Nevertheless, the lower court determined otherwise that the Defendant intended to have sexual intercourse by taking advantage of the victim’s mental or physical loss or resistance.

In light of the facts charged of attempted quasi-rape, the lower court erred by misapprehending the legal doctrine on the state of mental and physical loss or non-competence in the crime of rape by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine on the state of quasi-rape.

The defendant's defense counsel stated at the first trial date that the sentencing was added as the grounds for the preliminary appeal, but the defendant's defense counsel raised after the lapse of the period for submitting the reasons for appeal, which is not a legitimate reason for appeal.

2. Determination

A. In light of the difference between the first instance court and the appellate court’s method of evaluating credibility in accordance with the spirit of substantial direct deliberation adopted by the Korean Criminal Procedure Act as an element of the trial-oriented principle, the first instance court’s decision on the credibility of the statement made by the witness at the first instance court was clearly erroneous in light of the content of the first instance judgment and the evidence duly examined in the first instance court’s first instance trial.

Unless there are extenuating circumstances to see that maintaining the first instance judgment on the credibility of the statement made by the witness of the first instance court is significantly unfair, the appellate court has credibility of the statement made by the witness of the first instance court, unless there are exceptional circumstances to see that it is remarkably unfair to maintain the first instance judgment on the credibility of the statement made by the witness of the first instance court until the closing of the pleadings.