The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Provided, That the above punishment shall be imposed for three years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Defendant 1) misunderstanding the legal doctrine, the Defendant committed an indecent act against the victim and committed an act to remove the victim’s body. This cannot be deemed to have committed assault or intimidation to the extent of suppressing the victim’s resistance required in the crime of rape. However, the degree of assault or intimidation in the crime of indecent act is limited. Nevertheless, the Defendant commenced the commission of the crime of rape.

In light of the above legal principles, the court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

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

B. The Prosecutor’s sentence of the lower court is too uneasible and unreasonable.

2. Determination

A. Determination on the Defendant’s assertion of misapprehension of the legal doctrine ought to be based on the following: (a) assault or intimidation in the crime of rape ought to be such an extent as to make it impossible or considerably difficult for the victim to resist; and (b) whether such assault or intimidation was likely to make it impossible or considerably difficult for the victim to resist, or make it difficult for the victim to resist shall be determined by taking into account all the circumstances, including the content and degree of the assault or intimidation exercising force; (c) the background leading up to the exercise of force; (d) relationship with the victim; and

In order to engage in sexual intercourse, rape is commenced when the victim's resistance is impossible or when the victim commences violence or intimidation to the extent that it is considerably difficult to resist or make it difficult to resist.

It should be seen that there is commencement of enforcement only if it is actually impossible or considerably difficult to resist the victim by such violence or intimidation.

In light of the above legal principles, the following circumstances acknowledged by the court below’s duly adopted and investigated evidence do not appear to have been seen (see, e.g., Supreme Court Decision 2000Do1253, Jun. 9, 200). 2) In light of the aforementioned legal principles, the Defendant resisted the victim.