The prosecutor's appeal is dismissed.

1. In light of the substance of the grounds for appeal (deficial assertion) and the content of the victim’s statement and the form of the Defendant and the victim revealed in CCTV images, the victim was in a state of mental or physical disorder or inability to resist at the time of committing the instant crime, and the Defendant was also aware.

On the contrary, the lower court found the Defendant not guilty of the facts charged of this case.

2. Determination

A. The key issue in the instant case is whether “the victim was in a state of mental or physical disability or non-fluence at the time of the instant crime,” and whether the Defendant intended to engage in sexual intercourse by using it.

B. Determination on key issues 1) ① The form and state of “victim before and after the entrance into the CCTV” taken in CCTV, ② the reason why the victim reported to the police, ③ the victim’s blood alcohol level was measured by 0.093% immediately after the report, ④ 55 pages of the evidence record, and the victim’s statement about the situation at the time. However, in light of all the circumstances acknowledged by the evidence duly adopted and investigated in the lower court and the trial, the lower court’s determination that “It is difficult to readily conclude that the victim was in the state of mental disorder or inability to resist at the time of the instant case, and that the Defendant intended to engage in sexual intercourse by using such circumstance is justifiable, and the Prosecutor’s assertion is without merit.”

In particular, it is difficult to readily conclude that the Defendant had the intent to commit quasi-rape.

① 피고인이 클럽에서 나와 피해자와 상당 시간 대화를 나눴던 점, ② 그 과정에서 피고인이 ‘예쁘다’고 하면서 피해자를 안아주자, 피해자가 이를 거부하지 않았던 점, 공판기록 55쪽 ③ 피고인이 클럽에서 모텔로 이동하는 과정에서 피해자와 일정 시간 함께 있었고, 택시에서 내려 모텔로 이동할 때에는 다정하게 피해자의 손을 잡았던 점, ④ '모텔...