At around 22:20 on the same day, the Defendant: (a) reported the form that the victim was drunkly drunk and expected to have his body followed it by nearly rarely in the garment seat set up in front of the school harmony; (b) made the victim’s fingers into clothes and her fingers, and met with the victim’s chests and her fingers.

Accordingly, the defendant committed indecent acts by taking advantage of the victim's mental or physical state of difficulty.

2. Determination

A. At the time of the instant case’s assertion, the victim was not in the state of mental or physical disability or impossibility to resist, and only the Defendant made physical contact under the agreement with the victim.

B. Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits an indecent act by taking advantage of the condition of a person’s mental disorder or impossibility to resist shall be punished as the crime of rape or indecent act under Articles 297 and 298 of the Criminal Act.

Here, the state of impossibility to resist refers to the case where psychological or physical resistance is absolutely impossible or considerably difficult due to the reason other than the defect in accordance with Articles 297 and 298 of the Criminal Code.

(See Supreme Court Decision 98Do3257 delivered on May 26, 2000, etc.). In addition, in a criminal trial, the burden of proving the facts charged exists for the prosecutor, and the degree of proof ought to be based on evidence with probative value that makes it possible for the judge to have a reasonable doubt that the facts charged are true to the extent that there is no reasonable doubt.

Since the defendant acknowledges that there was sexual contact between the defendant and the victim, the issue of this case is whether the victim was defective or not under the influence of alcohol at the time.