The prosecutor's appeal is dismissed.

1. Comprehensively taking account of the evidence submitted by the prosecutor to the gist of the grounds for appeal, the fact that the victim was forced to commit an indecent act by using the fact that the victim cannot resist because he was under the influence of alcohol.

Nevertheless, the judgment of the court below which acquitted the defendant is erroneous by misunderstanding the facts and affecting the conclusion of the judgment.

2. Determination

A. The burden of proving the facts charged in a criminal trial is to be borne by a public prosecutor, and the conviction of guilt is to be based on evidence with probative value that leads a judge to feel true beyond a reasonable doubt. If there is no evidence to establish such a conviction, even if there is doubt of guilt against the defendant (see Supreme Court Decision 9Do4305, Feb. 25, 200, etc.). (b) In light of the above legal principles, the following circumstances acknowledged by the evidence of this case, i.e., (i) the victim F was first submitted to the police on the day of this case, stating that “The defendant was off his clothes” (as evidence record No. 5), and if the police was examined by the court of the lower court, F was not able to accurately memory the facts charged at the time of making a statement at the police station, and (ii) the police record of this case was not 50 days after the first statement at the court below (see Supreme Court Decision 2005Do9705, Feb. 25, 2000).

The defendant and the F made a statement to the effect that the F, in person, tried to go off the panty, and was unable to get off the panty, and the defendant helps the defendant to go out of the panty (Evidence No. 11 of the Evidence Record);