The defendant shall be innocent.

1. Around 00:00 on November 3, 2017, the Defendant, while drunk in front of Gwanak-gu in Seoul Special Metropolitan City, intended to engage in rape with the victim F (one-year age 18) who borrowed a mobile phone and requested to rent the mobile phone, and was placed in a way to commit rape with G SM5 riding lanes parked on a road, and was parked in a way that is under the influence of alcohol, and then was bread with the victim’s panty, and was fluent with the victim’s sexual intercourse once by inserting the sexual organ into the part of the victim’s sexual organ.

2. Determination:

A. 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 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.”

“.......”

In this context, “the state of resistance” refers to a case 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, e.g., Supreme Court Decisions 98Do3257, May 26, 2000; 2012Do2631, Jun. 28, 2012). In addition, the crime of quasi-rape under Article 299 of the Criminal Act is established by having sexual intercourse using a person’s mental or physical loss or resistance. In order to fall under the crime, the victim’s “the state of mental or physical loss or resistance impossible,” as an objective constituent element, and the victim’s intent to have sexual intercourse with the victim’s awareness and intent to use the victim’s status as a subjective element should be acknowledged.

On the other hand, the conviction in a criminal trial ought to be based on evidence with probative value that leads a judge to feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt about the defendant's guilt, it should be determined with the benefit of the defendant.