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The prosecutor's appeal is dismissed.
Reasons
The summary of the grounds for appeal is that the Defendant mismisunderstanding the facts of the case and misunderstanding of the legal principles (the point of causing rape, which is the acquittal of the reasoning), the Defendant, despite having expressed his intent to refuse to contact the victim’s body above, went up his body. This constitutes an assault to the extent that it substantially makes it difficult to resist the resistance, thereby commencing the implementation of the crime of rape.
Nevertheless, the lower court acquitted the Defendant on this part of the facts charged, and erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
The punishment of a fine of KRW 2 million sentenced by the court below is too unfortunate and unfair.
Since the court below was not guilty of rape injury in the part of the claim for the order to observe the protection order, it is improper to dismiss the claim for the order to observe the protection of this case on the ground of this.
Judgment
As to the Defendant’s assertion of mistake of facts and misapprehension of the legal doctrine, the lower court explained the legal doctrine on the commencement of the commission of rape, and the existence of violence or intimidation in the crime of rape, and, in light of the following circumstances, it is difficult to recognize that the evidence submitted by the Prosecutor alone had the intent to rape, or that the Defendant commenced violence or intimidation to the extent that the victim’s resistance was impossible or significantly difficult, and found the Defendant not guilty of the injury included therein.
① It may be recognized that the Defendant attempted to physically contact the victim’s chest or her sexual intercourse, however, even though the victim was first viewed on the day of the instant case by the Defendant, the Defendant was discharged from the Defendant’s house while drinking alcohol at the Defendant’s house and her clothes off, and was in the Defendant’s bed off, and thereafter the Defendant was pushed back back to the victim’s chest.