A. The court below erred by misapprehending the legal principles and finding the Defendant guilty of all the charges of the Defendant, although the victim did not have been unable to resist due to mental disability at the time of the instant case, and the Defendant did not have sexual intercourse by taking advantage of the victim’s failure to resist.

B. The lower court’s sentencing (three years of imprisonment, five years of suspended execution) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts and misapprehension of legal principles, the phrase “the state of disability or mental disability is in the state of failing to resist” in the relevant legal principles should be deemed to include not only the state of physical disability or mental disability in itself, but also the case where psychological or physical disability or mental disability is the main cause and thus makes it impossible or considerably difficult to resist. In determining whether there is a state of failing to resist, it should be comprehensively examined not only the mental disability of the victim, but also the relationship between the victim and the perpetrator, including the status of the perpetrator, surrounding circumstances or environment, the content and method of the perpetrator’s act, and the perception and response of the victim.

(2) In light of the above legal principles and records, the judgment of the court below is justified, and there is no error in the misapprehension of legal principles which affected the conclusion of the judgment. It is so decided as per Disposition by the assent of all participating Justices. It is so decided as per Disposition by the assent of all participating Justices on the bench.

B. The Defendant’s judgment on the assertion of unfair sentencing is the instant case.