The judgment below is reversed, and the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the defendant case

A. To establish the crime of rape, the perpetrator’s intimidation must be sufficient to make it impossible or considerably difficult to resist the victim.

Whether intimidation was impossible or considerably difficult to resist the victim’s resistance ought to be determined by comprehensively taking account of all the circumstances such as the content and degree of the intimidation, the developments leading up to exercising force, the relationship with the victim, and the circumstances at the time of sexual intercourse and the subsequent circumstances (see, e.g., Supreme Court Decisions 2000Do5395, Feb. 23, 2001; 2001Do4462, Oct. 30, 2001). In addition, a intimidation and intimidation in the crime of rape must have a relation with the victim, but the intimidation does not necessarily have to be prior to sexual intercourse.

B. (1) The summary of the facts charged in the instant case is as follows: “The Defendant demanded the victim’s house living together on February 17, 2016 to engage in sexual intercourse, and the victim refused it on the ground that it was in the birth of the victim, the victim was promising not to be inserted into the victim’s sexual intercourse, and then forced the victim to engage in self-defense in the act subsequent to the victim’s arms and forced the victim to satisfe his body with his arms, and led the victim to a detailed division into the chest so that the victim’s body can not be cut off, and then raped once by inserting his sexual organ into the sexual organ of the victim.”

(2) The lower court acknowledged the circumstances as indicated in its reasoning, and acknowledged the fact that the victim had sexual intercourse against the victim's will by inserting his sexual organ into the victim's sexual organ even though the victim explicitly expressed his intention to refuse inserting sex into the victim, and even though the Defendant promised not to inserting his sexual organ into the victim's sexual organ, the lower court acknowledged the fact that the victim had sexual intercourse against the victim's will. However, it is sufficient to make the victim's resistance impossible or considerably difficult at the time of the Defendant's sexual intercourse.