The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Provided, That the above punishment shall have been imposed for three years from the date this judgment became final.

Summary of Grounds for Appeal

In a misunderstanding of facts and misapprehension of legal principles with respect to ① rape, the defendant had sexual intercourse with the victim. Even if the defendant committed assault or intimidation with the victim while sexual intercourse, the degree of such sexual intercourse does not reach the extent that the victim would not resist or resist substantially difficult to resist. ② As to the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Violation of the Cameras, etc. Act on the Punishment, etc. of Sexual Crimes), the defendant did not have taken photographs against the victim’s will, and the recorded parts do not constitute the body of another person who may cause sexual humiliation or sense of shame, the court below erred by misunderstanding the facts guilty or by misapprehending legal principles.

The sentence of unfair sentencing (two years of imprisonment) by the lower court is too unreasonable.

Judgment

In order to establish a legal doctrine related to the determination of mistake of facts, the perpetrator’s assault and intimidation should be such to the extent that it would make it impossible or considerably difficult for the victim to resist (see, e.g., Supreme Court Decision 2004Do2611, Jun. 25, 2004). Whether there was such assault and intimidation or intimidation should be determined based on the specific circumstances in which the victim was faced at the time of sexual intercourse, taking into account not only the content and degree of the assault and intimidation, but also the background leading up to exercising force, the relationship with the victim, and the circumstances at the time of sexual intercourse and the post, and the victim could escape from the scene of the crime before sexual intercourse.

The lower court’s judgment should not readily conclude that the perpetrator’s assault and intimidation did not reach the extent that the perpetrator’s resistance was significantly difficult solely on the ground that the perpetrator did not resist due to his or her force (see, e.g., Supreme Court Decision 2005Do3071, Jul. 28, 2005). The following circumstances, which can be recognized by the evidence duly adopted and completed the investigation, are acceptable.