The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal: The victim claiming the misunderstanding of the fact stated consistently “Is my memory after entering the Oel,” and did not dnick even when Isn't dn't dn't dn't dn't dn't dn't dn't b

On the other hand, the defendant also stated in the investigative agency that "the victim is drinking alcohol in the Oelel."

Therefore, it is difficult to believe that the Defendant and the victim stated in the lower court’s court that “the victim did not drink the alcohol.”

In addition, according to the Eel CCTV video, the victim was under the influence of alcohol and was able to sit on the floor.

The Defendant also stated that “the victim was getting out of the teel at the time of the arrival of the teel, and the prior convenience store also fell beyond the tetobane.”

Therefore, at the time of the defendant's sexual intercourse with the victim, the part of the facts charged that the victim was unable to resist is proved.

Although the court below found the defendant not guilty of the facts charged, there is an error of law by misunderstanding the facts and affecting the conclusion of the judgment.

2. The Criminal Procedure Act adopts a substantial direct trial principle that the formation of conviction and innocence should be based on a court-oriented trial principle that the evidence directly examined in the presence of a judge can only be based on a court-oriented trial, and the original evidence which is most close to the facts to be proved should be based on a court-oriented trial, and the use of substitute material for original evidence should not be permitted in principle.

The court shall ensure that the above substantial spirit of the principle of direct deliberation is realized in the court of first instance, which is the principle procedure in which the examination of evidence is conducted, focusing on the court in the process of criminal proceedings and the trial process (see Supreme Court Decision 2006Do4994, Nov. 24, 2006). In addition, the criminal appellate court has the character as a follow-up trial even after its existence.