• The Korean Society of Law and Medicine
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• v.23 no.2
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• pp.3-36
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• 2022

In order to solve the pharmaceutical kickback problem, it is needed to establish legal system that allow ways to enable pharmaceutical promotion of medicines without kickbacks as well as provide sanction those who commit illegal act. Before the National Assembly and the government focused on strengthening sanctions. As a result, in 2014, a system of suspending medical care benefits was introduced, which could inflict heavy losses on pharmaceutical companies by withdrawing target medicines from the market. However, three years after the introduction, the system was abolished in 2018, recognizing the problem that the disposition could infringe on the patients' right to access to and choice of medicines. In 2021, the National Assembly made it possible for dispositions suspending medical care benefits regarding the third violation, which remained symbolic until then, replaced with administrative fines. Although the legislator's reflective stance on the system is more than clear, the Ministry of Health and Welfare still interprets that the old law should be applied to kickbacks for the period of the law. Moreover, regarding the substitution of fines at the discretion of the Minister of Health and Welfare under the old law, the narrow standards taken under the old law seems to be maintained. In this paper, firstly pharmaceutical kickback issue, the main reason for the introduction of the system, will be explained, after that the history of introduction and abolition of the system examined and last but not least the unconstitutionality of the system and the illegality of the disposition are to be examined.

• Health Policy and Management
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• v.21 no.1
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• pp.132-157
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• 2011

The purpose of this article is to examine the cause of policy non-compliance in the case of pharmaceutical rebates from the perspective of rational choice institutionalism. In Korea, there have been rebates practices between pharmaceutical companies and hospitals since the introduction of the Actual Remuneration System for insured medicine in 1999. The government has chosen the policy means of punishment to eliminate pharmaceutical rebates but the illegal practices are still widespread. Institution in rational choice institutionalism usually reflects the incentives and preferences of actors, and the Actual Remuneration System has resulted in a the lack of procedures to ensure savings on drug expenditures. Pharmaceutical rebates are the product of the institutions which reflect their incentives: the Actual Remuneration System, the current pricing policy for generic drugs, the drug distribution system, and so on. In the end, the problem of the rebates is the consequence of policy non-compliance as actors' rational choice because their incentives lead to opportunistic behaviors. We should therefore understand the incentive structure of policy stakeholders, which is derived from the view of new institutionalism; also, the newly designed Korean drug pricing policy reform must be compatible with the incentive structure.