In a case where a doctor Gap, who is the director of the film department in a university hospital, entered into a research service contract in the form of “after-market investigation” to investigate and notify whether there is a serious hazard to the business entity importing and selling the climatic system, and the patients who administered the climatic system, and received money and valuables in the name of research service expenses, etc., and the Minister of Health and Welfare issued a disposition of suspension of qualification for one month against Gap on the ground that it constitutes an act of receiving money and valuables in return for illegal solicitation from the above company

In a case where Party A, who works in the division of the film department of a university hospital, entered into a research service agreement in the form of “after-market research service contract” to investigate and notify whether there is a serious hazard to the patients who invested in the early program, and the Minister of Health and Welfare made a disposition of suspending Party A’s license for one month on the ground that the act of receiving money and valuables in the name of the research service cost and the expenses for meal service in return for illegal solicitation from the above company constitutes the act of receiving money and valuables in return for an illegal solicitation, the case held that the above research service agreement was lawful since Party A was aware of the fact that the purpose of the above research service agreement is not to investigate and research the side effects of the early system, but to pay money and valuables to the above company for the use of the early program in the hospital, it is reasonable to view that Party A entered into the above contract and received money and valuables from the above company, and the money and valuables received with the revolving subsidy, etc. do not constitute an act of receiving unjust solicitation in connection with his duties, and thus, it cannot be deemed that the above disposition was unlawful.

Article 53 (1) 1 (see current Article 66 (1) 1), (2) (see current Article 66 (2)), Article 21 (1) 5 (see current Article 32 (1) 5) of the former Enforcement Decree of the Medical Service Act (wholly amended by Presidential Decree No. 20292, Sept. 28, 2007); Article 4 [Attachment Table] 1 (c) and 2 (a) (see current Article 32 (1) 1) of the former Rules on Administrative Measures Concerning Medical (wholly amended by Ordinance No. 383, Jan. 30, 2007); Article 4 [Attachment Table] 1 (c) and 1 (c) and 2 (a) (26) of the former Medical Service Act (wholly amended by Ordinance No. 8366, Apr. 11, 2007); Article 4 [Attachment Table 1] 1 (c) (1), 2 (a), and 35 (a) of the Administrative Litigation Act]

Plaintiff (Law Firm Suwon, Attorneys Kim Young-hoon et al., Counsel for plaintiff-appellant)

The Minister of Health and Welfare

Seoul Pedestrian District Court Decision 2009Guhap9307 Decided October 13, 2010

March 25, 2011

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's disposition of suspending the qualification for one month against the plaintiff on March 4, 2009 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff obtained a doctor’s license on February 28, 1987 and served as the director in charge of the film department in the National University Hospital from July 1, 2005.

B. The Plaintiff entered into a research service contract (hereinafter “each of the instant contracts”) in the form of a research service contract (hereinafter “PP”) to investigate and notify whether there is a serious harmful case with respect to the patients who administered the dynamics, such as the table â…” (hereinafter “PPP”) with the Rober Korea Co., Ltd., Ltd. (hereinafter “Liber Korea”). The Plaintiff received money and valuables from around September 1, 2005, KRW 10 million,000,000 won on October 28, 2005, KRW 5 million on September 25, 2006, KRW 300,000 won on September 26, 2006, KRW 500,000 won on September 26, 2006, KRW 500,000 on September 26, 2006, and KRW 501,500,000 on September 26, 2005.

Nonparty 2, around August 2005, 400, 200, August 21, 2006, Nonparty 13, 200, 200, 2000 Nonparty 13, around August 21, 2006, 200, 10,000, 10,000

C. As above, the Plaintiff was investigated into suspicion of unfairly receiving money and other valuables in relation to his duties, and was ordered to suspend indictment by the prosecutor of the Seoul Central District Prosecutors' Office on August 7, 2008.

D. On March 4, 2009, the Defendant: (a) based on the facts of suspicion of the suspension of indictment, received money and other valuables on the pretext of research service expenses and meal support expenses under each of the instant contracts; (b) on the ground that the act of receiving money and other valuables from the Plaintiff on the ground that it constitutes an act of receiving money and other valuables from the Plaintiff on the ground that the act constitutes an act of receiving money and other valuables in exchange for an illegal solicitation for continuous use of dynamics sold by the aforementioned hospital; (c) Article 53(1)1 and (2) of the former Medical Service Act (wholly amended by Act No. 8366, Apr. 11, 2007); and (d) Article 21(1)5 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 20292, Sep. 28, 2007); and (d) Article 204 subparag. 1 and 4(a) of the former Rules on Medical Treatment (amended by Ordinance of the Ministry of Health and Welfare No. 3830, Jan. 20, 4);

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Gap evidence No. 5-1, 2, and 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of the grounds for disposition

Since each of the instant contracts is lawful and lawful research services contracts, the Plaintiff cannot be deemed to have received money and valuables in relation to his/her duties on the grounds that the Plaintiff received money and valuables from Bolibes Korea as research service expenses. Moreover, the Plaintiff’s money and valuables received from Bolis Korea as the expenses for meal services falls within the scope of a private case, and it is difficult to view it as an act of unfairly accepting money and valuables in relation to his/

(ii) the omission of deliberation and determination procedures of the Central Medical Examination Conciliation Committee;

Whether each of the contracts of this case is legitimate and lawful research service contracts or forms for receiving unfair money and valuables in relation to duties, and whether the money and valuables that the Plaintiff received from Malibes Korea as the expenses for meal service falls under the scope of private case, the Defendant did not undergo the deliberation procedure by the Central Medical Examination and Conciliation Committee under Article 21(2) of the Enforcement Decree of the Medical Service Act at the time of the disposition of this case.

(iii) the deviation and abuse of discretionary authority;

In light of the fact that it is unclear whether each of the contracts of this case is merely a form of giving and receiving money or goods in relation to the duties, it is not necessary for the public interest to suspend the Plaintiff’s license. In light of the fact that the Plaintiff’s honor and the degree of economic loss due to the instant disposition is considerable, the instant disposition was excessively harsh to the Plaintiff, thereby abusing and abusing discretion.

B. Relevant statutes

[Attachment] The entry in the relevant statutes is as follows.

C. Facts of recognition

1) Voluntary Pms

A) Conclusion of a voluntary PE contract with Rober Korea and the doctors of each hospital

(1) On November 12, 2001, as a sales corporation located in France, the Republic of Korea was granted import marketing approval from the Commissioner of the Korea Food and Drug Administration for the dynamics, and at the time, the dynamics were not classified as drugs that need to be collected and reported on the side effects by undergoing re-examination under the Pharmaceutical Affairs Act or by conducting mandatory Pms.

(2) At the time of the conclusion of each of the instant contracts, Liber Korea entered into a voluntary PPP contract with the doctors of each hospital other than the Plaintiff. With respect to the expenditure of each of the above contracts, the item is indicated as “Busi Business Promotion” and the item is indicated as “Busi Business Promotion” and the item is indicated as “the purpose of the expenditure of the PP PPs Report attached to the expenditure document” for the purpose of the expenditure of the PP cost.

(3) The proposal was made to the doctors of each hospital to conclude a voluntary PE contract for the NAs was the members of Rober Korea’s business, and accordingly, a voluntary PE contract was concluded between Rober Korea and the doctors of each hospital in their individual names.

(4) According to the monthly Pms management report by Korea, the number of sales and quantities of steering agents increases in proportion to the number of sales of Pms.

(5) The Republic of Korea set the type of the agency to be voluntarily conducted the PPP survey only “the general hospitals using the main agents and other medical institutions’ circulation units and radiation departments,” and did not separately set regulations on the number of survey findings. Moreover, in the documentary report (CRF) format, which is provided by Libers to doctors by voluntary PPP contracts, the purpose of the research is to investigate the side effects. However, the part describing the side effects is to indicate only “the occurrence of side effects (within 24 hours after dumping), the degree of causation, and the type of side effects.”

B) Details of the conclusion of each contract of this case

(1) In the film department of the National University Hospital, the Plaintiff is using a steering system equivalent to KRW 100 million per month, and the Plaintiff has a substantial authority to select a steering system as the chief of the film department of the said hospital.

(2) On August 2005, according to Nonparty 3’s proposal, the Plaintiff entered into a voluntary marketing contract (use performance investigation contract) with Libers Korea, and received KRW 10 million from Nonparty 3 on September 1, 2005, and KRW 10 million on October 28, 2005, respectively. In addition, the Plaintiff directed Nonparty 1 and 2, who were working at the same hospital, to enter into a voluntary marketing contract with Libers Korea in their names, and drafted a voluntary marketing contract with each of the above Nonparty 1 and 2 on August 21, 2006. Since then, Libers Korea deposited the above KRW 1 and 2 in each of the above accounts with the above KRW 5 million on September 1, 2005, and deposited the Plaintiff’s account with Nonparty 1 and 2 on May 25, 200, respectively.

(3) According to each contract of this case, the name of the product subject to investigation is "Plastics (300/350)," "Obrics (30/350)," "Obrics", and "the purpose of the investigation is to grasp the occurrence of an important side effect not known under the conditions of actual use of the product, or the actual side effect, and the factors that may have an effect on the safety or effectiveness of the product, etc., and the amount is calculated as 50,000 won per evidentiary document."

(4) As above, the Plaintiff entered into each of the instant contracts and received a documentary report form from the above non-party 3, and delivered it to the nurse. The nurses, immediately after the shots administered, prepared and submitted a documentary report to the Plaintiff by observing the patient’s condition, and the Plaintiff delivered the report to the above non-party 3. As seen above, the Plaintiff did not directly observe the patient’s condition, or prepare a documentary report.

(5) The Plaintiff used the total of KRW 30 million received as research service expenses under each of the instant contracts for the purpose of using it as national expenses, such as employee meal expenses and school meal support expenses, or for personal purposes.

2. Acceptance of support funds for meal services;

A) On December 16, 2005, the above non-party 3, who is a business employee of Libers Korea, supported 300,000,000 won as a meeting meal expenses with the video department of the National University Hospital, including the plaintiff on December 16, 2005. On the same day, the non-party 3 supported 1,00,000 won as a dan bar (the plaintiff stated in the police investigation that the plaintiff did not have a dan bar).

B) In addition, the Plaintiff received golf links from Nonparty 4, a business director of the Republic of Korea, from Nonparty 3, the above Nonparty 4, May 25, 2005, November 9, 2005, and February 21, 2006.

C) In addition, on September 15, 2005, the Plaintiff received 150,000 won of the market price from the above non-party 3 as gift.

D) On September 12, 2007, the Plaintiff recognized that money and valuables equivalent to KRW 1,156,125 were received from Rober Korea in total when the police investigation was conducted on September 12, 2007 and the number of persons was divided.

[Reasons for Recognition] Evidence Nos. 4, 5-1, 2, 3, 6-1, 2, 7-2, 8-2, and 8-2, and the purport of the whole pleadings

D. Determination as to the existence of the grounds for the disposition

1) Whether each of the instant contracts is a legitimate research service contract

A) Whether voluntary ms are permitted

Voluntary Pms of a pharmaceutical company refer to voluntary activities of continuously collecting and investigating side effects of drugs even after the marketing of drugs. Article 28(3) of the former Enforcement Rule of the Pharmaceutical Affairs Act (wholly amended by Ordinance of the Ministry of Health and Welfare No. 434, Jan. 15, 2008) provides that a "test conducted to observe clinical effects and investigate adverse reactions to permitted drugs, etc. on the market" is excluded from those subject to approval of the Commissioner of the Korea Food and Drug Administration. Thus, voluntary Pms of a pharmaceutical company are permitted.

However, even if a doctor affiliated with a hospital prepares a research service agreement in the form of voluntary Pms with a pharmaceutical company, and receives money and valuables based thereon, the research service agreement is merely in the form, and in substance, if the money and valuables received by the doctor for the adoption and use of the pharmaceutical company's products at the hospital, the above act by the doctor constitutes an act of accepting money and valuables in exchange for illegal solicitation in relation to his/her duties

B) The purpose for which Libers Korea entered into a voluntary PE contract

As seen in the above facts, since NAS has not been classified as a medicine that must undergo a re-examination under the Pharmaceutical Affairs Act or which must collect and report adverse effects by conducting a compulsory PMS, it was less necessary for NAS Korea to carry out PE voluntarily with respect to NASs. ② It is not necessary for NAS Korea to carry out voluntary PEs contracts with the doctors of each hospital including the Plaintiff, but rather indicated as “promotion of business, enhancement of oil supply and prevention of competitors’ infiltration.” ③ Voluntary PES contracts for NAs are not the research and development of adverse effects of each hospital, ③ it is not the research and development of PEs, ③ it is not the research and development of PEs, ③ it is not the research and development of PEs, ④ it is not the research and development department of PES contracts, ④ it is not the research and development department of PEs, ④ it is not the fact that PESs Korea has already carried out research and developmental side effects on each hospital, and there is no specific increase in the content of PES contracts.

C) Whether the Plaintiff was aware that it was illegal money or other valuables related to his duties

In light of the fact that the plaintiff concludes each of the contracts of this case with the knowledge of the above purpose and receives money and valuables from the Libers Korea, the plaintiff is ① a person who has a substantial authority to choose the early use at the National University Hospital, ② the plaintiff does not directly observe the conditions of the patient who has administered the early administration and make a report on the fact that he has a nurse who lacks expertise in the side effects of the early administration, but did not make a report on the fact that he has made a report on the fact that he did not actually participate in the preparation of the documentary report under each of the contracts of this case. In light of these circumstances, the plaintiff seems not to have actually participated in the preparation of the documentary report. ④ Despite the fact that the plaintiff is the actual subject to the actual allocation of profits under each of the contracts of this case, the plaintiff concluded part of the contract in the name of another doctor, the plaintiff is not a survey and research on the plastic side effects, but it is reasonable to conclude that the purpose of each of the contracts of this case is to pay the plaintiff the money and valuables of this case to the plaintiff for the use of 000.

2) Whether money or goods, such as a meal support fund, fall under the scope of a private funeral ceremony

As seen above, in full view of the following facts: (a) the Plaintiff received money and valuables from Mebes Korea in relation to his duties over a long period of time; (b) the Plaintiff’s money and valuables that the police investigation process conducted by Mesbes Korea are KRW 1 million; (c) the amount of money and valuables that the Plaintiff received from Mesbes Korea in relation to the Plaintiff’s duties in the course of the police investigation process exceeds KRW 5 million; and (d) the amount of money and valuables that the Plaintiff received in relation to the Plaintiff’s duties, other than the Plaintiff, exceeds KRW 30 million; and (e) the Plaintiff received money and valuables that the Plaintiff received from Mes Korea in relation to Mesbes Korea, shall not be deemed to fall under the scope of private precedents.

3) Sub-decisions

Therefore, this part of the Plaintiff’s assertion that there is no ground for disposition is acceptable, since all of the grounds for disposition of this case are recognized.

(e) Whether deliberation and resolution procedures should be followed by the Central Medical Examination and Conciliation Committee;

Article 32(2) of the Enforcement Decree of the Medical Service Act provides that the Central Medical Examination and Conciliation Committee shall deliberate and decide on whether or not the act constitutes injury to dignity, if there is doubt as to whether or not the act constitutes injury to dignity of a medical person. Thus, it is not necessary to deliberate and decide on all acts of injury to dignity of a medical person, but to deliberate and decide on whether or not there

However, as seen in the above facts, the Plaintiff received a disposition of suspension of indictment from a prosecutor on the premise that the grounds for the disposition of this case are recognized after being investigated by an investigative agency. Considering such circumstances, barring any special circumstance to suspect that the prosecutor's disposition of suspension of indictment was erroneous, it cannot be deemed that there is a doubt as to the existence of the grounds for the disposition of this case.

Therefore, this part of the Plaintiff’s assertion cannot be accepted, on the ground that the Defendant did not undergo deliberation and resolution by the Central Medical Examination and Conciliation Committee in rendering the instant disposition.

(f) Whether the discretionary authority is deviates or abused;

1) Even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance, it has no effect to externally bind citizens or courts since it is nothing more than setting the administrative agency's internal rules for handling affairs, and whether such disposition is legitimate or not must be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes, not only the above criteria for disposition, but also the above criteria for disposition. Thus, the above criteria for disposition cannot be deemed legitimate immediately because they meet the above criteria for disposition. However, barring any reasonable ground to believe that the disposition is not in itself consistent with the Constitution or laws, or that a punitive administrative disposition in accordance with the above criteria for disposition is considerably unfair in light of the contents and purport of the relevant Acts and subordinate statutes, it shall not be determined that the disposition is an abuse of discretionary authority (see Supreme Court Decision 2007Du6946, Sept. 20, 2007).

2) On the instant disposition, the Defendant set the period of suspension of license in accordance with the disposition standards stipulated in Article 4 [Attachment Table] 1(c)(1) and 2(a)(26) of the Regulations on Administrative Measures Concerning Medical Services (amended by the Ordinance of the Ministry of Health and Welfare No. 383, Jan. 30, 2007); the Plaintiff’s act of receiving money and valuables from a pharmaceutical company in return for the use of drugs by the pharmaceutical company as the Plaintiff’s act is not only impeding fair competition in the market; the Plaintiff’s act of receiving money and valuables in return for the use of drugs; but also, the Plaintiff’s act of raising the patient’s burden by reflecting the prices of drugs provided by the pharmaceutical company; thus, the illegality of the above act cannot be said to be low; the amount of money and valuables received by the Plaintiff in relation to the duties of the pharmaceutical company exceeds 30 million won; and all other circumstances revealed in the oral proceedings of this case cannot be deemed to be excessively excessive and abused by considering all other circumstances asserted by the Plaintiff

Therefore, the plaintiff's assertion on this part cannot be accepted.

3. Conclusion

Therefore, the disposition of this case is legitimate and dismissed, and the judgment of the court of first instance is unfair, and it is so revoked the judgment of the court of first instance and dismissed the plaintiff's claim. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Gangnam-gu (Presiding Judge)