The defendant is innocent. The summary of this judgment shall be notified publicly.

1. The summary of the facts charged is a foreigner of nationality of the Philippines.

On October 10, 2017, at around 05:00, the Defendant: (a) set divings from the bend floor of the bend, the wife C and the victim D (n, 20 years of age) who is the wife C, and the victim, or (b) laid down from the bend floor of the bend, and (c) laid down his hand by using those in a state of resistance impossibility of the victim with diving, and laid down his fingers into the part of the victim, and her fingers into the part of the victim’s quality.

As a result, the Defendant committed similar rape by taking advantage of the victim’s resistance impossible condition.

2. The gist of the defendant's assertion is that with the consent of the victim, the defendant only committed an act of gathering the victim's sound records and inserting the fingers inside the sound records as shown in the facts charged, and at the time, the victim did not have a mental or physical loss or resistance.

3. Determination

A. The facts constituting the elements of a crime charged in a criminal trial should be determined with the burden of proof, whether it is a subjective or objective element, and the recognition of facts constituting a crime should be based on strict evidence with probative value, which makes a judge not having any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the degree of conviction as above, even if the defendant’s assertion or defense is contradictory or uncomfortable, and there is suspicion of guilt, such as where the defendant’s assertion or defense is inconsistent or unreasonable (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 201). Meanwhile, Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits indecent act by taking advantage of a person’s mental or physical loss or resistance under Articles 297, 297-2 and 298 of the Criminal Act shall be punished as the crime of rape, similar rape or coercion under Article 297-2 and 298 of the Act.

It is a psychological or physical resistance due to reasons other than loss of mind and body in balance with Articles 297 and 298 of the Criminal Code.