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The defendant's appeal is dismissed.
Reasons
Summary of Grounds for Appeal
A. The Defendant, at the time of the misapprehension of the legal principle, was driving 20 meters in order to prevent the risk of accident at the wind that a substitute driver first left on the road and set up on the road, which constitutes an emergency evacuation. Since he returned again to the designated driver again, there was no perception that he is a drinking driving.
Therefore, there is a justifiable reason that the defendant who had already returned home refuses to take a drinking test.
B. The lower court’s sentence of unreasonable sentencing (7 million won of fine) is too unreasonable.
2. Determination
A. In order to constitute “an act with considerable reason” as to the assertion of misapprehension of the legal principles, the “emergency evacuation” under Article 22(1) of the Criminal Act refers to an act with considerable reason to avoid current danger to one’s own or another’s legal interests. The act of escape must be the sole means to protect the legal interests in danger, and the first act of escape must be the only means to protect the legal interests in danger, the second act must be the most minor damage to the victim. Third, the profit preserved by the act of escape should be more superior to the profit that is infringed, and fourth, the act of escape must be the appropriate means in light of social ethics and the spirit of the entire legal order.
In addition, the "act which does not violate the social norms" under Article 20 of the Criminal Act refers to the act which can be accepted in light of the overall spirit of legal order, or the social ethics or social norms, as well as the legitimate act that does not violate the social norms, and whether the illegality of a certain act is excluded as a legitimate act that does not violate the social norms should be determined individually by reasonably and reasonably considering the specific circumstances, under the concrete circumstances, the legitimacy of the motive or purpose of the act, the reasonableness of the means or method of the act, and the balance between the third protected interests and the infringed interests;