A. Although the defendant was exempted from the victim of mistake of facts, he did not completely obstruct sexual intercourse.

B. The Defendant was under the influence of alcohol at the time of committing the instant crime, and was in a state of mental disability.

C. The decision of the court below on the grounds that the sentence of unfair sentencing (three years of imprisonment, etc.) is too unreasonable.

2. Determination

가. 피고인의 사실오인 주장에 관하여 원심이 적법하게 채택, 조사한 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피해자가 경찰에서, 피해자가 잠들었는데 갑자기 뭐가 음부에 쑥 들어왔고, 깜짝 놀라 눈을 떴더니 피고인이 피해자 몸 위에 올라가 있었으며 그 성기를 피해자 음부에 넣은 느낌이 들었다고 진술한 점(증거기록 18~19쪽), ② 피해자가 피해를 입은 후 소변을 보고 나서 음부를 휴지로 닦아 그 휴지를 보관하다가 이를 경찰에 제출하였는데(증거기록 30쪽), 이러한 정황이 피해자 진술의 신빙성을 뒷받침하는 점을 종합하여 보면, 피고인이 성기를 피해자 음부에 삽입한 사실을 인정할 수 있다.

Defendant

Even if the entire sexual flag was not inserted in the victim’s negative book, as long as the Defendant’s sexual organ was inserted in the victim’s negative book even if some of the sexual organ was inserted in the victim’s negative book, it constitutes a “rape” which is the requisite for the crime of quasi-rape.

Defendant’s assertion of mistake cannot be accepted.

B. According to the record as to the defendant's mental suffering claim, the fact that the defendant was in a state of drinking at the time of the crime of this case is recognized.

However, in light of the following: (a) the Defendant, immediately after committing the crime, took the cellular phone of the victim to be reported to the police, etc.; (b) the Defendant’s personal information upon the arrest of the Defendant as an flagrant offender is false; and (c) the Defendant made a relatively detailed statement about the situation before committing the crime, the Defendant is under the influence of alcohol at the time of committing the instant crime.