The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

However, for five years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Article 20 of the Special Act on the Punishment, etc. of Sexual Crimes provides that the application of Article 10(1) and (2) of the Criminal Act may be excluded in the case of sexual crimes committed in the state of mental disorder caused by drinking or drugs, but the court below erred by misapprehending the legal principles on the ground that the defendant was under the influence of alcohol at the time of the instant case and was in the state of

B. The sentence of the lower court’s sentence of unreasonable sentencing (three years of imprisonment, four years of suspended execution) is too unjustifiable.

2. Determination

A. Article 20 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that the application of Article 10(1) and (2) of the Criminal Act may be excluded in cases where a sexual crime was committed in the state of mental disorder caused by drinking or drugs. This is obvious that the court has granted discretion to the court in the form of the language or provision of the provision. According to the records of this case, it can be recognized that the defendant has weak the ability to discern things under the influence of alcohol at the time of this case. Thus, the court below cannot be deemed unlawful on the ground that Article 10(1) and (2) of the Criminal Act did not exclude the application

B. Although there are some favorable circumstances for the Defendant to the assertion of unfair sentencing, including the fact that the Defendant had no previous conviction and criminal record, and that the victim did not want to punish the Defendant, the instant case is raped by the victim in a de facto marital relationship with his/her own punishment, and the nature of the crime and the criminal situation are very bad, and the victim suffered a big mental pain due to this, and other circumstances that form the condition of sentencing, such as age, character and behavior, environment, motive and circumstance of the crime, means and consequence of the crime, and the circumstances after the crime, etc., the sentence imposed by the court below may be deemed to be too unreasonable, and thus the prosecutor’s assertion of unfair sentencing pointing this out is justified.

3. The appeal by the prosecutor of conclusion is with merit.