The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal: According to CCTV images at the entrance of a misunderstanding hotel, the defendant seems to have taken the whole form.

In addition, in the investigative agency and the court of the court below, hotel staff J consistently stated in the investigative agency and the court of the court below that “the victim was under the influence of alcohol so that he was able to sit on the floor as it is, unless there was a fright of the defendant in the elevator.”

In addition, the defendant strongly expressed his intention of refusal at the time that the defendant should enter the victim as a way to attract the victim in front of the hotel room.

In addition, the defendant entered the hotel room and approximately three hours have passed since he entered the hotel.

It is reasonable to regard the victim as being under the influence of alcohol because he/she had sexual intercourse after the defendant confirmed that the victim was in a profound depth in the hotel room.

In full view of these evidence and facts, there is no reason to suspect the credibility of the victim's statement that "after any time of the crime day, the victim has no memory at all, and the victim has been sexually abused at the hotel room."

However, since the court below accepted only the defense of the defendant and sentenced the defendant not guilty, there is an error of law that affected the conclusion of the judgment due to mistake of fact.

2. The lower court’s judgment: (a) in light of the following circumstances, the damaged person was in a state of mental or physical loss or impossibility of resistance at the time of the instant case:

Even if it is difficult to see or even if in such a state, the Defendant had sexual intercourse with the victim with the intent of quasi-rapeing to use such state by recognizing such status.

For the reasons that it is difficult to conclude it, the facts charged constitute a case where there is no proof of criminal facts.

(1) The victim stated that he did not know that he did not enter the F club because he did not memory after leaving the club.

(b).