2014Guhap21792. Revocation of revocation of application for the establishment of a pharmacy

Plaintiff:

Port Markets

October 22, 2014

November 21, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On July 23, 2014, the Defendant revoked the non-application for the establishment of a pharmacy against the Plaintiff.

1. Details of the disposition;

A. On July 21, 2014, the Plaintiff filed an application for registration of the establishment of a pharmacy with the name “○○ pharmacy” (hereinafter “instant application”) with the Defendant on the 201 - 201 - 26 01 m26 m2, the 201 m2, the 201 m2, the 201 m2, the 201 m2, the 201m2 (hereinafter “instant building”).

B. On July 23, 2014, the Defendant notified the Plaintiff that the establishment of the instant pharmacy would not be registered on the ground that the instant pharmacy constitutes “where there is a passage, such as an exclusive corridor, stairs, elevator, or a footbridge, etc., between the medical institution and the pharmacy” (hereinafter “instant disposition”).

【Uncontentious facts, Gap evidence 1, Eul evidence 5 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 20 (5) 4 of the Pharmaceutical Affairs Act provides for the grounds for restrictions on the establishment registration of cases where there is an exclusive passage between a medical institution and a pharmacy. In this regard, the prior meaning of the exclusive (exclusive) is to be limited to only one purpose and only the passage used only by a medical institution and a pharmacy. However, on the second floor of the building of this case, there are four shops in total, and only one of them is medical institution (Gengsung), and the rest is the pharmacy, retail store, and the cosmetics agency, and the second floor corridor cannot be deemed to be a "exclusive corridor" as a passage used by the users of other stores in addition to the medical institution of this case, and the stairs and elevators of this case cannot be deemed to be a "exclusive passage between medical institution and the pharmacy of this case."

Nevertheless, the defendant's disposition of this case which rejected the plaintiff's application of this case on different premise is unlawful.

(b) Related statutes;

Attached Form 1 is as shown in the relevant Acts and subordinate statutes.

(c) Fact of recognition;

1) The instant building is a building with 10th above ground and 1st underground, with parking lots, pharmacies, etc. located on the first floor, and most of them are used as hospitals from the second to the nineth floor, and 10th floor is being used solely as a house.

2) The current status of the second floor of the instant building is the same as that of the ground plan indicated in attached Form 2, and is divided into 201 No. 1 (152. 13m square meters), a sectioned building (202. 64m square meters), and 201 currently divided into the instant pharmacy (26. 01m), cosmetics agents (25. 58m square meters), and retail stores (10. 54m square meters); 202, a person having chonsegwon, a medical institution, is located in this location (hereinafter referred to as “instant hospital”).

3) Both the instant hospital and the instant pharmacy are facing the south of the entrance. Each entrance is limited to about 3 to 4 meters, and there is a corridor consisting of the entrance outside the entrance. There is an elevator located in the front of each entrance immediately, and there is a stairs in the right direction after the passage of the front corridor of the pharmacy. On the other hand, a 100 square meters of the retail store No. 201 does not have any specific facility up to the present, and the entrance is made through a narrow channel of about 1 to 2 meters of the width located between 201 and 202.

5) On June 10, 2014, the Plaintiff entered into a lease agreement with Nonparty 1, the owner of the instant application, with a deposit amounting to KRW 110 million, and 12 months from the store name city.

6) The trade name of the cosmetics agency located immediately adjacent to the instant pharmacy is △△△ Cosmetics, △△ 2, 2, and 3 June 2014, 201. The Defendant’s employees in charge conducted the business activities of the said cosmetics agency over four occasions from August 12, 2014 to August 20, 2014, and prepared a business trip report. The main contents of the business trip report are as follows.

7) Meanwhile, prior to the Plaintiff’s filing of the instant application, the Defendant was asked several questions as to whether to establish a pharmacy as follows.

○ On August 30, 2013, the real estate broker Nonparty 3 asked the Defendant about whether the establishment of a pharmacy was impossible on the ground that there was an exclusive passage between the instant hospital and the pharmacy on September 4, 2013.

On March 12, 2014, Nonparty 3 asked the Defendant of the registry of the establishment of a pharmacy with respect to “the retail store (100 m2, 54 m2, 100 m2)” or “the part (51. 59 m2, 200 m2,000 m2,000 m2,000 m2,000 m2,000)”. The Defendant notified the establishment of a pharmacy for the same reason

On June 30, 2014, the Plaintiff filed a civil petition with the Defendant for registration of the establishment of a pharmacy in the instant application site, and the Defendant also notified the Defendant that the establishment of a pharmacy is not possible for the same reason as before.

【Uncontentious facts, Gap evidence 2 through 4, Eul evidence 1, 2, 4, 5, 9 (including each number), and the purport of the whole pleadings

(d) Determination.

1) Article 20(2) of the Pharmaceutical Affairs Act provides that any person who intends to establish a pharmacy shall register the establishment of the pharmacy with the Mayor, etc. as prescribed by Ordinance of the Ministry of Health and Welfare, and Article 20(5)4 of the same Act provides that any person who intends to establish a pharmacy shall not obtain registration of establishment in the case where a passage, such as an exclusive (exclusive) corridor, stairs elevator or a footbridge, etc., exists or is installed between a medical institution and a pharmacy. The legislative intent of the above provision is to prevent the act of collusion between a medical institution and a pharmacy in accordance with the implementation of pharmaceutical distribution business by preventing the establishment of an exclusive channel where the act of collusion is likely to occur between a medical institution and a pharmacy, taking into account the close relation between a medical institution and a pharmacy, while the general administrative supervision is very difficult to detect the act of collusion between a medical institution and a pharmacy.

10. See Supreme Court Order 2001Hun-Ma700, 2003Hun-Ba11 Decided 30. 30

In light of the above relevant laws and legislative intent, the exclusive passage between the medical institution and the pharmacy under Article 20(5)4 of the Pharmaceutical Affairs Act refers to the passage installed to allow only the patients of the medical institution to enter and leave the pharmacy in principle, but exceptionally, even if ordinary people other than the patient are allowed to enter and leave the pharmacy, if only the patients of the medical institution can be seen as using the pharmacy as the passage to which they enter the pharmacy, considering the structure of the building, the passage of the medical institution users, the passage ratio for other purposes, time and location distance, etc., it is reasonable to deem that the exclusive passage is a passage.

2) The plaintiff's above-mentioned facts, relevant Acts and subordinate statutes, and Eul's No. 7 evidence revealed that the plaintiff's use of the above-mentioned pharmacy No. 1 was 5, namely, ① the pharmacy located on the second floor of the building of this case and the hospital of this case are attached only to the passage of 1 to 2m. The entrance door of the hospital of this case is not 3 to 4m. The above hospital and the pharmacy users are connected to the corridor of this case. ② The second floor of the building of this case were 201 and 202, and the hospital of this case was 100 and 100 were 4m of the building of this case. The plaintiff's use of the above-mentioned pharmacy No. 20 and 20m of the building of this case. The plaintiff's use of the above-mentioned pharmacy No. 2 was 60m of the building of this case. The plaintiff's non-party No. 1, the owner of this 201m of the building of this case was 4m of this case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges in order of the presiding judge

Judges Doese defect

Judges Kim fixed-term

A person shall be appointed.

A person shall be appointed.