2. On September 11, 2016, the summary of the facts charged in the instant case is as follows: (a) the Defendant: (b) 602 victim C (the age 16) who drinking alcohol and drinking alcohol together with the victim “Eel” located in D through Young-si (hereinafter “the instant telecom”); and (c) she off the victim’s fright and panty; and (d) she inserted the Defendant’s sexual organ into the part of the victim’s sound.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental or physical loss or non-refluence status.

3. Determination

A. Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits an indecent act by taking advantage of the person’s mental or physical loss or incompetence status shall be punished as the crime of rape or forced indecent act under Articles 297 and 298 of the Criminal Act. Here, the term “a state of resistance impossible.”

Article 297 and Article 298 of the Criminal Act refer to cases where psychological or physical resistance is absolutely impossible or substantially difficult due to reasons other than loss of mental or physical mind (see Supreme Court Decision 98Do3257, May 26, 2000, etc.). Meanwhile, the burden of proving the facts charged in a criminal trial exists for the prosecutor, and the conviction is based on the evidence with probative value, which makes it possible for the judge to have the authenticity of the facts charged to the extent that there is no reasonable doubt, and if there is no such proof, the conviction cannot be determined even if there is suspicion of guilt against the defendant (see, e.g., Supreme Court Decision 2015Do11428, Feb. 18, 2016).