The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

1. Summary of grounds for appeal;

A. At the time of the crime of mistake of facts and misapprehension of legal principles, the victim cannot be deemed to have been in the state of mental or physical disability.

In addition, considering the fact that the victim got a high level before the crime of this case immediately before the crime of this case, the defendant's act should be deemed to have been committed in such a manner that the victim's implied consent was obtained or the defendant was mistaken for the victim's consent was obtained. Even if the defendant did not do so, the defendant is in the state of mental disorder or mental disorder and thus, the defendant's responsibility for the defendant should be excluded or mitigated.

Nevertheless, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in mistake and misapprehension of legal principles.

B. The lower court’s sentence of unreasonable sentencing (a fine of 3 million won, 40 hours’ order to complete sexual assault treatment programs) is too unreasonable.

2. Determination

A. Determination of misunderstanding of facts and misapprehension of the legal principles: (1) the circumstances acknowledged in accordance with the evidence duly adopted and investigated by the court below as to whether the victim was in a state of mental or physical disability or non-performance; (i) the victim was present at the court of the court below as a witness and stated in the court of the court below that “the victim was in a state of no consciousness of drinking”; (ii) the victim was unable to completely memory the circumstances at the time of the crime of this case; (iii) the police officer J and H called upon receiving the report, “the victim did not have the ability to resist under the influence of drinking (J statement)”; and (iv) the victim was sent to the hospital immediately after the crime of this case.”