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The prosecutor's appeal is dismissed.
Reasons
1. As to the summary of the grounds for appeal of this case, the court below found the defendant not guilty on the ground that the crime of rape was committed even if it was sufficiently recognized, according to the evidence submitted by the prosecutor, since the crime of rape was committed by the defendant, and there was an error of mistake of facts.
2. Determination
A. On August 25, 2014, around 19:00 on August 25, 2014, the Defendant, at around 19:0, carried out drinking together with the victim D (inn, 59 years of age) in the area of residence of the victim D (inn, the victim D) located in Dong-gu, Chungcheongnam-gu, Seoul.
At around 01:40 on August 26, 2014, the Defendant: (a) was able to report the victim’s body and rape; (b) was exempted from all the victim’s fright and panty ties, etc., who was divingd before the victim’s residence; and (c) was also trying to rape the victim’s body by cutting off his clothes; (d) the victim resisted against “Isson” and her body; (c) the victim humping the victim’s body with his hand so as to prevent the victim from leaving the body; and (d) had sexual intercourse once with the victim.
B. The lower court found the Defendant not guilty of the facts charged on the ground that it is difficult to recognize that the Defendant committed rape on the grounds as follows, and found the Defendant guilty of attempted rape included in the above facts charged.
The only statement made by the victim at an investigative agency is that it is admissible as evidence that conforms to this part of the facts charged. The victim appeared in this court and stated that the defendant was unable to insert his sexual organ, and the defendant consistently denied the insertingion, and the defendant did not discover male gene type as a result of the first appraisal of the victim emergency key of sexual assault (the final appraisal document submitted by the prosecutor after the conclusion of the pleadings, only detection of a fixed amount in the victim panty, but the male gene type was not detected, and the victim's quality is the victim.