element. Therefore, insofar as the existence of a certain element is recognized, there should be special circumstances to deem that the grounds for the elimination of illegality exist

However, it is reasonable to view that it does not go beyond the scope of the act scheduled to regulate under Article 44(1) of the Pharmaceutical Affairs Act, since it is a circumstance in which the Defendants and their defense counsel asserted the illegality in this case, the arguments in Article 1(b) of the Defendants and their defense counsel cannot be accepted.

1. Summary of the facts charged against the Defendants in violation of each Medical Service Act

On June 12, 2007, the Defendants: (a) at Nonindicted 9 members of the Mapo-gu Seoul Metropolitan Council (hereinafter omitted); (b) through Nonindicted 4, Nonindicted 4, an employee in charge of the business of Nonindicted Company 1, the Defendant sent to Nonindicted 8 a list of 100 employees of Nonindicted Company 1; (c) Nonindicted 8, without directly diagnosing the employees indicated on the list, prepared a prescription for prescribing safluor and sagincquerels to the said employees; and (d) issued a prescription for Nonindicted 4 to Nonindicted 3,5,6,7,78 by the same method; and (e) issued a prescription for Nonindicted 494 employees of Nonindicted Company 1 without directly diagnosing the employees listed on the list; and (e) issued it to Nonindicted 4; and (e) issued it to Nonindicted 2; and (e) Defendant 2 to Defendant 1.

2. Determination

A person who actually received a prescription and delivery of the decision is Nonindicted Co. 4 and 11 (hereinafter “Nonindicted Co. 4, etc.”) of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 4, etc.”), and the Defendants were processed only by Nonindicted Co. 4, etc., and there is no doubt about the decision. If Nonindicted Co. 4, etc. is punished, the Defendants who processed them may be punished as the accomplice of Nonindicted Co. 4, etc., but if the elements of the crime are denied with respect to Nonindicted Co. 4, etc., the Defendants who processed them may be punished as the accomplice of Nonindicted Co. 4.

A. Determination as to the assertion that there is no value of punishment

The defendants and defense counsel asserts that the defendants' actions are not worth punishing because they have stored drugs in an emergency situation where contagious diseases are spreading, and they have been done to divide them free of charge to employees.

In addition, considering the purport of the main sentence of Article 17(1) of the Medical Service Act, it may be considered that ① when a doctor who has not directly conducted a medical examination issues a prescription, etc. based on inaccurate information is likely to issue inaccurate prescriptions, etc. based on the function of proving prescriptions, etc. ② there is a high need to ensure the accuracy and objectivity thereof; ③ the fact that a prescription, etc. issued without direct medical examination is not likely to be abused for other purposes; ③ the fact that a pharmacy operator prescribed and sells medicines, etc. in fact may bring about an intention to issue a prescription only when the pharmacy operator prescribes and sells medicines; ④ In addition, the Defendants’ assertion that a limited resource (in this case, the limitation nature of the medicines as indicated in the judgment also becomes known even in the case of the Defendants’ assertion that the medicines were stored in preparation for the large prevalence of the early childhood sense) are used in a way that maximizes their utility as a whole, and thus, the aforementioned provision can be considered as one of the above-mentioned regulations. In fact, if new and new medicines were stored in a way that can be predicted for each disease prevention.

In light of the purport of the main sentence of Article 17(1) of the Medical Service Act, whether to punish the Defendants’ acts is a matter of legislative policy and cannot be viewed as having no value of punishment.

B. Interpretation of “the case of delivery to a patient” under the main sentence of Article 17(1) of the Medical Service Act

1) Issues

The main text of Article 17(1) of the Medical Service Act provides that “A prescription, etc. shall not be prepared and issued to a patient without a doctor engaged in medical service, who directly conducted a medical examination,” and stipulates that “a prescription, etc. shall be given to a patient”

Where a person to whom a medical certificate, prescription, etc. has been issued by a doctor (hereinafter referred to as "issued") and a nominal owner of a medical certificate, prescription, etc. (hereinafter referred to as "title holder") are the same, there is no room for doubt as that the beneficiary and the nominal owner are patients. However, if the nominal owner are different from the issuer and the nominal owner, a question arises as to whether it can be deemed that the delivery to the

2) Determination

A) Examining the process of amendment under the main text of Article 17(1) of the Medical Service Act, the first Medical Service Act did not limit the subject of issuance of a medical certificate, etc. by stipulating that “before amendment by Act No. 6020, Sept. 7, 1999, engaged in medical service and deliver a medical certificate, etc.” (the main text of Article 18(1)) provides that “A doctor, etc. shall prepare and issue a medical prescription to a patient if deemed necessary to administer medicine” under Article 18-2(1) of the same Act, but no change was made in the main text of Article 18(1). However, the first Medical Service Act was amended by Act No. 6686, Mar. 30, 200; Article 18(1) provides that “The first medical doctor, etc. shall prepare and issue a medical prescription to a patient with a specific intention not to perform medical treatment; (2) the first medical prescription was amended by Act No. 1860, Oct. 7, 2002.

In light of the above amendment process, insofar as a doctor did not directly conduct a medical examination before the amendment by Act No. 6686 of March 30, 2002, the Medical Service Act was subject to regulation even if it was delivered to anyone. The Medical Service Act was amended by Act No. 6686 of March 30, 2002 and limited to “patients” and delivered to a person who is not “patients”, the subject of regulation is not subject to regulation. Accordingly, the following is more illegal in cases where the doctor who did not directly examine the patient delivers a medical certificate, etc. to the patient and the patient is delivered to another person than the patient. However, in the past, there is also a question as to whether the legislators decided to regulate all cases. However, the Medical Service Act was amended by Act No. 8067 of Oct. 27, 2006, and the patient’s spouse cannot be deemed to have been directly regulated by the patient and the patient’s spouse cannot be deemed to have become subject to regulation under Article 7(1) of the Medical Service Act.

B) In view of the foregoing clause (A), it is necessary to specify who is the “patient” subject to delivery in determining whether a person violates the main text of Article 17(1) of the Medical Service Act. In this regard, in a case where the recipient undergoes a medical examination by stealing another’s name and received a prescription from another’s name by using another’s name, the recipient under the medical examination shall be deemed the patient, and the same shall also apply to the case where the latter was aware of the same fact. If the recipient received a request from the nominal owner and explained the status of the nominal owner and received a prescription, he/she shall be deemed to be the patient under the nominal owner, and in this case, it may be deemed that the medical prescription was issued to the patient by issuing a prescription to the recipient who is a type of the nominal owner or an agent.

However, difficulties arise if the delivery agent finds a doctor without any contact with the nominal owner and issues a prescription from the doctor. However, if the nominal owner is deemed a patient, problems arise as to whether the prescription, etc. may be deemed to have been issued to the patient. The main text of Article 17(1) of the Medical Service Act provides that “the issuance of a prescription, etc. shall not be made and delivered to the patient.” However, the main text of Article 17(1) of the Medical Service Act provides that “the delivery means “the delivery of a prescription, etc.” and it is clear that the provision provides that “the delivery of a prescription, etc. to the patient” or “the delivery of a prescription, etc. to the patient” is subject to regulation at the stage of issuing “issuance” or “the delivery of the prescription, etc. to the patient” in accordance with the principle of no punishment without a law, and thus, it cannot be deemed that the delivery of a prescription to the patient has been made only when there is no problem between the nominal owner and the patient, and thus, it cannot be deemed that the delivery of the above provision has been made.

In order to avoid such difficulties, there may be interpretation that the delivery to the patient may be deemed to have been made to the patient, regardless of whether the recipient and the patient are the nominal owner, as long as the medical doctor knew that the delivery to the patient was made based only on the medical doctor’s (the doctor). However, in the case of a violation of the main sentence of Article 17(1) of the Medical Service Act, the term “delivery to the patient” constitutes an objective constituent element, and thus, it is difficult to deem that the delivery to the patient is objectively made solely on the ground that the medical doctor (the doctor) already determined the meaning of “patient” and “delivery” is known to have been made to the patient. In addition, taking advantage of the name of the recipient, the issuance to the medical doctor is deemed to have been made to have been made to the nominal owner, and thus, the relationship between the recipient and the nominal owner may be deemed to have been interrupted compared to the case where the recipient were the intent for the nominal owner. In such case, even inasmuch as the medical doctor (the doctor) knew that the delivery to the nominal owner was made.

In addition, there may be a different interpretation to regard the person to be delivered as the patient. However, in a case where the nominal owner, such as the medical certificate, dies as described in the above paragraph (a) above, the patient is the deceased person and the spouse, etc., and the subject of the delivery is contrary to the above interpretation. ② Whether there is any actual communication between the issuer and the nominal owner, and the patient is changed depending on the circumstances that are entirely irrelevant to the doctor. ③ Above all, the subject of the medical examination in the above case is the nominal owner who is expected to be delivered the drug in accordance with the medical certificate or prescription, and thus, if the doctor examines the nominal owner or the nominal owner of the patient, it would be impossible to examine the patient and deliver the prescription. On the other hand, even if the doctor gives the delivery, it is difficult to give the medical certificate and the meaning of Article 17 (1) of the Medical Service Act together with the medical certificate, etc., it is difficult to interpret the medical certificate as well as the medical certificate and it is difficult to consider the subject of the medical examination or the diagnosis other than the third person.

C. Review of the instant case

There is a prescription in the name of Nonindicted 4, etc. and a prescription in the name of his other employees, among the prescriptions issued in the judgment.

1) First of all, with respect to the medical prescription in the name of Nonindicted 4, etc., each of the charges of violation of the Medical Service Act is ultimately processed by the Defendants in collusion with the doctors, Nonindicted 4, etc., by issuing a prescription to Nonindicted 4, etc., the patient. However, the main sentence of Article 17(1) of the Medical Service Act regulates the act of issuing a prescription to the patient, while the act of issuing a prescription to the patient is anticipated to be on the other hand, the act of issuing a prescription to the patient without a direct medical examination and the act of receiving the prescription to the patient is in a relation of the opposite criminal intent, and the general provisions of the Criminal Act concerning the accomplice cannot be applied to the opposite criminal (see, e.g., Supreme Court Decision 2007Do6712, Oct. 25, 2007). As such, Nonindicted 4, etc., who actually received a medical prescription, cannot be a joint principal offender of the act of issuing the prescription to the doctor. Accordingly, the Defendants who were processed to Nonindicted 4, etc.

2) Next, according to the evidence duly adopted by this court concerning the prescription in the name of employees other than the non-indicted 4, etc., the presumption that each of the drugs in the judgment was administered to the employees in the case of the non-indicted 4, etc. was established at a certain degree, and the employees in the judgment were not aware of the preparation and issuance of the prescription in the judgment. However, in the above case, in the above case, the patient is deemed to be the employee who is the title holder of the prescription in the judgment, and the prescription in the judgment was not delivered to the employees in the judgment, and thus, the act of the doctors in the judgment cannot be deemed to have not reached the conclusion. The meaning of the law's text itself generally understood from the bill of law can only take precedence in punishment or the legislator's truth, etc., and it cannot be supplemented by legal interpretation [On the other hand, in the case of this case, the drugs in the judgment were not delivered to the employees in fact and were delivered to the non-indicted 1 corporation without the expiration of the prescription in the name of each employee in the judgment.

In addition, when interpreting that a prescription has been issued to the employees in this case, it would be deemed that the prescription was given to the employees of the holding company with the act of issuing a prescription to Nonindicted 4, etc., and such interpretation would be deemed to be contrary to the principle of no punishment without the law, in that there was no contact between the employees in the judgment and Nonindicted 4, etc., but such interpretation would be deemed to be contrary to the principle of no punishment without the law. However, even if excluding this, it would be the same as that of Nonindicted 4, etc. in fact as the employees in the judgment, who did not know of the fact that the prescription was given between Nonindicted 4, etc. and the doctors in the judgment with Nonindicted 4, etc., received the prescription in their own name. As such, it is reasonable to evaluate that Nonindicted 4, etc. still received the prescription from the employees in the position or position of the employees in which the decision was given, and thus, it does not constitute a co-principal of the issuing company in the judgment. In addition, it should be deemed that the delivery company is basically in the position or position of the beneficiary.

Furthermore, even if it is judged that non-indicted 4 et al. were given a prescription to non-indicted 4 et al. because they were not the employees of the judgment that they were the patients, even if it is judged that the non-indicted 4 et al. were given a prescription to the employees of the judgment that they were the patients, this would eventually be deemed to have processed both the doctors and the employees of the judgment. In principle, the doctors' actions regulated by the main sentence of Article 17 (1) of the Medical Service Act are expected to occur only when the patients request the delivery of a prescription without direct examination. In this case, the degree of the actions that the non-indicted 4 et al. were recognized to have been the patients, cannot be deemed to have exceeded the ordinary expected scope of request. Thus, in determining whether the violation of the main sentence of Article 17 (1) of the Medical Service Act is committed, it shall be deemed that the patients who were not subject to the penal provision was still processed (see Supreme Court Decision 87Do2451, Apr. 25, 1988).

3) For more reasons, the facts charged against the Defendants in violation of each Medical Service Act are deemed to have not been proven without any reasonable doubt, and thus, the court acquitted the Defendants pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Tae-Gyeong-Gyeong