The defendant shall be innocent.

1. The summary of the facts charged was around June 30, 2014, the Defendant: (a) provided the victim D (at 20 years of age) and meals that he had come to know by drinking prior to this mold; and (b) provided the “Eju store” divided the victim, who had been locked by drinkingly dividing the victim into the 'G located in Suwon-si F, Suwon-si.

At around 00:00 on July 1, 2014, the Defendant: (a) lost the mind of alcohol at the guest room in the apartment room in which “G” was held; (b) was deprived of the victim’s clothes in a state of failing to resist due to sleep; and (c) went off the victim’s clothes once to have sexual intercourse with the victim.

2. 피고인 및 변호인의 주장 피고인은 술에 많이 취한 피해자와 모텔에 함께 투숙하였는데, 피해자는 모텔 안에서 20 ~ 30분 정도 지나자 술이 깼고, 피고인은 그 후 30분 정도 지난 다음 피해자와 합의 하에 성관계를 가졌다.

Therefore, the Defendant did not have sexual intercourse with the victim under the influence of alcohol by taking advantage of the victim’s mental or physical condition of difficulty.

3. Determination

A. The facts constituting the elements of a crime charged in a criminal trial are the prosecutor’s burden of proof, whether it is a subjective element or an objective element. The establishment of a crime ought to be based on strict evidence with probative value that makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the extent that it would lead to such conviction, even if the prosecutor’s assertion or defense is contradictory or unreasonable, and there is suspicion of guilt, such as inconsistency with one another’s assertion or defense, etc. (see, e.g., Supreme Court Decision 2010Do14487, Apr. 28, 201). The crime of quasi-rape as referred to in Article 299 of the Criminal Act is established by sexual intercourse by taking advantage of the person’s mental or physical condition or the state of impossibility to resist, and thus, “non-rape”, which is an objective element of the element of a crime, should be determined by mental disorder or food impairment.