준강간
The judgment of the court below is reversed.
The defendant shall be innocent.
The lower court erred by misapprehending the legal doctrine as to the crime of quasi-rape or by misapprehending the legal doctrine as to the crime of quasi-rape, thereby adversely affecting the conclusion of the judgment, even though the Defendant did not have sexual intercourse, at the time of the instant sex relationship, the victim was not in a state of mental or physical loss or resistance, and the Defendant did not have sexual intercourse by using it.
The punishment of the court below (two years and six months of imprisonment) which is unfair in sentencing is too unreasonable.
Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits an indecent act by taking advantage of a person’s mental or physical loss or incompetence in order to punish him/her as the crime of rape or forced indecent act under Articles 297 and 298 of the Criminal Act. Here, he/she is in an impossible state of resistance.
Article 297 and Article 298 of the Criminal Act refers to cases where psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than loss of mental or physical nature (see Supreme Court Decision 2012Do2631, Jun. 28, 2012, etc.). Facts or circumstances acknowledged by the evidence of the court below, in particular, the victim merely sent friendlyly while working at the defendant at the bar for about one month, and did not have any son. The defendant had a conversation with the victim from around 02:00 on the day of the instant case to around 07:00 on the day of the instant case, but the victim was in a state where she was unable to do so at night due to influence, and the main contents of the said conversation were good for the victim, and the victim’s position and her child-friendly relationship with the investigative agency, and the victim did not have any sexual scambling between the victim and the defendant.