The prosecutor's appeal is dismissed.

1. The gist of the grounds of appeal is that the Internet shopping mall site operated by the defendant is the same settlement method as that of the general shopping mall, marketing is not different from that of the general importer and does not accurately post overseas seller information. In light of the fact that marketing is practically exclusive rights in the sales procedure, inducing purchase through active product advertising, and orders are made from an overseas company after the defendant received payment from an overseas company, the defendant is not an import agent, but a person who intends to import drugs, etc. (hereinafter “importer”) under Article 42(1) of the former Pharmaceutical Affairs Act (amended by Act No. 13219, Mar. 15, 2015; hereinafter “former Pharmaceutical Affairs Act”). Since the defendant's act of bringing drugs, etc. into Korea is an import act, it does not affect the establishment of a crime of violation of the Pharmaceutical Affairs Act even if the defendant delivered goods to the customer.

Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby acquitted the Defendant.

2. Determination

A. Article 42(1) of the former Pharmaceutical Affairs Act provides that "a person who intends to import drugs, etc. (hereinafter referred to as "importer") shall obtain permission or file a report with the Minister of Food and Drug Safety for each item, as prescribed by Ordinance of the Prime Minister." Article 68(5) of the same Act provides that "no person shall advertise the name, manufacturing method, efficacy, or performance of drugs, etc. unless he/she obtains permission or files a report in accordance with Article 31(2) and (3) or 42(1)." Thus, the issue of the instant case is whether the Defendant who operates an Internet shopping mall site falls under "importer" under the former Pharmaceutical Affairs Act in advertising specific quasi-drugs as stated in the facts charged.

(b) Article 42 (1) of the former Pharmaceutical Affairs Act.