2019Do9078 Violation of the Pharmaceutical Affairs Act

1. A;

2. B;

Defendants

Law Firm Taen Law Firm (for all of the defendants),

Attorney Cho Jin-ok

Suwon District Court Decision 2018Do3796 Decided June 13, 2019

September 9, 2019

All appeals are dismissed.

The grounds of appeal are examined.

Article 8 of the Court Organization Act provides that "The decision of a higher court in a trial shall bind the lower court with respect to the case in question." The latter part of Article 436 (2) of the Civil Procedure Act provides that "The decision of the lower court shall bind the lower court."

Although the Criminal Procedure Act does not have any express provision corresponding thereto, in light of the purport of the aforementioned legal provision, the existence of the tier system, and the fact-finding by the Supreme Court, which may intervene in the propriety of the judgment of the court below concerning fact-finding while judging the grounds of appeal, the actual judgment, which served as the grounds for reversal of the judgment of the court of final appeal, should also be deemed binding in criminal proceedings. Therefore, the court that was remanded from the court of final appeal to the court of final appeal, unless there is a change in the evidentiary relationship, which served as the grounds for reversal of the judgment of the court of final appeal, after remanding the case, provided as the grounds for reversal by the court of final appeal as the reasons for reversal (see, e.g., Supreme Court Decision 2008Do105

Before remanding, the lower court reversed the first instance judgment convicting Defendant A of violation of the Pharmaceutical Affairs Act (hereinafter “instant charges”) due to manufacturing and selling non-reported quasi-drugs among the facts charged in the instant case, and sentenced the Defendants not guilty. The Prosecutor appealed against this and appealed. The first instance court reversed and remanded this part of the charges by lawful evidence without further proceedings, on the ground that, in light of the evidence duly admitted by the lower court prior to remand, there is room for deeming that the Defendants’ re- packing act may be deemed an act of manufacturing non-pharmaceutical drugs, and thus, it is likely that the Defendants’ act of manufacturing non-pharmaceutical drugs would be deemed to be an act of manufacturing non-pharmaceutical drugs. Accordingly, the lower court reversed and remanded the case to the effect that the lower court erred by misapprehending the legal doctrine on the manufacturing of non-pharmaceutical drugs and failing to exhaust all necessary deliberations by misapprehending the legal doctrine on the manufacturing of non-pharmaceutical drugs. After remanding the judgment of the lower court (hereinafter “the lower court”).

In light of the above legal principles, the judgment of the court below is just in accordance with the binding force of the judgment remanded. The judgment below did not err in the misapprehension of legal principles as to the prohibition of manufacturing non-pharmaceutical drugs and double punishment by misunderstanding facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the prohibition

Meanwhile, the lower court’s argument in the grounds of appeal that there was an error of incomplete deliberation on sales amount of non-reported quasi-drugs, or that there was an error of misunderstanding of legal principles as to legitimate act and expectation, is not a legitimate ground of appeal, since the Defendant’s ground of appeal is alleged as the grounds of appeal or the lower court did not consider it as the subject of judgment ex officio. Furthermore, even in light of relevant legal principles and evidence duly admitted, the lower court did not err

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee

Justices Park Sang-ok

Justices Noh Jeong-chul

Justices Kim In-bok