The prosecutor's appeal is dismissed.

1. According to the evidence submitted by the prosecutor, at the time of the instant case, the victim was under the influence of alcohol and was in a state of mental disability or inability to resist, and the defendant could fully recognize the fact that the victim had sexual intercourse with the victim by using the above facts, and the judgment of the court below which acquitted the defendant.

2. Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits an indecent act by taking advantage of the person’s mental or physical condition of difficulty to resist shall be punished together with the crime of rape or indecent act by compulsion under Articles 297 and 298 of the Criminal Act. The protected interest is to protect the sexual self-determination of a person who is unable to defend himself/herself due to mental or physical reasons.

(see, e.g., Supreme Court Decision 98Do3257, May 26, 2000). In the crime of quasi-rape, the term “non-rape” means a state in which a person lacks normal judgment ability and behavior control ability with respect to sexual acts due to mental disorders or food disorders.

The state of impossibility to resist refers to the case where psychological or physical resistance is absolutely impossible or substantially difficult due to the reason other than the defect in light of the balance with Articles 297 and 298 of the Criminal Act (see, e.g., Supreme Court Decision 98Do3257, May 26, 2000). Furthermore, the defendant has the awareness and intent that the victim is in the above state and has sexual intercourse by taking advantage of such state.

In determining whether or not the victim's mental or physical condition is unable to resist or not, the protection of the law of quasi-rape that protects sexual self-determination to a person who is unable to defend his or her sexual self-defense due to mental or physical condition and the degree of mental or physical disorder is beyond the stage of mental disability and the legislative intent that requires it to