around 18:00 on October 9, 2016, the Defendant: (a) granted a victim under the pretext of “shall be in close relationship with the workplace rent before commencing a new work”; and (b) had cnicked with F, a workplace club fee, in neighboring stores in the city of Speaker-si, for the victim to have sexual intercourse with the face-to-faced person.

The Defendant, at around 21:30 on the same day, she taken off the victim’s clothes from Hel 309, G located in Mancheon-si, and she was under the influence of alcohol, and she laid off the victim’s body or instrument with his/her resistance.

Accordingly, the defendant, who had been in an impossible state of resistance, committed similar rape by inserting the victim with his body or tool in an resistance.

2. Determination

A. The facts constituting the elements of a crime charged in a criminal trial should be determined with the burden of proof, whether it is a subjective or objective element, and the recognition of facts constituting a crime should be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the degree of conviction as above, even if the defendant’s assertion or defense is contradictory or uncomfortable, and there is suspicion of guilt, such as where the defendant’s assertion or defense is inconsistent or unreasonable (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 201). Meanwhile, Article 299 of the Criminal Act provides that a person who has sexual intercourse or indecent conduct by taking advantage of a person’s condition of loss of mental or physical health or resistance shall be punished as the crime of rape, similar rape or coercion under Articles 297, 297-2 and 298 of the Criminal Act, and this provision provides for punishment in this context.