The judgment of the court below (including the part not guilty in the grounds) shall be reversed.

Defendants shall be punished by imprisonment for not less than two years and six months.

(2).

1. Summary of grounds for appeal;

A. In light of the ordinary amount of the victim of mistake of facts, the amount of the victim’s drinking at the time of the instant case, and the victim’s actions at the time of the instant case, etc., the victim cannot be deemed to have been in a state of mental disorder at the time of the instant case. Nevertheless, the lower court found the Defendants guilty of the facts charged in the instant case where the Defendants had sexual intercourse with the victim by taking advantage of the victim’s mental condition, thereby causing injury to the victim. In so doing, the lower court erred by misapprehending the fact about the victim’s mental and physical condition and adversely affecting the conclusion of the judgment. 2) Even if the Defendants’ act of unfair sentencing is found guilty, in light of the background of the instant crime and the age of the Defendants, etc., each sentence (three years

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. Determination

A. As to the Defendants’ assertion of mistake of facts, Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits indecent act by taking advantage of the mental or physical condition of a person, or the state of failing to resist, shall be punished as the crime of rape or indecent act under Articles 297 and 298 of the Criminal Act. The above crime is protected by the legal interest to protect the sexual self-determination right of a person who is unable to defend himself/herself due to mental or physical circumstances (see, e.g., Supreme Court Decision 98Do3257, May 26, 2000). In light of the foregoing, the term “the state of mental disorder” under the above provision refers to a state in which a normal judgment cannot be made with respect to sexual acts due to mental disorder or consciousness, that is, the victim is unable to exercise his/her normal ability to cope with his/her sexual act or ability to make a judgment.