The prosecutor's appeal is dismissed.

1. Comprehensively taking account of the evidence submitted by the prosecutor as to the gist of the grounds for appeal (misunderstanding of the facts), the fact that the defendant was in a state of mental and physical loss or in a state of impossibility of resistance due to drinking alcohol at the time of the defendant's sexual intercourse with the victim.

However, the lower court erred by misapprehending the facts charged, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. The lower court determined, comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and investigated by the prosecutor, that the evidence alone submitted by the prosecutor alone led to the physical and mental condition of the victim under the influence of alcohol at the time of the instant sex relationship, or that the Defendant has sexual intercourse with the victim under the recognition of the victim’s mental and physical loss or the impossibility of resistance.

The lower court acquitted the Defendant of the instant charges on the ground that it cannot be readily concluded.

① At the court of the court below, H indicated the Defendant’s door by “The victim sing the J sing point and the K station, leaving the arms into the part of the Defendant, and walking with the Defendant, etc.”

“The statement was made”.

After the occurrence of the instant case, one Part H heard the Defendant’s speech to the effect that he believed the Defendant’s speech that he had a sexual intercourse under the agreement with the victim from the Defendant through theO, and in this regard, H said statement in the court of original instance that “the victimized person may not memory even though he had a sexual intercourse under the agreement with the Defendant.”

“The statement was made”.

This seems to be due to the fact that the victim actively displayed the identification of the defendant while drinking, and the F also actively displayed the identification of the defendant in the court of original trial.

was stated.

② CCTV installed in the N and Mel (hereinafter “the instant telecom”) neighboring the N and Mel (hereinafter “the instant telecom”), and in N, the Defendant first saw the victim as following: