The appeal is dismissed.

The grounds of appeal are examined.

Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and probative value of evidence conducted on the premise of fact finding belong to the free judgment of the fact-finding court.

(Article 308 of the Criminal Procedure Act). For reasons indicated in its reasoning, the lower court determined that the first instance court, which recognized the fact that the Defendant attempted to have sexual intercourse with the victim who was under the influence of alcohol and failed to resist, was justifiable, and rejected the allegation in the grounds of appeal on mistake of facts.

The allegation in the grounds of appeal is merely an error in the judgment of the court below as to the choice of evidence and probative value, which belong to the free judgment of the court of fact-finding.

In addition, even if examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the failure to resist, the right to refuse to make a statement, the right to refuse to investigate a vessel, and the evidence illegally collected, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.