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The prosecutor's appeal is dismissed.
Reasons
1. The gist of the grounds for appeal by the prosecutor: The victim of misunderstanding of facts and misunderstanding of legal principles was under the influence of alcohol so that he could not respond normally to the sexual acts of the defendant, and the defendant committed an indecent act by taking advantage of such conditions as the victim’s burging of the mental disorder.
2. Determination on the grounds for appeal
A. The prosecutor prosecuted the facts charged in the instant case by applying Article 299 of the Criminal Act, and Article 299 of the Criminal Act provides that a person who has sexual intercourse or indecent act by taking advantage of the person’s mental disorder or state of failing to resist shall be punished the same as the crime of rape or indecent act under Articles 297 and 298 of the Criminal Act.
The legal interest of the above crime is to protect the right to sexual self-determination of a person who is unable to exercise his/her right to sexual defense properly due to mental and physical reasons.
In light of the above, the term "the state of mental disorder" as referred to in the above provision is a mental disorder or food disorder, which makes it impossible to make a normal judgment on sexual acts, i.e., the other party has defiled.
Along with Articles 297 and 298 of the Criminal Act, it should be interpreted that the psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than the defect in light of Article 297 and Article 298 of the Criminal Act.
(see, e.g., Supreme Court Decision 2012Do2631, Jun. 28, 2012). (B)
The Defendant and the victim at the time indicated in the reasoning of the judgment by the lower court, and ① given and received thoughts about the application for taking a second semester course from the police officer of August 2013 to the Kakao Stockholm as the motive for the same task, or contacted them, and the Defendant first committed the instant case on the day immediately after the completion of the second semester intermediate examination.