The judgment below is reversed, and the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental statements in the grounds of appeal and supplemental statements in the grounds of appeal filed after the deadline for submitting the grounds of appeal).

1. The summary of the facts charged in this case against the defendant is as follows.

The Defendant, at around 23:00 on April 17, 2014, had a victim C (the 18 years of age) who is a part-time student and a part-time employee, had the victim drink while drinking much alcohol. On April 18, 2014, at around 01:00, the Defendant got the victim from drinking at the Defendant’s own initiative located in Dongjak-gu Seoul Metropolitan Government D, and went out of the clothes of the victim under the influence of alcohol, and inserted the Defendant’s sexual organ on the part of the victim into the part of the victim, thereby having sexual intercourse with the victim by taking advantage of an impossible state of resistance.

2. On the grounds indicated in its reasoning, the lower court reversed the first instance judgment convicting the Defendant of the charge of the crime of quasi-rape, and found the Defendant guilty of the attempted quasi-rape on the grounds that there was no proof of crime as to the fact that the Defendant attempted to have sexual intercourse with the victim by knowing the victim’s resistance impossible condition of the victim who was in the influence of alcohol, but the Defendant inserted his own sexual organ into the victim’s negative organ, thereby committing the crime of quasi-rape.

3. However, the lower court’s conviction is difficult to accept for the following reasons.

(1) Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits an indecent act by taking advantage of another person’s mental or physical loss or incompetence 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 non-recoverability is called

criminal law does not include mental or physical loss in accordance with Articles 297, 297-2, and 298, where psychological or physical resistance is absolutely impossible or considerably difficult.