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 court below acquitted the defendant of the facts charged in this case, although the defendant could sufficiently recognize the fact that the defendant had sexual intercourse by taking advantage of the state of mental or physical loss or impossibility of resistance, which is in violation of the rules of evidence and mistake of facts.

2. Determination

A. The summary of the facts charged in the instant case was around 09:00 on July 8, 2017, at the house of F (F) located in Gwanak-gu in Seoul Special Metropolitan City, the Defendant: (a) taken advantage of the shape of F (F) in which F is exempted from water and was locked; (b) taken off the F’s shoulder and her finger off; and (c) inserted the finger into F’s sound part; and (d) continuously inserted the F’s finger into F’s sound part.

Accordingly, the defendant has sexual intercourse with F in a state of mental and physical loss or incompetence.

B. The lower court determined that the evidence alone submitted by the prosecutor was proved to the extent that the Defendant had sexual intercourse with F by taking advantage of the state of mental and physical loss or resistance impossibility, as stated in the facts charged in the instant case, to the extent that there is no reasonable doubt.

On the ground that it is insufficient to view the instant facts charged, the lower court acquitted the Defendant.

(c)

Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits an indecent act by taking advantage of a person’s mental or physical loss or incompetence from resistance shall be punished as the crime of rape, similar rape, or forced indecent act under Articles 297, 297-2, and 298. In this context, the state of resistance is not possible.

“Along with Articles 297 and 298, if psychological or physical resistance is absolutely impossible or substantially difficult due to reasons other than loss of mind and body (see, e.g., Supreme Court Decisions 98Do3257, May 26, 2000; 2012Do2631, Jun. 28, 2012). Forms are conducted through strict selection procedures in criminal trial proceedings conducted in the form of citizen participation trial introduced to enhance democratic legitimacy and trust in the judiciary.