Article 5(1) ban limited to each handler's permitted handling types

1. 01Question

   Under Article 5(1) of the former Narcotics Control Act, are the acts it forbids a narcotics handler to do for a purpose outside the work, that is, the acts of the kinds in Article 4(1), limited to the types of handling permitted to that category of handler under Article 2(v), and does a doctor who injects a narcotic or psychotropic into a patient for such a purpose violate that Article as an act of administering and as an act of selling?

2. 02Holding

   They are so limited. The conduct forbidden by Article 5(1) reaches only the handling types that Article 2(v) permits for that category of narcotics handler, so a handler who does an act outside the permitted types for a purpose outside the work cannot be punished under that Article. An injection of a narcotic or psychotropic into a patient as part of medical practice falls in principle within the permitted type of administering or providing for medical purposes, so such an injection for a purpose outside the work may be an act of administering under Article 4(1)(i) and a violation of Article 5(1); but because the Act provides for administering and selling separately and does not include selling among the permitted types, the same injection is in principle not a violation as an act of selling, absent special circumstances.

   Summary of the holding, verbatim

   이와 같은 구 마약류관리법의 규정 체계, 각 조항의 수범자 및 문언 내용 등을 고려하면, 구 마약류관리법 제5조 제1항에서 마약류취급자에 대하여 금지하는 행위인 ‘업무 외의 목적을 위한 제4조 제1항 각 호에 규정된 행위’는, 위 조항의 수범자인 같은 법 제2조 제5호의 해당 마약류취급자별로 허용된 취급 행위 유형에 한정되어야 한다.

   Unofficial English translation

   Considering the normative structure of the former Narcotics Control Act, the addressees of each provision, and the wording of each provision, the act prohibited by Article 5, paragraph (1) of the former Narcotics Control Act to a handler of narcotic drugs, etc., namely an 'act provided for in each subparagraph of Article 4, paragraph (1) for a purpose other than work,' must be limited to the types of handling activities permitted for each relevant handler of narcotic drugs, etc. under Article 2, subparagraph 5 of the same Act, which is the addressee of the above provision.

3. 03Disposition

   Dismissed Stated in the decision

   상고를 모두 기각한다.

   Unofficial English translation

   All appeals are dismissed.

4. 04Form of the test

   Elements stated Stated in the decision

   마약류취급자가 업무 외의 목적을 위하여 같은 법 제2조 제5호에 규정된 자신에게 허용된 취급 행위 유형에 해당하지 않는 행위를 한 경우에는 같은 법 제5조 제1항이 적용되지 않는다.

   Unofficial English translation

   Where a handler of narcotic drugs, etc., for a purpose other than work, commits an act that does not fall under the type of handling activity permitted to that person as provided in Article 2, subparagraph 5 of the same Act, Article 5, paragraph (1) of the same Act does not apply.

5. 05Factors

   • 구 마약류관리법의 규정 체계, 각 조항의 수범자 및 문언 내용 등을 고려하면
   • 마약류취급자가 업무 외의 목적을 위하여 같은 법 제2조 제5호에 규정된 자신에게 허용된 취급 행위 유형에 해당하지 않는 행위를 한 경우에는
   • 이러한 의료법 및 약사법, 구 마약류관리법의 규정 체계와 내용, 의료행위의 본질, 보건위생에 관한 의사의 전문지식과 자격 등을 종합하여 보면
   • 구 마약류관리법이 ‘투약’ 행위와 ‘매매’ 행위를 별도로 규정하면서 마약류취급의료업자에게 허용된 취급 행위 유형에 ‘매매’ 행위를 포함시키지 않고 있으므로

   Unofficial English translation

   • Considering the normative structure of the former Narcotics Control Act, the addressees of each provision, and the wording of each provision,

   • Where a handler of narcotic drugs, etc., for a purpose other than work, commits an act that does not fall under the type of handling activity permitted to that person as provided in Article 2, subparagraph 5 of the same Act,

   • In light of these factors taken together, namely the normative structure and content of the Medical Service Act, the Pharmaceutical Affairs Act, and the former Narcotics Control Act, the essence of medical practice, and the professional knowledge and qualifications of doctors concerning health and hygiene,

   • Because the former Narcotics Control Act separately stipulates the act of 'administration' and the act of 'sale and purchase' and does not include the act of 'sale and purchase' among the types of handling activities permitted to a medical business operator handling narcotic drugs, etc.,

6. 06Relation to precedent

   States a new standard Read from the decision

   구 마약류관리법 제5조 제1항에서 마약류취급자에 대하여 금지하는 행위인 ‘업무 외의 목적을 위한 제4조 제1항 각 호에 규정된 행위’는, 위 조항의 수범자인 같은 법 제2조 제5호의 해당 마약류취급자별로 허용된 취급 행위 유형에 한정되어야 한다.

   Unofficial English translation

   The act prohibited by Article 5, paragraph (1) of the former Narcotics Control Act to a handler of narcotic drugs, etc., namely an 'act provided for in each subparagraph of Article 4, paragraph (1) for a purpose other than work,' must be limited to the types of handling activities permitted for each relevant handler of narcotic drugs, etc. under Article 2, subparagraph 5 of the same Act, which is the addressee of the above provision.

   Decisions referred to

   해당 본문 참조

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   What special circumstances would make a doctor's injection of a narcotic or psychotropic into a patient for a purpose outside the work an act of selling under Article 5(1) of the former Narcotics Control Act?

   A later Supreme Court decision defining the special circumstances left open on the selling charge would change how this entry reads the rule. So would an amendment to Article 2(v) or Article 5(1) by the Act of 6 February 2024 (Act No. 20214), or new material showing that an injection had wholly left the sphere of medical practice, since the permitted handling type turns on that.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.