약국개설등록 신청거부[반려] 처분취소 - 서울행정법원 2001. 8. 17. 선고 2001구17691 판결(1심)과 서울고등법원 2002. 12. 10 선고 2002누7335(1심, 2심) 판결을 중심으로

The study on the Rejection Deposition Cancellation as for the Applying for the Registration of the Opening Pharmacy

&nbsp;&nbsp;In the pharmaceutical affairs law, by the Article 16, Clause 5, Subparagraph 2, it is supposed to refuse the registration of the opening pharmacy, if someone wants to open a pharmacy in the medical institution or the compound of it.<BR>&nbsp;&nbsp;In the case Ⅰ, the plaintiff ( a pharmacist ) applied for the registration of the opening pharmacy in the single building with one story below and four above the ground. The defendant (the administrative agency), however, made a denial of the opening pharmacy based on the pharmaceutical affairs, the Article 16, Clause 5, Subparagraph 2.<BR>&nbsp;&nbsp;In the case Ⅱ, about the possibility of the passing the registration of the opening pharmacy in the compound of the Hanyang University, the court of the first instance approved it, but the high court canceled the former decision based on the pharmaceutical affairs law, by the Article 16, Clause 5, Subparagraph 2.<BR>&nbsp;&nbsp;So I searched both where we can find out the concept of the medical institution described in the pharmaceutical affairs law, by the Article 16, Clause 5, Subparagraph 2, and whether the opening pharmacy registration act is a "binding act" or a "discretion(Ermessen) act", and analyzed for the registration of the opening pharmacy in the pharmaceutical affairs law to be construed strictly considering the freedom of the business guaranteed constitutionally.<BR>&nbsp;&nbsp;After searching the two cases, I studied on what is the alternative to complement the pharmaceutical affairs law, the Article 16, Clause 5, Subparagraph 2 with the traditional interpretation methodology of the law.<BR>&nbsp;&nbsp;Interpreting the meaning of the pharmaceutical affairs law, the Article 16, Clause 5, Subparagraph 2 literally, it has another conclusion unlike our thinking to approve the registration of the opening pharmacy in the single building.<BR>&nbsp;&nbsp;Therefore if the court interprets not based on the literal standard but based on the alternative about the conceptive important factors to the interpretation in the pharmaceutical affairs law, by the Article 16, Clause 5, Subparagraph 2, Ⅰ think we will be able to assent to the result of the judgement about both the case Ⅰ and the case Ⅱ.<BR>&nbsp;&nbsp;I feel the lack of not showing the clear interpretation standard with some conceptive factors, in court, as to whether the opening pharmacy is allowed in the single building or not allowed in the compound of the university. And then we should establish the standard that the opening pharmacy is allowed or not.<BR>&nbsp;&nbsp;In conclusion, I wish the pharmaceutical affairs law, by the Article 16. Clause 5, Subparagraph 2 become the interpretation standard to the medical officer of Seoul, Kwangyeoksi(metropolitan cities), Si(towns), Do(provinces). Gun(countries).