The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. The Defendant, by assaulting or threatening the victim to the extent of intimidation of the crime of rape, did not commit rape in a situation where the victim is unable to resist or is considerably difficult to resist.

Nevertheless, the court below found guilty of the attempted rape, which is erroneous in the misapprehension of facts, thereby affecting the conclusion of the judgment.

B. The sentencing of the lower court’s unfair sentencing (one year and six months of imprisonment, and forty-hour order of sexual assault treatment programs) is too unreasonable.

2. Judgment on the grounds for appeal

A. Determination as to the assertion of mistake of facts ought to be made based on the specific situation in which the victim was placed at the time by comprehensively taking account of not only the content and degree of the intimidation, but also the developments leading up to the exercise of force, the relationship with the victim, and the circumstances at the time of the act and the subsequent circumstances. From an ex post perspective, the victim could have escaped from the scene of the crime, or the victim did not resist due to his or her own force, thereby making it considerably difficult for the perpetrator to resist the victim.

There should be no way to readily conclude a sexual intercourse (see, e.g., Supreme Court Decision 2017Do21249, Feb. 28, 2018). Furthermore, the commencement of the crime of rape has been initiated when the victim’s resistance is impossible or when the victim commences assault or intimidation to the extent that it is considerably difficult to resist or make it difficult to resist.

In fact, there is commencement of enforcement only when the victim's resistance is impossible or considerably difficult due to such violence or intimidation.

It cannot be seen (see Supreme Court Decision 2000Do1253, Jun. 9, 200). 2) In light of the above legal principles, it can be recognized by evidence duly adopted and examined at the original court and the trial.