Supreme Court: "‘Munjeon Yakguk’ Disrupts Market Order... Constitutes Solicitation"

Court: "Providing vehicles infringes patients' pharmacy choice rights... Consumer inducement"
1st trial: "Solicitation to attract patients" → 2nd trial: "No proof of pharmacy choice infringement"

[Asia Economy Reporter Heo Kyung-jun] The Supreme Court has ruled that pharmacists at so-called ‘doorstep pharmacies’ near general hospitals who hire guides to direct patients to specific pharmacies and provide vehicles free of charge are engaging in solicitation, which violates the Pharmaceutical Affairs Act.

This ruling clearly declares that even if pharmacists at doorstep pharmacies lure patients based on mutually agreed standards, it still constitutes ‘solicitation’ prohibited by the Pharmaceutical Affairs Act.

The Supreme Court’s 2nd Division (Presiding Justice Cho Jae-yeon) overturned the lower court’s acquittal on July 12 in the appeal trial of A and others, who were charged with violating the Pharmaceutical Affairs Act, and remanded the case to the appellate court.

The pharmacy operators, including A, were prosecuted for entering into a service outsourcing contract in July 2017 with a service company to jointly hire guides who would direct so-called ‘non-designated patients’?patients whose prescriptions were not sent to any pharmacy?in a predetermined order to 16 member pharmacies.

The former Pharmaceutical Affairs Act stipulates that pharmacy operators must not engage in unfair methods such as providing gifts like current products or souvenirs, soliciting consumers or patients, or selling pharmaceuticals below the actual purchase price, as these disrupt the pharmaceutical market order or lure consumers.

The guides hired by A and others were investigated for approaching patients at a hospital in Songpa-gu, Seoul, asking questions like “Have you designated a pharmacy? Would you like me to guide you to one?” and directing them to A’s pharmacies according to the assigned order, thereby engaging in solicitation.

The key issue in the trial was whether the solicitation prohibited by the Pharmaceutical Affairs Act was recognized.

The first trial court found A and others guilty, ruling that “since the act influences the choice of pharmacy by an unspecified majority of patients, it constitutes solicitation to attract patients.”

On the other hand, the appellate court acquitted them, stating, “It was not proven that the joint guide system constituted solicitation or that it infringed on the free choice of pharmacies by an unspecified majority of patients or disrupted the order of pharmaceutical sales.”

However, the Supreme Court’s judgment differed. The court stated, “Approaching patients who have not designated a pharmacy and guiding them to pharmacies in their assigned order while providing convenience vehicles is highly likely to infringe on patients’ freedom to choose pharmacies,” and “The pharmacies colluded for profit to guide non-designated patients only to their pharmacies, which can be seen as a form of ‘joint solicitation.’”

Furthermore, the court ruled, “Providing convenience vehicles to patients can be a significant factor in their choice of pharmacy, and this is likely to harm the pharmaceutical market order, especially in relation to other pharmacies located near tertiary general hospitals.”

This content was produced with the assistance of AI translation services.