CONTENTS
- 1. Violation of the Pharmaceutical Affairs Act, What Were the Detailed Circumstances?
- - Violation of the Pharmaceutical Affairs Act, What Are the Relevant Statutes?
- 2. Violation of the Pharmaceutical Affairs Act, What Was the Court's Determination?
- 3. Violation of the Pharmaceutical Affairs Act, What Was Daeryun's Strategy?
1. Violation of the Pharmaceutical Affairs Act, What Were the Detailed Circumstances?
The plaintiff in this administrative litigation concerning a violation of the Pharmaceutical Affairs Act was A, a herbal pharmacist who operated a herbal pharmacy in Daejeon.
Over a period of about seven years, A prepared, without a physician's prescription, weight-loss herbal medicines worth approximately 1.5 billion won in total, and sold them at locations other than the pharmacy through courier delivery.
A was ultimately indicted on charges of violating the Pharmaceutical Affairs Act and was sentenced to one year of imprisonment, suspended for two years.
Three years later, the Ministry of Health and Welfare revoked A's herbal pharmacist license on the ground that A had been sentenced to imprisonment without labor or a heavier punishment.
A then filed an administrative action contesting the disposition.
A argued that the license revocation disposition had been made three years after the judgment imposing a suspended sentence of imprisonment became final, and that, because the two-year suspended sentence period had already elapsed and the pronouncement of the sentence had therefore lost its effect, A was not subject to license revocation.
A also argued that, because the license revocation disposition had not been made even after the suspended sentence period had elapsed, A had come to believe that the herbal pharmacist license was not subject to revocation, and that the disposition was therefore unlawful as a violation of the principle of the protection of legitimate expectations and the doctrine of forfeiture of rights.
Violation of the Pharmaceutical Affairs Act, What Are the Relevant Statutes?
🔗Violation of the Pharmaceutical Affairs Act is a matter of great importance that is directly connected to public health, and the State regulates it strictly.
Under the Pharmaceutical Affairs Act, a person who is not a pharmacist may be punished for violating the Act if that person 🔗lends a license or forges one, or is caught preparing medicines without a license.
In addition, even if a licensed pharmacist prepares a medicine, providing a patient with a product whose expiration date has passed constitutes a violation of the Pharmaceutical Affairs Act, and lending a pharmacist's license to a person who is not a pharmacist likewise constitutes a violation of the Pharmaceutical Affairs Act.
▣ Article 4 of the Pharmaceutical Affairs Act (Qualifications and License of Herbal Pharmacists) (1) A person who intends to become a herbal pharmacist shall obtain a license from the Minister of Health and Welfare, as prescribed by Ordinance of the Ministry of Health and Welfare. (2) The herbal pharmacist license under paragraph (1) shall be granted to a person who has graduated from a department of herbal pharmacy at a university, has received a bachelor's degree in herbal pharmacy, and has passed the national examination for herbal pharmacists. (3) A person who has not obtained a herbal pharmacist license may not use the title of herbal pharmacist. |
▣ Article 5 of the Pharmaceutical Affairs Act (Grounds for Disqualification) A person who falls under any of the following subparagraphs may not obtain a pharmacist license or a herbal pharmacist license.
4. A person who has been sentenced to imprisonment without labor or a heavier punishment for violating statutes concerning pharmacists, where the execution of the sentence has not been completed or it has not become final that the person will not undergo such execution 5. A person who has committed the crime of fraud under Article 347 of the Criminal Act, has received a license revocation disposition, and for whom three years have not passed, or who has violated statutes concerning pharmacists, has received a license revocation disposition, and for whom two years have not passed |
2. Violation of the Pharmaceutical Affairs Act, What Was the Court's Determination?
The administrative court that heard A's action contesting the revocation of the license, on charges of violating the Pharmaceutical Affairs Act, dismissed all of A's arguments on the merits.
The court held that, “if a herbal pharmacist has been sentenced to imprisonment without labor or a heavier punishment for violating the Pharmaceutical Affairs Act, this constitutes a ground for license revocation, and the fact that the effect of the sentence has been lost because the suspended sentence period has elapsed does not change this.”
The court added that, “even if the license revocation disposition was made after A's suspended sentence period had ended, there is no problem with the application of the relevant statutes.”
The court further explained that, “the mere fact that the license revocation disposition was not made before the suspended sentence period elapsed after A's criminal judgment became final cannot be said to have created in A a legitimate expectation that no license revocation disposition would be issued,” and stated as the grounds for its judgment that, “because the Ministry of Health and Welfare promptly commenced the disposition procedure after becoming aware of A's violation of the law, this does not run counter to the principle of good faith.”
3. Violation of the Pharmaceutical Affairs Act, What Was Daeryun's Strategy?
We analyzed an administrative court judgment holding that, with respect to a herbal pharmacist who had received a criminal punishment for preparing and selling herbal medicines without a physician's prescription, in violation of the Pharmaceutical Affairs Act, the license revocation disposition received after the suspended sentence period had elapsed was lawful.
To respond effectively to both criminal punishment and administrative dispositions when indicted for a violation of the Pharmaceutical Affairs Act, an accurate assessment of the alleged violation and corresponding preparatory measures are important.
For this reason, it is helpful to gather sentencing factors and to seek to reduce the punishment as much as possible with the assistance of attorneys who have specialized knowledge of and substantial experience in medical law.
The 🔗Medical, Bio, and Healthcare Group of Daeryun Law Firm LLP brings together attorneys experienced in Pharmaceutical Affairs Act violations and medical litigation, including attorneys with backgrounds in medical dispute mediation and an attorney who holds a pharmacist qualification, and provides clients with thorough assistance from the stage of establishing negligence onward.
If you need assistance with a related matter, you are welcome to request a legal consultation with Daeryun Law Firm LLP at any time.
