The prosecutor's appeal is dismissed.

The judgment of the court below which judged that it is difficult to view that the victim was disabled at the time when the defendant had sexual intercourse with the victim C (the victim, 31 years of age) was disabled.

The summary of the facts charged is that the defendant is engaged in daily labor, and the victim is both ness of the pre-divor who was divorced by the defendant around June 2006, and the victim is the disabled of class 3 of intellectual disability.

The victim is not married due to the above disability and after the defendant has divorced, the victim is living together with the former wife of the defendant and took care of the children.

The defendant was aware that the victim was a person with intellectual disability of class 3 who was unable to express his opinion by visiting the house where he was living frequently and by using violence against the victim.

On December 10, 2012, the Defendant employed the “E” restaurant located in Daegu-gun D as a restaurant assistant with the victim.

On December 10, 2012, the Defendant, at night and on December 10, 2012, had sexual intercourse with the victim, who is mixed with the victim, in the said “Ecafeteria” container scheme. The victim said that the victim did not refuse to do so, and that the victim attempted to cause any noise, “I mari,” and “I ambly,” and “I ambly,” and “I am off the victim’s clothes.”

As a result, the defendant has sexual intercourse with the victim who is the disabled in the third degree of intellectual disability by force.

The lower court determined that the victim was a disabled person of Grade III with intellectual disability, and that the defendant was fit for the victim's disability from the restaurant words before several years prior to the prosecution investigation, and that the victim was simply and simply equipped with the victim's own mind and did not answer. If the child's friendships play at home, the victim is a disabled person at the time of the defendant's sexual intercourse with the victim.