The prosecutor's appeal is dismissed.

The main point of the grounds for appeal (misunderstanding of facts) was that the victim was in a state of mental and physical loss or arbitrariability by drinking at the time of the instant case.

The defendant has sexual intercourse with the victim by taking advantage of the victim's condition.

At the time, the victim had a sexual relationship with the defendant in a locking condition where he was drunk and did not exercise his normal right to make a sexual decision, but did not make a sexual relationship by mistake of the defendant as a male-gu.

Judgment

The summary of the facts charged in this case is the employee of the C'C's main point located under the building located in Gangnam-gu Seoul Metropolitan Government, and the victim D (name, leisure, 32 years old) is the customer of the above main point.

On August 7, 2019, the Defendant, at the 5th place above the new wall around August 7, 2019, failed to shoulder the victim's scam by scaming, thereby requesting the Defendant to do so, and the Defendant was scambling the victim several times, but the Defendant failed to have sexual intercourse with the victim as the victim did not occur.

On August 7, 2019, the Defendant, at around 03:40 on August 7, 2019, had sexual intercourse by inserting a sexual organ into the sound part of the victim under the influence of alcohol in a studio No. 5.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental or physical loss or non-refluence status.

The lower court determined that the victim was in a state of mental or physical loss or in an impossible defense only with the statements made at the investigative agency and court of the victim.

The court below acquitted the defendant on the grounds that there is insufficient evidence to acknowledge it, and there is no other evidence to acknowledge it, and the court below is hard to believe the victim's statement.

The circumstances are as follows:

On August 7, 2019, the victim left 00:20 on August 7, 2019, and the next male-gu left her her her friend, the victim was her friend, but 03:30 on around 03:30, the time when the sex relationship was formed, and thus, the awareness seems to have been recovered to a certain extent.

In addition, the victims are directly involved in around 03:43.