1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment for three years;

3. Sexual assault against the defendant for 120 hours.

1. Summary of grounds for appeal;

A. The Defendant does not have used violence or intimidation to the extent that he would make it impossible or considerably difficult to resist the victim at the time of committing the instant crime.

In addition, the victim first rejected the demand of the defendant for the gender relationship, but later agreed without refusing the gender relationship with the defendant.

B. The lower court’s sentence of unreasonable sentencing (four years of imprisonment) is too unreasonable.

2. Determination

A. To establish the assertion of mistake of facts, the perpetrator’s assault and intimidation should be sufficient to make it impossible or considerably difficult for the victim to resist.

Meanwhile, whether a perpetrator committed assault and intimidation to establish the crime of rape should be determined based on the specific situation in which the victim was placed at the time of sexual intercourse by comprehensively taking into account the details and degree of assault and intimidation, the developments leading up to exercising force, the relationship with the victim, and the circumstances at the time of sexual intercourse. From an ex post perspective, the victim was able to escape from the scene of the crime before sexual intercourse.

The mere fact that the perpetrator did not resist due to his or her force alone does not readily conclude that the perpetrator’s assault and intimidation did not reach the extent to which he or she would have significantly difficult to resist (see, e.g., Supreme Court Decision 2005Do3071, Jul. 28, 2005). In full view of the following facts acknowledged by the evidence duly adopted and investigated by the lower court, the Defendant’s use of the assault by the victim was to make it impossible or considerably difficult to resist the victim, and further, the Defendant’s sexual intercourse with the victim by means of such assault was committed against the victim’s will.

Therefore, the defendant's argument on this part is without merit.

(1) A victim shall cover and enjoy interest in the victim's room to work at night.