The judgment of the court below is reversed.

The defendant shall be innocent.

Summary of Reasons for appeal

A. At the time of misunderstanding of facts or misunderstanding of legal principles, the victim was able to make a sexual decision by misunderstanding of facts or sexual intercourse with the victim.

Therefore, the judgment of the court below which found the defendant guilty of the facts charged is erroneous in the misapprehension of the legal principles as to mistake of facts or rape, which affected the conclusion of the judgment.

B. The sentence of the lower court’s improper sentencing is too unreasonable.

2. Determination as to the misapprehension of facts or misapprehension of legal principles

A. The summary of the facts charged was around 23:00 on April 17, 2014, the Defendant: (a) completed a part-time feet with the victim C (n, 18 years of age) of another part-time feet with his/her part-time feet; and (b) performed drinking together; (c) on April 18, 2014, the Defendant her part-time feet with the victim’s part-time feet with the Defendant located in Dongjak-gu Seoul Metropolitan Government D; (d) her part-time feet with the victim’s part-time feet with his/her part-time feet; and (e) her part-time feet was inserted into the victim’s part-time feet.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's non-refluence condition.

B. Article 299 of the relevant legal doctrine 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 from resistance shall be punished as committing rape, similar rape, or indecent act by force under Articles 297, 297-2, and 298 of the Criminal Act.

“........”

Here, “the state of resistance” refers to cases where psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than the loss of body or body in balance with Articles 297, 297-2, and 298 of the Criminal Act (see Supreme Court Decision 2012Do2631, Jun. 28, 2012). The recognition of conviction in a criminal trial ought to be based on evidence with probative value that leads a judge to have a conviction that the facts charged are true to the extent that there is no reasonable doubt, and thus, if there is no such evidence, there is no such evidence.