In a case where the defendant driving a motor vehicle: (a) sent a substitute driver to return to his/her country while driving his/her motor vehicle; (b) a substitute driver left the road to his/her destination while driving his/her motor vehicle from the road to the destination, resulting in disagreement with the defendant; and (c) he/she stops his/her motor vehicle, and (d) was indicted for violating the Road Traffic Act by driving the motor vehicle at approximately 3 meters of the above road while under the influence of alcohol level 0.097%, the case holding that the defendant's act of driving the motor vehicle as above constitutes an emergency evacuation under Article 22 (1) of the Criminal Act, on the ground that it is an act to avoid danger to his/her own or others' legal interests and therefore,

The defendant driving a motor vehicle: (a) sent a substitute driver to return to his/her country while driving his/her motor vehicle; (b) the person driving a motor vehicle starts on the road and stops his/her own motor vehicle while driving the motor vehicle to his/her destination; and (c) the person driving a motor vehicle stops his/her motor vehicle after stopping his/her motor vehicle, and (d) was prosecuted for violating the Road Traffic Act by driving his/her motor vehicle on the road at approximately three meters of alcohol level while under the influence of alcohol level 0.097%.

The case holding that the defendant's act of driving a vehicle is no more than 3 meters in light of the fact that the defendant's act of driving a vehicle is no more than 10 meters in the front and rear side of the defendant's vehicle, and the defendant's act of driving a vehicle is no more than 2 meters in light of the legal interests and interests of the defendant's vehicle, since the vehicle's act of driving a vehicle in front of the defendant's vehicle leads to a narrow width where it is impossible to cross the vehicle in both directions, and the vehicle's front side of the vehicle in front of the defendant's vehicle when stopping the vehicle. The defendant's act of driving a vehicle in front of the defendant's vehicle in order to secure another's life and the right side of the vehicle in front of the vehicle in front of the defendant's vehicle in order to reduce traffic interference and danger, and it is more likely that the defendant's act of driving a vehicle in front of the vehicle in front of the vehicle in front of the defendant's vehicle in order to avoid the danger of driving a vehicle in front of another person's vehicle.

Article 22(1) of the Criminal Act; Articles 44(1) and 148-2(3)2 of the Road Traffic Act; Article 325 of the Criminal Procedure Act

Defendant

Landscape Profit et al.

Law Firm Law Firm Law, Attorney Ansan-sung

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged in this case

On November 9, 2019, at around 23:02, the Defendant driven (vehicle number omitted) car at the section of about 3 meters on the street in Seoul ( Address omitted), while under the influence of alcohol of 0.097% of blood alcohol level.

2. Defendant and his defense counsel’s assertion

The drinking driving of a defendant constitutes an emergency evacuation under Article 22 (1) of the Criminal Act, and thus the illegality of the defendant is excluded, and it does not constitute an offense.

3. Determination

A. The "emergency evacuation" under Article 22 (1) of the Criminal Code refers to an act with a reasonable reason to avoid the present danger to his or another person's legal interests, and in order to constitute "an act with a reasonable reason," the act of escape should be the only means to protect the legal interests in danger, the act of escape should be the only means to protect the legal interests in danger, the second victim should be the most minor damage. Third, the profit to be compensated by the act of escape should be more superior to the profit that is infringed by it. Fourth, the act of escape must be a proper means in light of social ethics or the overall spirit of legal order (see, e.g., Supreme Court Decision 2005Do9396, Apr. 13, 206).

B. In light of the above legal principles, in full view of the facts and circumstances acknowledged by the evidence adopted and examined by the court in this case, the Defendant appears to have not expressed any intention to drive the vehicle any more than 3 meters of the vehicle at the right edge of the first road (hereinafter “the road in this case”) in order to reduce traffic interference and risk of accident. In light of the Defendant’s blood alcohol concentration at the time, the distance from which the vehicle was moved, the shape of the road in this case, and the traffic conditions of other vehicles, etc., the risk of another’s life and safety caused by the Defendant’s act is deemed not to have been much significant, while the legal interests secured by the Defendant’s act were more likely to have been infringed than the above infringement interest.

Therefore, the defendant's act of driving as stated in the facts charged of this case is an act to avoid the present danger to his or other person's legal interests, and therefore, it constitutes an emergency evacuation under Article 22 (1) of the Criminal Act.

1) The Defendant: (a) sent a substitute driver to return home while drinking; (b) sent a substitute driver through a mobile fluencing system, which was frequently used by the Defendant; and (c) the said substitute driver, starting from the road of this case to the destination during the course of temporarily driving, brought an objection to the Defendant’s objection to the route from the road of this case to the destination; and (d) left the vehicle as it was, after stopping the vehicle.

2) The above stop location is a one-lane in a narrow narrow width that is unable to pass along the two directions and a road leading to action. When stopping is continued, the vehicle that the Defendant intends to move along the front side of the vehicle and the vehicle that the Defendant intends to enter into the vehicle in front of the Defendant’s vehicle is obstructed. Ultimately, the Defendant’s vehicle is placed in a situation that obstructs traffic in the front and rear side of the vehicle.

3) In fact, immediately after a substitute driver left the vehicle and left the vehicle, the course of the vehicle trying to move from the rear side of the defendant's vehicle was obstructed, and the defendant seems to have attempted to move from another substitute driver while seeking understanding of the driver of the above vehicle by getting on the front from the front, and the defendant was driving to secure a career space only when he appeared in the taxi seeking to enter the vehicle in front of the defendant's vehicle.

4) The Defendant, at the place where a proxy driver stopped, driven approximately three meters in front of the right side and stopped the vehicle at the point at which the edge of the instant road is completed, thereby making it possible for the Defendant to walk one vehicle. Accordingly, the said taxi first entered the instant road and went into the instant road, and then the said car could move into the action.

5) After stopping the vehicle, the Defendant immediately left the vehicle and helps the vehicle to pass through the said taxi and the vehicle. The Defendant was under the influence of drinking by a police officer called out after receiving a report from an acting driving technician who has been observing the Defendant’s driving in the vicinity.

6) At the time, there was no person or day-to-day who can request the driving of the Defendant, and it would have been practically difficult for the Defendant to request the driver or the surrounding driver of the said passenger car and the taxi to drive the taxi. Moreover, the situation where the risk of traffic interference and accident could have been urgent in the time of waiting another substitute driver to leave and arrive until the arrival.

7) On the other hand, the situation in which the defendant aggressively expressed an attack to a substitute driver in the course of getting off, leaving off, or reporting the police.

4. Conclusion

Thus, since the facts charged in this case do not constitute a crime, the defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant is publicly notified pursuant to Article 58 (2) of the Criminal Act, and it is so decided as per Disposition.

Judges Dok-il