The defendant's appeal is dismissed.

1. Summary of grounds for appeal (misunderstanding of facts, mental or physical weakness, and improper sentencing);

A. The Defendant, at the time of the instant case, did not have sexual intercourse with the victim only when he tried to sleep by entering the telecom.

B. The Defendant was in a state of mental and physical weakness under the influence of alcohol at the time of the instant case.

(c)

Even if the defendant's act of sentencing is found guilty, the sentencing of the court below (the order to complete a sexual assault treatment program with 3 years, 6 months and 40 hours of imprisonment) is too unreasonable.

2. Determination

A. 1) Determination of the assertion of mistake of facts in light of the difference between the first instance court and the appellate court’s method of evaluating credibility in accordance with the spirit of substantial direct trial adopted by the Korean Criminal Procedure Act as an element of the trial-oriented principle, the first instance court’s judgment was clearly erroneous in its determination on the credibility of the statement made by the witness of the first instance court in light of the contents of the first instance judgment and the evidence duly examined by the first instance court.

Unless there are extenuating circumstances to see the credibility of the statement made by the witness of the first instance trial and the result of further examination of evidence conducted by the court of first instance until the closing of pleadings, the appellate court should not reverse without permission the first instance judgment on the ground that the first instance judgment on the credibility of the statement made by the witness of the first instance is different from the appellate court’s judgment (see, e.g., Supreme Court Decision 2011Do5313, Jun. 14, 2012). In full view of the following additional circumstances acknowledged by the evidence duly adopted and investigated by the court of first instance and the court of first instance by the court of first instance, the appellate court should not reverse without permission the first instance judgment on this case solely on the ground that the first instance judgment on the credibility of the statement made by the witness of the first instance is different from the appellate court’s judgment (see, e.g., Supreme Court Decision 2011Do5313, Jun. 14, 2012).