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Defendant
All appeals filed by B, C and Prosecutor are dismissed.
Reasons
1. Summary of grounds for appeal;
A. The lower court found Defendant B and C(1) guilty by misapprehending the legal doctrine on common principal offenders, even though it was not a common principal offender for the establishment of a pharmacy by a person who is not a pharmacist or an oriental medical doctor, since the Defendant obtained a pharmacist’s license in relation to the facts constituting a crime set forth in the lower judgment.
(2) Each sentence of the lower court against the illegal Defendants (defendant B: one year of suspended sentence; two years of suspended sentence; one year of imprisonment; one year of probation; one hundred and sixty hours of community service; and two years of suspended sentence in six months of imprisonment) is too unreasonable.
B. Each sentence of the lower court (Defendant A: fine of KRW 10 million; fine of KRW 7 million; fine of KRW 7 million; Defendant B; and C: each of the above punishments) against the Defendants by the prosecutor is deemed to be too uneasible and unfair.
2. Determination
A. According to the evidence of the lower court’s assertion of misapprehension of the legal doctrine as to Defendant C’s assertion, the following can be acknowledged: (a) B, who is not a pharmacist, conspireds to establish the instant LA pharmacy; (b) in the process of implementation, B, who is in charge of the overall operation of the pharmacy, such as the preparation of a dispensary, and the sale of medicine, with the above pharmacy; and (c) Defendant C, a pharmacist, in accordance with B’s proposal, lent the name necessary for the establishment of the pharmacy; (d) prepare a real estate lease agreement of the above pharmacy; and (e) prepare an application for the establishment of the pharmacy
Therefore, Defendant C shared the functions that are essential requirements for the establishment of the pharmacy in B and carried out.
Article 20 (1) of the Korean Pharmaceutical Affairs Act prohibits a person, other than a pharmacist, from opening a pharmacy, so it is obvious that a pharmacist does not violate this article, but a pharmacist is a pharmacist.
Even if a person who is not a pharmacist or herb pharmacist commits a violation of Article 93 (1) 2 and Article 20 (1) of the Pharmaceutical Affairs Act if he/she acted in collusion for the establishment of a pharmacy.