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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Details of the disposition;
A. The Plaintiff is a pharmacist who establishes and operates a pharmacy (hereinafter “instant pharmacy”) under the trade name “C” in Changwon-si, Changwon-si.
D has worked as an employee at the instant pharmacy.
B. On May 16, 2012, D sold to female customers, whose name the instant pharmacy was found, one “Catur”, an over-the-counter medicine, as a fire extinguishing agent (hereinafter “the instant medicine”), to KRW 2,000.
Article 44(1) of the former Pharmaceutical Affairs Act (amended by Act No. 11251, Feb. 1, 2012; hereinafter referred to as the "Pharmaceutical Affairs Act"), Article 76(3) of the Pharmaceutical Affairs Act, Article 96 [Attachment 8] of the Enforcement Rule of the Pharmaceutical Affairs Act (amended by Ordinance of the Ministry of Health and Welfare No. 160, Sept. 26, 2012; hereinafter the same shall apply) that prohibits the sale of underlying drugs
Ⅱ Article 81 of the Pharmaceutical Affairs Act; Articles 33 and 34 of the Enforcement Decree of the Pharmaceutical Affairs Act (amended by Presidential Decree No. 24479, Mar. 23, 2013; hereinafter the same)
C. On August 1, 2012, the Defendant, a pharmacy founder, issued a disposition imposing a penalty surcharge of KRW 5,700,000 in lieu of ten days of business suspension pursuant to the following applicable statutes (hereinafter “instant disposition”).
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, and 5, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The instant disposition asserted by the Plaintiff is unlawful for the following reasons.
1 D only assisted the sale of the drug of this case according to the direction of the Plaintiff within the extent of the Plaintiff’s general management and supervision right, and D does not independently select and sell the drug.
The plaintiff ordered ordinary D to sell the drug of this case when customers request fire extinguishing, so the plaintiff sold the drug under the plaintiff's implied and abstract instruction. The plaintiff actually sold the drug of this case.