The defendant's appeal is dismissed.

1. Summary of grounds for appeal (misunderstanding of facts and improper sentencing);

A. Fact misunderstanding 1) The Defendant had sexual intercourse under the agreement with the victim, and the victim did not have any mental or physical loss or resistance at the time of the instant case.

Even if the victim was physically and mentally deprived or unable to resist,

Even though the defendant was unaware of this, the victim was aware that he responded to sexual intercourse.

2) The Defendant’s response to the sexual intercourse is that he would not make a main door or delete images.

In fact, it was true that it was only false, but it was also accepted by the victim, and therefore, the defendant threatened the victim.

There is no fact that the victim's fingers can be put into the negative part of the victim.

B. The sentencing of the court below (the order to complete sexual assault treatment programs with 2 years and 6 months and 40 hours of imprisonment) is too unreasonable even if the defendant's act of sentencing is found guilty.

2. Determination

A. 1) Article 299 of the Criminal Act provides that a person who has sexual intercourse or indecent act by taking advantage of a person’s mental or physical loss or incompetence status shall be punished as the crime of rape or indecent act by force under Articles 297 and 298 of the Criminal Act. Here, the case is one of the impossible situations.

The term “accompetence” means a case in which psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than loss of mind and body in balance with Articles 297 and 298 of the Criminal Act (see, e.g., Supreme Court Decision 2010Do7403, Sept. 9, 2010). Whether a perpetrator’s intimidation was made to establish the crime of rape shall be determined based on the specific circumstances in which the victim was faced at the time of sexual intercourse, taking into account not only the content and degree of the intimidation, but also the developments leading up to the exercise of force, the relationship with the victim, and the circumstances at the time of sexual intercourse, etc., and the victim may escape from the scene before sexual intercourse.