The purport of Article 50 (1) of the Pharmaceutical Affairs Act that limits the place of sale, and whether the restriction on the place of sale prescribed by the said provision applies to the case where a pharmacy founder sells human drugs to a person who opens a veterinary hospital (affirmative)

Article 50 (1) of the Pharmaceutical Affairs Act

Supreme Court en banc Decision 2008Do3423 Decided October 23, 2008 (Gong2008Ha, 1637) en banc Decision 2005Hun-Ma373 Decided April 24, 2008 (Hun-Gong139, 602)

Plaintiff (Law Firm Sejong, Attorneys Lee Young-gu et al., Counsel for the plaintiff-appellant)

Gangnam-gu Seoul Metropolitan Government Head of Public Health Center (Law Firm Han-ro, Attorneys Ha Tae-ju, Counsel for defendant)

Seoul High Court Decision 2013Nu51598 decided June 27, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The lower court determined that: (a) the Plaintiff’s act of selling and transporting a human body drug to a person who opened a veterinary hospital via Internet shopping mall (hereinafter “sales act of this case”) does not allow the Plaintiff’s act of selling and transporting a drug through her home to the person who opened a veterinary hospital; (b) as the act of selling the drug that requires prescription and is supplied without preparation, unlike the preparation and sale of the drug to individual patients, to a person who opened a veterinary hospital; (c) as such, the pharmaceutical company and drug wholesaler sell the drug through the Internet and its substance identical to the sales of the drug; and (d) the act of selling the drug in this case does not constitute a difference between the pharmaceutical company and drug wholesaler’s sales and distribution of the drug in the process of selling and selling the drug in this case, since the pharmaceutical company and drug wholesaler do not need to give medical guidance to the person who opened the veterinary hospital; and (c) the other party to the sales act of this case does not directly deal with the consumer as the person who opened the veterinary hospital.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. In light of the legislative purport of the Pharmaceutical Affairs Act, which aims to contribute to the improvement of the public health of pharmacists, or to pharmaceutical affairs, such as the establishment of pharmacies or the preparation of drugs, etc., a person who intends to establish pharmacies, as well as a person who intends to establish pharmacies, shall install such pharmacies with facilities necessary for the standards prescribed by Presidential Decree, as prescribed by the relevant Acts and subordinate statutes. In principle, in light of the provisions of the Pharmaceutical Affairs Act with the essential contents that only a pharmacy founder may sell drugs while managing the pharmacy, the person who has established the pharmacy shall not sell drugs at a place other than the pharmacy or the store” under Article 50 (1) of the Pharmaceutical Affairs Act, the purport of deeming that a series of acts constituting the sale of drugs, such as the substance, preparation, delivery, and taking delivery of drugs, etc., should be interpreted to the effect that the person who established the pharmacy and the founder of the pharmacy may sell drugs within the pharmacy or in a manner that can be seen identical to those of the person who established the pharmacy, as prescribed by Presidential Decree, should not be limited to the extent of sale and abuse of drugs (see Supreme Court en banc Decision 2008Do308.

B. According to the reasoning of the judgment below and the record, the Plaintiff, a pharmacy founder, posted a human drug on the Internet shopping mall, ordered human-use drugs posted by the Plaintiff by a veterinary hospital founder, a member of the Internet shopping mall, through Internet shopping mall, and the Plaintiff is a series of process to transport the ordered human-use drugs to the person who opened the veterinary hospital through the line.

Examining these facts in light of the legal principles as seen earlier, the entire or major part of the series of acts constituting the sale of drugs, such as ordering and delivery of drugs, cannot be deemed to have been performed within the Plaintiff’s pharmacy. Thus, the instant sale constitutes a violation of Article 50(1) of the Pharmaceutical Affairs Act regarding the restriction on the place of sale of drugs.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the instant sales act did not violate Article 50(1) of the Pharmaceutical Affairs Act. In so doing, it erred by misapprehending the legal doctrine on Article 50(1) of the Pharmaceutical Affairs Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)