The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. The victim claiming the misunderstanding of facts did not have a mental or physical loss or resistance impossible at the time when the Defendant inserted the sex organ.

Nevertheless, the lower court’s judgment that found the Defendant guilty of the facts charged of this case was erroneous, which affected the conclusion of the judgment.

B. The sentence of the lower court (two years and six months of imprisonment, and forty hours of completion of sexual assault treatment programs) is too unreasonable to deem the sentence to be unfair.

2. Determination

A. As to the assertion of mistake of facts, Article 299 of the relevant legal doctrine provides that a person who has sexual intercourse or indecent act by taking advantage of a person’s mental or physical loss or incompetence status shall be punished as such with the crime of rape or indecent act under Articles 297 and 298 of the same Act. In light of the fact that this crime is legally protected to protect a person who is unable to defend himself/herself due to mental or physical circumstances, the mental or physical loss is a state of mental or physical loss under Article 299 of the Criminal Act.

In addition to the mental and physical loss caused by a mental disorder under Article 10 of the Criminal Act, it shall be deemed that the physical and mental disorder includes other reasons that make it impossible to defend the sexual himself/herself, i.e., drinking, or personnel incompetence (see, e.g., Supreme Court Decision 2011Do1518, Oct. 27, 201). In addition, the state of resistance impossible under the same provision is called a state of resistance.

In light of the legal principles seen earlier, it is difficult to expect escape or rescue by a victim, and even if a male copier is set aside next to the court below, in light of the following circumstances acknowledged by the court below’s decision and the evidence duly adopted and duly examined by the court below, for reasons other than psychological or physical loss, due to the balance between Articles 297 and 298 (see Supreme Court Decision 201Do2631, Jun. 28, 2012).