The prosecutor's appeal is dismissed.

1. The prosecutor of the gist of the grounds for appeal asserts that, in full view of the age relationship between the victim and the defendant and the defendant, the defendant has sexual intercourse with the victim who has a mental disability and has been unable to resist, and that, if it is not recognized that the victim has failed to resist, it constitutes sexual intercourse with the minor by force at least by force.

2. Determination

A. As to the prosecutor’s assertion that the victim had sexual intercourse with the victim by taking advantage of the victim’s mental disability as the victim’s failure to resist and taking advantage of the victim’s mental disability, the lower court duly admitted and examined the following circumstances, namely, that the victim did not make any statement that the victim would or would not refuse to do so in relation to the defendant (Article 14, 24 of the Investigation Record), and that the victim was unable to refuse to refuse to do so (Article 14, 24 of the Investigation Record), but the victim did not have any desire or threat to the victim (Article 15, 22, 24, 38, 24, 39, 43, and 44 of the Investigation Record). Rather, the Defendant appears in a passive manner, such as asking the victim’s cell phone text message (Article 18, 25, 35, and 444 of the Investigation Record).

) Accordingly, the victim responded to the fact that he was sent to the cell phone text message (Article 1, No. 18, No. 2, No. 53 of the Investigation Records), and the victim stated that he did not interfere with the request of the defendant to the telecom, and that he was aware that he was aware of sexual intercourse with the defendant (Article 1, No. 25 of the Investigation Records, and the defendant demanded that the victim enter the telecom.)