The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. In relation to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape), the Defendant did not assault or threaten the victim, and merely committed sexual intercourse with the victim by using physical or social status, i.e., force with the victim.

Nevertheless, the lower court, which recognized that the Defendant had raped the victim by assault or intimidation, erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. The lower court’s imprisonment (two years and six months of imprisonment) against the Defendant is too unreasonable.

2. Determination

A. Determination of the legal principles as to the assertion of the misapprehension of the legal principles should be made on the basis of the specific situation in which the victim was faced at the time of sexual intercourse in full view of not only the content and degree of assault and intimidation, but also the background leading up to exercising tangible force, the relationship with the victim, and the circumstances at the time of sexual intercourse and the subsequent circumstances. From an ex post perspective, it should not be readily concluded that the perpetrator’s assault and intimidation did not reach the extent that it was significantly difficult for the victim to resist (see, e.g., Supreme Court Decision 2005Do3071, Jul. 28, 2005) solely on the ground that the victim was able to escape from the scene of the crime before sexual intercourse or the victim did not resist due to considerable influence on the victim (see, e.g., Supreme Court Decision 2005Do3071, Jul. 28, 2005).

F. together with F.