食品과 醫藥品의 槪念 및 그 區別基準에 관하여

While the food is governed by the Food and Hygiene Act, the drug is regulated more sternly over its production and distribution through the Pharmaceutical Affairs Law. This means that the products on the market are differently treated how they are captured under the statutory definition. For this reason, it is indispensable to distinguish the concept of food-drug, which is prerequisite to apply a relevant law. In applying the acts, we can identify two perspectives to classify the nature of products where they focus either on the formal aspect or on the substantial elements. The latter view, cherishing the substantial elements of products, could cover a subset of arguments. One can be termed “objective standard” which looks into the products as defined by the natural science. The other can be termed “subjective standard” as narrowly sticking to the product's utility. Advocates for the subjective standard also diverge as to whose recognition or intent is critical to give the status as drug. Some view places an importance on the producer's whereas others rely on the common recognition or intent from the ordinary citizens. The court holdings and majority view espouse the subjective standard in line with the second principle of ordinary citizens. However, I would argue that entire support for the specific viewpoint could harm a proper application of acts. As the concept concerning the food-drug is instrumental to apply laws, we need to see the products at issue more flexibly. In my opinion, The concept of food-drug could vary in accordance with the sort of acts and articles. Especially, it is unreasonable to deal with the civil or criminal liability for manufacture of drug according to the majority view, because it cannot properly address the call of justice. And it is also unreasonable to deal with the criminal liability for indication and advertisement of food according to the majority view, because it cannot properly reflect the logicial structure of statute.