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The defendant's appeal is dismissed.
Reasons
1. Although the driving of the instant case constitutes an emergency escape under the Criminal Act, it does not constitute a crime due to the dismissal of illegality, the judgment of the court below which convicted the Defendant of the facts charged in the instant case is erroneous in the misapprehension of legal principles.
2. Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly admitted and investigated by the lower court, the Defendant’s assertion of misapprehension of the legal doctrine is not acceptable, since the Defendant’s act of driving a motor vehicle under the influence of alcohol constitutes an emergency escape.
Article 22(1) of the Criminal Act refers to an act with a substantial reason to avoid the present danger to his or other person’s legal interests. In order to constitute “an act with a considerable reason,” the act of escape should be the only means to protect the legal interests in danger, and the second one must be the method to inflict the most minor damage on the victim. Third, the profit preserved by the act of escape should be more superior to the profit infringed by it. Fourth, the act of escape must be appropriate in light of social ethics and the overall spirit of legal order (see, e.g., Supreme Court Decision 2005Do9396, Apr. 13, 2006). First, it is examined whether there is a danger to the present legal interests of himself or other person as a requirement of emergency escape.
On-site photographs (Evidence No. 21 of the evidence records, the photographs and trial records No. 15 of the evidence), and the fact that the proxy driver parked the defendant's vehicle in the parking area of the 6th floor underground of the Fuden Social Building by deviating from the parking area is recognized.
However, most of the Defendant vehicles are included in the parking zone, and they do not interfere with the passage of other vehicles, and they are not sloped with the passage of parking lots.
Therefore, the proxy engineer was parked out of the parking area.