2012T 102965 Return of deposit

MV Co., Ltd.

Mayang-si

Representative Director;

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

J Medical Welfare Foundation, a foundation

Seoul

Representative Director

Law Firm Jeong-sung, Counsel for the plaintiff-appellant

Attorney Kim Gyeong-dae, and Kim Jong-kin

March 22, 2013

April 19, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The defendant 310, 712, 328 Won and 250, 00, and 00 won among them to the plaintiff

The payment shall be made at the rate of 20% per annum from the day after the service date to the day of full payment.

1. Basic facts

A. The plaintiff is a company whose purpose is the wholesale and retail business of medicines, and the defendant is a medical institution.

It is an incorporated foundation established for the purpose of operation, etc.

B. The plaintiff and the defendant on December 24, 2007 that the defendant newly built in Guro-gu Seoul on December 24, 2007 is the plaintiff's significance.

The contract for the supply of drugs was concluded (hereinafter referred to as the "contract of this case"). The main text of the contract of this case

Contents are as follows (In the terms of the contract below, Gap means the plaintiff, Eul means the defendant).

Article 1 (Supply Unit Price and Medicines Supply Price) The supply unit price of the goods shall be supplied to Eul at the base price, and Gap shall be supplied in good faith to the legitimate orders requested by Eul, and the amount of KRW 600 million shall be paid to Eul for trust. Eul shall be paid KRW 300 million to Eul until December 10, 2007, and Eul shall be paid KRW 300 million at the same time as the opening of the hospital. The basic contract period of Article 2 (Terms of Contracts) A and B shall be from March 2008 to October 209, and the total purchase amount shall be KRW 3 billion ( KRW 150,000,000 per month, the total purchase amount and the early completion date of the contract, and shall be the expiration date of the contract, and all other medicines shall not be supplied through consultation with Gap, and the supply shall not be adjusted (Article 2 (Terms of Contracts).

At the time of occurrence, the contract may be terminated by deeming the failure to perform the contract.Although there is no cancellation of the contract in the principle of Article IV, it shall be settled and arranged at the time of the occurrence of the cause, on the basis of mutual trust and respect, and on the implementation portion. (Non-performance of the contract, the entry of others into medicine, etc.)

C. On December 10, 2007, the Plaintiff issued a deposit of KRW 300 million to the Defendant pursuant to Article 1 of the instant contract.

(hereinafter referred to as 'the deposit of this case' paid to the Defendant, and this is called 'the deposit of this case'.

In Article 1 of the contract of this case, "the contract of this case" is referred to as "the contract of this case".

D. The defendant did not open the above hospital until March 2008, and the defendant did not open the hospital and incurred excessive debts.

When the possibility of the plaintiff's failure to perform its duty was caused, the plaintiff notified the defendant of the cancellation of the contract of this case at that time.

High Court demanded the return of KRW 300 million. Accordingly, the defendant on July 31, 2008 to the plaintiff on July 31, 2008

Among them, 50 million won was returned.

[Ground of recognition] Unsatisfy, Gap evidence 1, 5, 6, Eul evidence 2 and 3 (which has a number)

Each description of the number, including number, hereinafter the same shall apply), the purport of the whole pleading;

2. Determination as to the cause of action

According to the above facts, the contract of this case was rescinded by the plaintiff's expression of intent, and thus special

Unless there are special circumstances, the defendant shall restore to its original state the above deposit amount of KRW 300 million and its substitute for the plaintiff.

50 million won which was refunded from the Defendant’s statutory interest and damages for delay shall be deemed as having been paid by the Defendant’s

There shall be an obligation to pay the amount deducted under the Act.

3. Judgment on the defendant's defense

A. Defendant’s defense

The Agreement on the Deposit of this case provides for medical treatment to the defendant who is the medical supplier.

to pay 600 million won in return for the monopoly supply of the goods

Since its security deposit is determined, it is so-called "repeachment" prohibited by the Pharmaceutical Affairs Act, the Medical Service Act, etc.

The Plaintiff constitutes illegal consideration. Therefore, the Plaintiff’s instant security deposit, which is illegal consideration, to the Defendant.

no claim for return shall be filed.

B. Determination

1) Sales, such as adoption and exclusive supply of drugs by drug wholesalers, etc. to medical institution founders, etc.

In other words, so-called ‘reward rebates' (hereinafter referred to as ‘the so-called ‘reward rebates'), such as money and benefits provided for the promotion of sale.

The act of offering bet' ("bet") limits the choice of drugs by founders, etc. of medical institutions and limits the choice of drugs by founders, etc.

Act that interferes with fair and free competition among drug wholesalers and undermines the integrity of transactions;

(1) In addition, a person who has established a medical institution may cause tax evasion or medicine by raising funds for the establishment of a medical institution.

The price of goods is distorted to affect the determination of insurance fees, and ultimately the consumer is ultimately a citizen.

It constitutes an act that causes socially harmful results, such as the transfer of rebates costs.

Accordingly, according to Article 47 (2) of the Pharmaceutical Affairs Act, a drug wholesaler shall adopt medicines and induce for prescription.

money, goods, benefits, labor, entertainment, and other items to the founder of a medical institution for the purpose of sales promotion;

No economic benefit shall be provided, and according to Article 94-2 of the same Act, the manner to violate this Act

by imprisonment with prison labor for not more than two years or by a fine not exceeding 30 million won, and the economic benefits, etc. they have taken shall be confiscated;

In addition, according to Article 23-2 of the Medical Service Act, medical personnel shall import and wholesale drugs.

Money, goods, and letters provided for the purpose of sales promotion, such as adoption of drugs and inducement for prescription;

No benefit, labor, entertainment, or other economic benefit shall be received, and shall be governed by Article 88-2 of the same Act.

If a person violates this, he/she shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding 30 million won.

In addition, a doctor belonging to a national or public university hospital is required to confiscate or collect various benefits, etc.

In case of offering rebates, the relevant doctor and provider shall be the crime of bribery and offering, and the case of a private university hospital

Where rebates is provided to a doctor, the relevant doctor and provider shall each be punished for the crime of taking property in breach of trust or capital increase.

shall be subject to punishment, and the Fair Trade Commission shall also have jurisdiction over the solicitation of unfair customers by pharmaceutical companies.

It imposes a fixed order and penalty surcharge, and imposes a legal review on the rebates practices.

Ultimately, the act of offering rebates is a tort which is strictly prohibited by law, good morals and others

It is obvious that it is an act contrary to social order.

2) In the instant case, health expenses, ① The instant security expenses are exclusively generated by the Plaintiff to the Defendant.

(2) The contract of this case was made in return for guaranteeing the right to supply

Even if the Do is reversed, only a part of the deposit already paid is settled (Article 4 of the instant contract).

according to section, a guarantee equivalent to the ratio of the amount already performed to the total amount of 3 billion won.

The Defendant appears to have agreed to settle the amount, even if the contract term expires, and the Defendant’s objection to the Plaintiff.

It does not bear the obligation to return the deposit amount of KRW 600,000,000 under the contract.

The scale of the deposit under the contract of this case (60 million won) shall be the scale of the delivery under the contract of this case (20 months).

In light of the fact that the sum total of KRW 3 billion exceeds 20% of the total sum of KRW 3 billion, the instant security deposit is a drug.

Provision for the purpose of exclusive supply of drugs to the Defendant who is a wholesaler.

this case’s security deposit agreement constitutes a money which constitutes a rebates, such as good morals and other

An act contrary to the order of the Association is null and void pursuant to Article 103 of the Civil Act. Accordingly, the deposit of this case is no longer effective.

The instant security deposit paid pursuant to fixed consideration constitutes illegal consideration under Article 746 of the Civil Act.

Therefore, the defendant's above defense cannot be claimed to return it. Thus, the defendant's defense is justified.

3) Accordingly, the Plaintiff: ① The instant security deposit agreement is concluded by the Plaintiff in accordance with the principle of private autonomy.

section 83 of this title shall guarantee the opportunity for exclusive supply of medicines to the Defendant, and the Defendant shall be in good faith supplied and financial

(2) Illegal solicitations are made in order to obtain the benefit of each other, such as the granting of support

(3) The provisions of the Pharmaceutical Affairs Act and the Medical Service Act as seen earlier are not received in return for the instant security deposit.

acts aimed at facilitating sales, such as adopting or inducing to prescribe particular drugs;

under the contract of this case to exclusively supply all drugs, such as the contract of this case

The act of offering profits is not in violation of the Pharmaceutical Affairs Act and the Medical Service Act;

The instant deposit asserts that it does not constitute illegal consideration.

However, the illegal cost stipulated in Article 746 of the Civil Code is prohibited by the reason that the claim for restitution of unjust enrichment is prohibited.

person means that an act resulting from it violates good morals and other social order;

(Supreme Court Decision 2003Da41722 Delivered on November 27, 2003), 1 The agreement of this case

Even if the Plaintiff and the Defendant were made for the benefit of mutual interests (the act of receiving rebates)

of the Parties, the interest between the Parties is not due to coercion by either Party.

for purposes of this chapter, as seen earlier, impeding fair and free competition, and pharmaceutical products

distort distortions, which cause social harmful effects, such as the cost of rebates for the public.

In this respect, it constitutes an act contrary to good morals and other social order, and ② good morals and others

Illegal solicitation is not necessarily necessary for acts in violation of social order (illegal solicitation).

In criminal law, it is only a requirement required in the crime of giving or receiving of a breach of trust, giving or receiving of a third party bribe, or promise to demand a third party bribe); 3.

In the cases of the Pharmaceutical Affairs Act and the Medical Service Act, the profits related to the supply of specific medicines;

Libers on the exclusive supply of all drugs, as well as not limited to the provision of

anti-social order or social order, rather than receiving rebates for the adoption of a specific drug;

Since it cannot be said that there is little hazard, the plaintiff's above assertion is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Justices Kim Sung-soo

Judges Dominl

Judges Seo-Gyeong et al.

1) All of the above provisions are established on May 27, 2010, after the payment of the instant deposit, or are established on May 27, 2010 by a pharmacy founder or a medical institution founder.

It is only newly established in order to resolve defects in criminal punishment such as not punishable as a crime of taking property in breach of trust under the Criminal Act (Law No. 27 May 27, 2010).

The act of receiving rebates only for the establishment of a new provision under the Pharmaceutical Affairs Act, amended by Act No. 10324, and amended by Act No. 10325 (see the grounds for amendment of the Medical Service Act).

The anti-social order is not created.