Defendant 1 and three others

Defendant 1 and two others and the Prosecutor (with respect to all the defendants)

Lee Dong-dong (prosecutions) and a prosecutor’s office (public trial)

Law Firm Urban, et al.

Seoul Western District Court Decision 2016Gohap446 Decided May 17, 2017

Of the judgment of the court below, the parts on Defendant 2 (board: Defendant 1), Defendant 3 (board: Defendant 2), and Defendant 4 shall be reversed, respectively.

Defendant 2 shall be punished by imprisonment for six months, by a fine of twenty thousand won, and by a fine of ten thousand won, and by a fine of ten thousand won.

When Defendant 3 and Defendant 4 fail to pay each of the above fines, each of the above Defendants shall be confined in a workhouse for a period calculated by converting KRW 100,000 into one day.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

To order the provisional payment of an amount equivalent to the above fines against Defendant 3 and Defendant 4.

The appeal filed against Defendant 1 (the Nonindicted Party: the Prosecutor) and Defendant 1 by the Prosecutor is dismissed, respectively.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts and misapprehension of legal principles

The defendant produced Dam herb drugs upon the order of the defendant, and only produced Damb herb drugs to customers whose body does not meet the body of Mambrate through consultation with the herb pharmacist, and made an additional mixing of Damb herb drugs with Dozyne and Mambium. The defendant's act is merely preparing Damb herb drugs, and it does not constitute a manufacturing under Article 3 (1) of the Act on the Control of Public Health Crimes.

The sales proceeds of Daar herb drugs, recognized by the court below, include the sum of KRW 302,51,000,000, including the sales proceeds of Daar herb drugs, red ginseng, and light survey expenses, which must be deducted.

2) Unreasonable sentencing

The punishment sentenced by the court below (a year and six months of imprisonment, a fine of 6.34 million won, etc.) is too unreasonable.

B. Defendants 3 and 4

The punishment sentenced by the court below (Defendant 3: fine of 10 million won, etc., Defendant 4: fine of 5 million won, etc.) is too unreasonable.

(c) Prosecutors;

The punishment sentenced by the court below to the defendants (defendant 2: fine of 10 million won, etc.) is too unhued and unfair.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 1

1) Whether it constitutes a manufacture

The defendant argued to the same effect as this part of the argument in the lower court, and the lower court, upon its detailed statement of decision, acknowledged that the defendant manufactured the same, instead of preparing Daart herb drugs.

Examining the reasoning of the judgment below in comparison with the evidence, the judgment of the court below is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles, and this part

(ii)the amount of sales proceeds from oriental medicine;

The Defendant asserted the same purport as this part of the assertion in the lower court, and the lower court, in its detailed statement, recognized that the sales proceeds of multilateral herb drugs manufactured and sold by the Defendant was KRW 6,339,05,000, and rejected the Defendant’s assertion.

In addition to the following circumstances, the lower court’s determination is justifiable in light of the following circumstances: (a) Defendant 3 stated in the investigative agency that “the multiple herb drugs are between KRW 220,000 and KRW 300,000,000; and (b) the one who introduces them are at a discount rate; and (c) Defendant 4 and Defendant 2 also stated that the amount deposited exceeds KRW 100,000,00 is the sales proceeds of the double herb drugs.” (b) Defendant 4 and Defendant 2 stated that the amount deposited exceeds KRW 100,000 as the sales proceeds of the double herb drugs. Accordingly, this part of the Defendant’s assertion is not acceptable.

B. Determination on the assertion of unfair sentencing by Defendants 1, 3, and 4 and the prosecutor

1) Defendant 1

The lower court, based on the circumstances that the Defendant, who did not obtain a license for herb pharmacist, established a pharmacy by employing herb pharmacists, and manufactured and sold multilateral medicine without permission, thereby threatening the health of the people and inducing misuse or abuse of drugs, and that the period of the crime is ten years, and the amount of the crime exceeds six billion won, and that there is a risk of causing serious side effects depending on the case of multilateral herb drugs produced by the Defendant, determined a sentence by considering the circumstances favorable to the Defendant, such as the fact that most of the instant crime was committed, and that the Defendant is dead and contradictory, and that the Defendant did not have any special criminal record other than the past and latter.

In full view of all the facts that the detention in prison is expected to be executed with respect to a maximum amount of fine that is concurrent with the reasons for the sentencing of the lower judgment, the sentencing of the lower court cannot be deemed to have exceeded the reasonable bounds of the discretion, and there is no change in sentencing conditions that can be deemed unfair to maintain the sentencing of the lower court as it is. Therefore, it cannot be deemed that the sentence of the lower court is too heavy or unreasonable. Accordingly, all of the allegations on the unreasonable sentencing of the Defendant and the prosecutor are rejected.

2) Defendant 2

The fact that the defendant repents his criminal act and reflects his criminal act, and that the period of lending the name of the herb pharmacist to the defendant 1 is relatively short of about five months is favorable.

However, the Defendant lent the name of the herb pharmacist to Defendant 1, who is not a herb pharmacist, and had Defendant 1 establish and operate the herb pharmacist; Defendant 1 manufactured and sold multilateral herb drugs to many persons without permission; Defendant 1 assisted Defendant 1 in response to counseling with customers who want to purchase multilateral herb drugs; Defendant prepared an anti-culatory acid differently from the method of preparation determined by the Minister of Health and Welfare without the prescription of herb doctor; Defendant sold it at the outside of a pharmacy; Defendant sold it at the outside of a pharmacy; Defendant had been sentenced twice a fine for the same kind of crime.

In full view of such circumstances and other factors as the Defendant’s age, character and conduct, environment, motive, means and consequence of the instant crime, and the circumstances after the instant crime, etc., the sentence imposed by the lower court is unreasonable as it is deemed unreasonable compared to the extent of the Defendant’s responsibility. Accordingly, the Prosecutor’s assertion of unreasonable sentencing is with merit.

3) Defendants 3 and 4

The fact that the defendants are divided into and reflected in their crimes, and that the defendants are the initial offenders are favorable circumstances.

However, the Defendants lent the name of the herb pharmacist to Defendant 1, who is not the herb pharmacist, and had Defendant 1 establish and operate the herb pharmacist; Defendant 1 manufactured and sold the herb drugs to many persons without permission; Defendant 1 attempted to obtain counseling with the customers who want to purchase the herb drugs; Defendant 3 attempted to commit the crime; Defendant 8 years in the case of Defendant 3; Defendant 4 for a long period of three years; and Defendant 4’s total amount of wages received from Defendant 1 is a large amount.

In full view of such circumstances and other factors as the Defendants’ age, character and conduct, environment, motive, means and consequence of the instant crime, and the circumstances after the instant crime, etc., the sentence imposed by the lower court is unreasonable as it is deemed unreasonable compared to the extent of the Defendants’ responsibility. Therefore, the Defendants’ assertion of unfair sentencing is without merit, and the Prosecutor’s assertion of unfair sentencing is with merit.

3. Conclusion

Therefore, the prosecutor's appeal against Defendant 2, Defendant 3, and Defendant 4 is with merit. Accordingly, pursuant to Article 364(6) of the Criminal Procedure Act, the part of the judgment below against Defendant 2, Defendant 3, and Defendant 4 among the judgment below is reversed and it is decided as follows through the pleading. Since the appeal against Defendant 1 and the prosecutor against Defendant 1 is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

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

(a) Defendant 2: Article 93(1)2, Article 20(1) of the Pharmaceutical Affairs Act, Article 30 of the Criminal Act (the establishment of an unqualified pharmacy, the choice of imprisonment), Article 95(1)3, Article 23(6) of the Pharmaceutical Affairs Act (the occupation of preparing medicines without any prescription, the choice of imprisonment), Article 94(1)8, Article 50(1) of the Pharmaceutical Affairs Act (the occupation of selling herb drugs in a place other than a pharmacy, and the choice of imprisonment);

B. Defendant 3: Articles 93(1)2 and 20(1) of the former Pharmaceutical Affairs Act (Amended by Act No. 13114, Jan. 28, 2015; Act No. 1314, Sep. 29, 2015); Article 30 of the Criminal Act (the establishment of an unqualified pharmacy, the selection of fines)

(c) Defendant 4: Articles 93(1)2 and 20(1) of the Pharmaceutical Affairs Act, and Article 30 of the Criminal Act

1. Aggravation for concurrent crimes (Defendant 2);

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse (Defendant 3, Defendant 4);

Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution (Defendant 2);

Article 62(1) of the Criminal Act

1. Order to make provisional payment (defendants 3 and 4);

Article 334(1) of the Criminal Procedure Act

The sentence shall be determined as ordered in consideration of the various circumstances as seen in paragraphs (b)(ii) and (3) above and the sentencing conditions.

[However, pursuant to Article 25 of the Rules on Criminal Procedure, among the parts against Defendant 1 of the judgment of the court below, the applicable parts among the reasons for the application of statutes and the sentencing shall be corrected as follows:

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

A. Defendant 1: Articles 93(1)2 and 20(1) of the former Pharmaceutical Affairs Act (Amended by Act No. 13114, Jan. 28, 2015; Act No. 1314, Sep. 29, 2015; Act No. 1320, Sept. 29, 2015); Article 30 of the Criminal Act (the establishment of an unqualified pharmacy publicly recruited with Defendant 3); Articles 93(1)2 and 20(1) of the Pharmaceutical Affairs Act; Article 30(1) of the Criminal Act; Article 30(1)2 and (2) of the Criminal Act; Article 31(1) of the Act on Special Measures for the Control of Public Health Crimes (the establishment of an unqualified pharmacy; the choice of a limited term, and a fine for each act)

1. The scope of punishment by law;

(a) Defendant 1: Imprisonment with prison labor for not less than one year and six months but not more than 22 years and six months; fine for negligence 6,339,05,000 (the price of oriental medicine sold x 2±2) but not less than 23,71,456,250 (the price of oriental medicine sold x 5 x 1.5 x 2));

Judges Yoon Jin- (Presiding Judge) Lee Jin-young

(1) Even in cases where a person manufactured and sold a drug for the purpose of sale without permission, the act of manufacture and sale constitutes separate crimes as an independent act (see Supreme Court Decision 84Do1945, Oct. 23, 1984).