The defendant's appeal is dismissed.

1. Summary of the grounds for appeal (misunderstanding of facts, misunderstanding of legal principles, and improper sentencing)

A. In the event of the instant case, the Defendant did not have sexual intercourse with the victim by taking advantage of the victim’s non-opportunable condition.

B. The sentencing of the lower court (the period of four years of imprisonment and forty hours of order to complete sexual assault treatment programs) is too unreasonable even if the Defendant’s act of sentencing is found guilty.

2. Determination

A. As to the assertion of misunderstanding of facts and misapprehension of legal principles, Article 299 of the Criminal Act provides that a person who has committed sexual intercourse or indecent act by taking advantage of a person’s mental or physical loss, or in an impossible condition shall be punished as the crime of rape or indecent act under Articles 297 and 298 of the Criminal Act. Here, the term “incompetenceable condition”

Article 297 and Article 298 of the Criminal Act refers to cases where psychological or physical resistance is absolutely impossible or substantially difficult due to reasons other than loss of mental or physical capacity (see Supreme Court Decision 2010Do7403, Sept. 9, 2010, etc.). In determining the credibility of a victim’s statement supporting the facts charged, the court shall not only determine the credibility of the statement, but also determine credibility of the statement, such as whether it conforms to the reasonableness, logical and contradictoryness, or rule of experience, evidence or third party’s statement, but also conforms to the appearance or attitude of a witness who is going to make a statement in the open court after being sworn before a judge and after being sworn, and the protocol of examination of witness including the victim’s witness’s statement, such as the pening of the statement, etc., that it is difficult to record the witness’s statement in the open court, by directly observing various circumstances, and it shall not be rejected without permission of the court below, unless there is any separate evidence to deem credibility in our criminal proceedings (see Supreme Court Decision 20136.