CONTENTS
- 1. Violation of the Pharmaceutical Affairs Act, the Detailed Circumstances
- - Violation of the Pharmaceutical Affairs Act, the Relevant Statutes
- 2. Violation of the Pharmaceutical Affairs Act, the Appellate Court's Determination
- 3. Violation of the Pharmaceutical Affairs Act, Daeryun's Strategy
1. Violation of the Pharmaceutical Affairs Act, the Detailed Circumstances
A, who was brought to trial on charges of violating the Pharmaceutical Affairs Act, was a pharmacy manager operating a pharmacy in Jeju, and was charged with having employed B, who had forged a pharmacist's license.
B needed money because loan debts had accumulated following failed investments, and, drawing on prior experience working at a pharmacy, decided to pose as a pharmacist.
B then found A's pharmacy, which was recruiting a pharmacist on a job-search website, and attended an interview.
At an internet cafe, B searched for and printed a pharmacist's license form bearing the official seal of the Minister of Health and Welfare, attached a personal photograph, added a license number, a name, and a date of birth, and then created a forged pharmacist's license using a multifunction printer.
During the pharmacy interview with A, B submitted this forged pharmacist's license and also falsely claimed to have graduated from a particular pharmacy school and to have three years of experience working at a pharmacy.
Deceived by this, A employed B, and over approximately three years B sold pharmaceuticals worth approximately 1.476 billion won at A's pharmacy.
As a result of this case, B was sentenced to two years' imprisonment on charges of forgery of an official document, uttering a forged official document, fraud, and violation of the Pharmaceutical Affairs Act, and A was also sentenced to a fine of 5 million won with a one-year suspended sentence (a suspended sentence under Korean law, broadly comparable to a suspended sentence or probation in common-law systems, under which the conviction loses its effect once the suspension period passes without incident) on charges of violating the Pharmaceutical Affairs Act.
In response, A appealed, arguing that A “had no knowledge whatsoever that the pharmacist's license presented by B was forged, and was, on the contrary, merely a victim deceived by B.”
Violation of the Pharmaceutical Affairs Act, the Relevant Statutes
As in the above case, a pharmacy manager who employs a person that has forged a pharmacist's license also bears legal responsibility. The reason is that the pharmacy received only a copy of the forged license and did not properly carry out a procedure to verify the pharmacist's license.
The relevant applicable statutes are set out below.
▣ Pharmaceutical Affairs Act Article 6 (Issuance and Registration of Licenses)
(1) When granting a pharmacist's license or an herbal pharmacist's license, the Minister of Health and Welfare shall register the matters concerning the license in the respective registration book and issue the license.
(2) If the license under paragraph (1) is lost or damaged, or if the entries therein change, the license may be reissued.
(3) A pharmacist and an herbal pharmacist shall not lend a license obtained under Article 3 and Article 4 to another person.
(4) No one shall borrow a license obtained under Article 3 and Article 4, nor shall anyone broker the lending of a license.
▣ Enforcement Rule of the Pharmaceutical Affairs Act, Article 11 (Posting of Registration Certificates and Permits)
(2) A pharmacy establisher, or a pharmacist or herbal pharmacist working at a pharmacy, shall post the original of the relevant pharmacist's license or herbal pharmacist's license in a conspicuous place within that pharmacy.
2. Violation of the Pharmaceutical Affairs Act, the Appellate Court's Determination
A, who had been sentenced at the first instance to a suspended fine on charges of violating the Pharmaceutical Affairs Act, was found not guilty on appeal.
The appellate court held that, “insofar as A misperceived B to be a pharmacist and employed B on that basis, A cannot be regarded as having a duty to manage and supervise B at the same level as an ordinary employee,” and found that “the first-instance judgment, which applied the charge of violating the Pharmaceutical Affairs Act on the ground of a breach of the duty to manage and supervise, was not lawful.”
In addition, the fact that B, at A's pharmacy, did not compound pharmaceuticals but handled only the sale of over-the-counter pharmaceuticals and worked independently also served as a basis for the not-guilty judgment.
The court held that “A is a victim who was defrauded by B,” and pronounced that it “reverses the first-instance guilty judgment and finds the defendant not guilty.”
3. Violation of the Pharmaceutical Affairs Act, Daeryun's Strategy
We analyzed the district court's judgment, which at the first instance imposed a suspended fine on the ground that the defendant, on charges of violating the Pharmaceutical Affairs Act, had employed a person holding a forged license, but on appeal returned a verdict of not guilty.
After this case, awareness of the need to verify pharmacist licenses grew among pharmacy managers. The authenticity of matters relating to a pharmacist's license can be checked through the Ministry of Health and Welfare license services website.
If it is revealed that an unqualified person was employed to compound or sell pharmaceuticals, the pharmacy will be subject to a business suspension disposition under Article 76 of the Pharmaceutical Affairs Act, and the pharmacy establisher will also be subject to disposition.
If you have been wrongly charged with violating the Pharmaceutical Affairs Act, you may wish to retain a 🔗medical attorney to proceed with the case.
Daeryun Law Firm LLP, with substantial medical knowledge and experience, and its 🔗Medical Litigation Group, will actively assist clients.
