The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal (the factual errors and misapprehension of the legal principles) is that the victim is a class 2 of intellectual disability 49 with an intelligence index lower than 49, and the social age is below 7.11. The victim’s appearance, social worker K’s statement near the victim, relationship between the defendant and the victim, etc., which are revealed the specific meaning of sexual act, but the victim did not have the ability to exercise the sexual self-determination right to refuse the defendant’s demand.

Inasmuch as the victim made a statement consistent with the facts charged and credibility in the statement despite the above disability, it is recognized that the defendant's act of similarity and sexual intercourse are not limited to the reduction of the victim's conspiracy, but also recognized.

Furthermore, since the defendant was well aware of the victim's status through volunteer activities, it should be deemed that the victim had intention to engage in similarity and sexual intercourse by using the victim's state of difficulty in resisting due to mental disability.

Nevertheless, the judgment of the court below which did not recognize the facts charged of this case contains errors of mistake and misapprehension of legal principles.

2. Determination

A. In the form of a participatory trial, the lower court held that it is difficult to view that the evidence submitted by the prosecutor alone was insufficient to prove that the victim had a mental disorder to the extent that he/she could not exercise his/her right to sexual self-determination, by adopting the jury's verdict and considering the following circumstances after the jury participated in the whole process of the fact-finding, including the examination of witness, and by a majority of jurors (two criminal offenders, not guilty and seven criminal offenders).

1. The victims have biological meanings and effects of sexual acts, for example, sexual acts.