제1부 형법 총론
형법서론
제1장 형법의 기본개념 / 12
제1절 형법의 의의와 종류 ······························12
Ⅰ 법률의 의의와 종류 ···································12
Ⅱ 형법의 의의와 종류 ···································12
Ⅲ 형법의 지위와 성격 ···································12
제2절 형법의 기능 ··········································13
Ⅰ 규제적 기능 ···············································13
Ⅱ 보호적 기능 ···············································13
Ⅲ 보장적 기능 ···············································13
제3절 형법의 발전 ··········································14
Ⅰ 법익 보호기능과 사회윤리적 행위가치 보호기능
··································································15
Ⅱ 형벌이론 ····················································15
Ⅲ 형법학파의 비교 ········································16
제2장 죄형법정주의 / 17
제1절 죄형법정주의의 개관 ····························17
제2절 죄형법정주의의 내용 ····························17
Ⅰ 법률주의(관습형법금지원칙, 포괄위임금지원칙)
·································································17
Ⅱ 명확성원칙 ················································20
Ⅲ 소급금지원칙(형벌불소급원칙) ···················25
Ⅳ 유추해석금지원칙 ·····································29
Ⅴ 적정성원칙 ················································44
제3장 형법의 적용범위 / 46
제1절 형법의 시간적 적용범위 ······················46
Ⅰ 제1조 1항의 해석 ·······································46
Ⅱ 제1조 2항의 해석 ·······································47
Ⅲ 제1조 3항의 해석 ······································50
Ⅳ 제1조 2항·3항의 예외 ·······························50
Ⅴ 한시법과 백지형법 ·····································51
제2절 형법의 장소적 적용범위 ······················59
Ⅰ 속지주의 ···················································59
Ⅱ 기국주의 ···················································59
Ⅲ 속인주의 ···················································60
Ⅳ 제5조의 보호주의 ······································61
Ⅴ 제6조의 보호주의 ······································61
Ⅵ 세계주의 ···················································62
Ⅶ 국가간 법률충돌의 해결 ····························63
제3절 형법의 인적 적용범위 ·························64
Ⅰ 인적 적용범위의 원칙 ·······························64
Ⅱ 인적 적용범위의 예외 ·······························64
제4절 특별법과의 관계 ··································65
범죄론
제1장 범죄론의 기초 / 68
제1절 행위요건·성립요건·처벌조건·소추조건 ···68
Ⅰ 행위요건 ···················································68
Ⅱ 성립요건 ···················································68
Ⅲ 처벌조건 ···················································68
Ⅳ 소추조건 ···················································69
제2절 범죄의 의의와 종류 ·····························72
Ⅰ 범죄주체별 분류 ········································72
Ⅱ 기수시기별 분류 ········································72
Ⅲ 기수요건별 분류 ········································73
Ⅳ 종료시기별 분류 ········································73
Ⅴ 초과주관적 구성요건 ·································73
제3절 결과반가치와 행위반가치 ····················75
Ⅰ 불법의 의미 ···············································75
Ⅱ 불법의 내용 ···············································75
제2장 구성요건론 / 76
제1절 구성요건의 일반이론 ···························76
Ⅰ 구성요건의 의의 ········································76
Ⅱ 구성요건이론의 발전 ·································76
Ⅲ 구성요건과 위법성의 관계 ························76
Ⅳ 소극적 구성요건표지이론 ··························77
Ⅴ 구성요건의 요소 ········································77
제2절 행위의 주체와 객체 ·····························80
Ⅰ 행위의 주체 ··············································80
Ⅱ 행위의 객체와 보호법익 ····························83
제3절 부작위범 ··············································87
Ⅰ 부작위범과 작위범 ····································87
Ⅱ 진정부작위범과 부진정부작위범 ···············87
Ⅲ 부작위범의 요건 ·······································88
Ⅳ 법적 작위의무 ···········································89
Ⅴ 작위와 부작위의 적용 ·······························90
Ⅵ 관련문제 ···················································92
제4절 인과관계와 객관적 귀속 ······················95
Ⅰ 인과관계의 의의 ·······································95
Ⅱ 인과관계에 관한 학설 ·······························95
Ⅲ 인과관계의 유형 ·······································95
Ⅳ 인과관계의 입증 ·······································98
제5절 구성요건적 고의 ································108
Ⅰ 고의의 개관 ·············································108
Ⅱ 고의의 인식대상 ······································108
Ⅲ 고의의 종류 ·············································109
제6절 구성요건적 착오 ·································118
Ⅰ 구성요건적 착오의 의의 ···························118
Ⅱ 구성요건적 착오의 종류 ···························118
Ⅲ 기타 협의의 착오의 종류 ··························119
Ⅳ 판례와 학설의 해결 ··································119
Ⅴ 사례의 해결 ·············································120
Ⅵ 병발사례 ··················································120
Ⅶ 개괄적 고의 과실 사례 ·····························121
제7절 과실범 ················································123
Ⅰ 과실범의 개관 ··········································123
Ⅱ 과실범의 구성요건 ···································126
Ⅲ 관련문제 ··················································126
Ⅳ 신뢰의 원칙 ·············································135
제8절 결과적 가중범 ····································143
Ⅰ 결과적 가중범의 의미 ······························143
Ⅱ 결과적 가중범의 종류 ······························143
Ⅲ 구성요건 ··················································144
Ⅳ 행위책임주의 ···········································144
Ⅴ 관련문제 ··················································147
제3장 위법성론 / 150
제1절 위법성의 일반이론 ·····························150
Ⅰ 위법성과 불법 ··········································150
Ⅱ 위법성조각사유 ·······································150
Ⅲ 주관적 정당화의사 ···································150
제2절 정당방위 ·············································154
Ⅰ 정당방위의 개념 ······································154
Ⅱ 성립요건 ··················································154
Ⅲ 정당방위의 효과 ······································159
Ⅳ 기타의 방위 ·············································159
제3절 긴급피난 ·············································161
Ⅰ 긴급피난의 개념 ·······································161
Ⅱ 성립요건 ···················································161
Ⅲ 긴급피난의 효과 ······································162
Ⅳ 기타의 피난 ·············································163
Ⅴ 의무의 충돌 ·············································163
제4절 자구행위 ·············································164
Ⅰ 자구행위의 개념 ······································164
Ⅱ 자구행위의 요건 ······································164
Ⅲ 자구행위의 효과 ······································165
Ⅳ 과잉자구행위와 야간과잉자구행위 ··········165
제5절 피해자의 승낙 ····································167
Ⅰ 피해자의 동의의 의미 ······························167
Ⅱ 피해자의 동의를 양해로 해석하는 경우 ··· 167
Ⅲ 피해자의 동의를 피해자의 승낙으로
해석하는 경우 ··········································168
Ⅳ 추정적 승낙 ·············································169
제6절 정당행위 ··············································171
Ⅰ 법령에 의한 행위 ······································171
Ⅱ 업무로 인한 행위 ·····································177
Ⅲ 기타 사회상규에 합치하는 행위 ···············179
제4장 책임론 / 188
제1절 책임의 일반이론 ································188
Ⅰ 책임주의 ··················································188
Ⅱ 책임의 근거 ·············································188
Ⅲ 책임의 본질 ·············································189
Ⅳ 범죄체계론 ··············································189
제2절 책임능력 ·············································194
Ⅰ 책임능력의 개념 ······································194
Ⅱ 책임무능력자 ···········································194
Ⅲ 한정책임능력자 ·······································199
Ⅳ 원인에 있어서 자유로운 행위 ··················201
제3절 위법성의 인식과 금지착오 ················203
Ⅰ 금지착오의 개념 ·····································203
Ⅱ 금지착오의 유형 ·····································203
Ⅲ 금지착오의 효과 ·····································204
Ⅳ 위법성조각사유의 전제사실의 착오 ·········212
제4절 기대가능성 ·········································218
Ⅰ 기대가능성의 판단기준 ····························218
Ⅱ 기대불가능성의 유형 ·······························219
Ⅲ 강요된 행위 ············································220
제5장 미수론 / 223
제1절 미수범의 일반이론 ·····························223
Ⅰ 범죄실현의 단계 ······································223
Ⅱ 미수범의 유형 ·········································223
Ⅲ 미수범의 처벌근거 ··································223
제2절 음모·예비죄 ·······································224
Ⅰ 선전·선동의 개념 ····································224
Ⅱ 음모·예비의 개념 ····································224
Ⅲ 음모예비의 법적성격 ·······························225
Ⅳ 관련문제 ·················································226
제3절 장애미수 ············································229
Ⅰ 개념 ························································229
Ⅱ 성립요건 ·················································229
Ⅲ 실행의 착수 ·············································229
제4절 중지미수 ············································236
Ⅰ 개념 ························································236
Ⅱ 성립요건 ·················································236
Ⅲ 자의성 ·····················································236
Ⅳ 범행의 중지 또는 결과의 방지 ················239
Ⅴ 공범과 중지미수 ······································239
Ⅵ 관련문제 ··················································241
제5절 불능미수 ············································243
Ⅰ 개념 ························································243
Ⅱ 성립요건 ·················································243
Ⅲ 불능미수의 판단 ······································244
제6장 공범론 / 249
제1절 공범의 일반이론 ································249
Ⅰ 서설 ························································249
Ⅱ 필요적 공범 ············································249
Ⅲ 정범과 공범의 관계(다수설) ·····················252
Ⅳ 기도된 교사·방조 ····································253
제2절 간접정범 ············································257
Ⅰ 정범과 공범의 구별 ·································257
Ⅱ 간접정범의 이용행위 ·······························259
Ⅲ 간접정범의 처벌 ·····································260
Ⅳ 간접정범과 착오 ·····································260
Ⅴ 특수교사·방조 ·········································261
Ⅵ 각칙에 문제되는 간접정범 ·······················261
제3절 공동정범 ············································264
Ⅰ 공동정범의 개념 ······································264
Ⅱ 주관적 요건 ·············································265
Ⅲ 객관적 요건 ·············································271
Ⅳ 공동정범의 책임 ······································276
Ⅴ 동시범 ·····················································277
Ⅵ 합동범 ·····················································279
제4절 교사범 ················································281
Ⅰ 개념 ·························································281
Ⅱ 성립요건 ··················································281
Ⅲ 교사의 착오 ············································285
Ⅳ 관련문제 ·················································286
제5절 방조범 ················································287
Ⅰ 총칙상 방조범의 개념 ·····························287
Ⅱ 성립요건 ··················································287
Ⅲ 방조의 착오 ·············································291
Ⅳ 관련문제 ··················································291
제6절 공범과 신분 ·······································294
Ⅰ 형법상 신분 ············································294
Ⅱ 적극적 신분(제33조의 해석) ·····················295
Ⅲ 소극적 신분 ············································298
제7장 죄수론 / 303
제1절 죄수의 일반이론 ································303
Ⅰ 죄수론의 의의 ·········································303
Ⅱ 죄수결정의 기준 ·····································303
제2절 일죄 ···················································304
Ⅰ 법조경합 ·················································304
Ⅱ 포괄일죄 ·················································308
제3절 상상적 경합 ········································315
Ⅰ 개념 ·························································315
Ⅱ 요건 ·························································315
Ⅲ 효과 ·························································315
제4절 실체적 경합 ·······································320
Ⅰ 경합범의 개념 ·········································320
Ⅱ 실체법적 요건 ·········································320
Ⅲ 소송법적 요건 ·········································320
Ⅳ 경합범의 효과 ·········································322
.
형벌론
제1절 형벌의 종류 ·······································334
Ⅰ 형벌의 종류 ············································334
Ⅱ 사형 ························································334
Ⅲ 자유형 ·····················································334
Ⅳ 명예형 ·····················································335
Ⅴ 재산형 ·····················································335
제2절 형의 양정 ···········································344
Ⅰ 양형단계 ·················································344
Ⅱ 양형기준 ·················································344
Ⅲ 형의 가중 감경 면제 ·······························344
Ⅳ 미결구금 ·················································347
Ⅴ 판결의 공시 ············································348
Ⅵ 자수와 자복 ············································349
Ⅶ 형사절차의 개관 ······································351
제3절 누범 ···················································352
Ⅰ 서설 ························································352
Ⅱ 누범가중의 요건 ······································352
Ⅲ 누범의 효과 ············································354
Ⅳ 특가법상 누범 ·········································355
제4절 선고유예·집행유예·가석방 ················357
Ⅰ 선고유예 ·················································357
Ⅱ 집행유예 ·················································359
Ⅲ 가석방 ·····················································363
제5절 형의 시효·소멸·기간 ·························368
Ⅰ 형의 시효 ················································368
Ⅱ 형의 소멸 ················································369
Ⅲ 사면·감형·복권 ·······································370
Ⅳ 형의 기간 ·················································371
제6절 보안처분 ············································372
Ⅰ 서설 ·························································372
Ⅱ 형벌과 보안처분의 관계 ··························372
Ⅲ 현행법상 보안처분 ··································372
제2부 형법 각론
개인적 법익에 대한 죄
제1장 생명과 신체에 대한 죄 / 378
제1절 살인의 죄 ···········································378
Ⅰ 서설 ························································378
Ⅱ 살인죄 ·····················································378
Ⅲ 존속살해죄 ··············································381
Ⅳ 영아살해죄 ··············································382
Ⅴ 기타범죄 ·················································383
제2절 상해와 폭행의 죄 ·······························385
Ⅰ 서설 ························································385
Ⅱ 상해죄와 폭행죄의 비교 ··························385
Ⅲ 상해죄 ·····················································386
Ⅳ 폭행죄 ·····················································390
제3절 과실치사상의 죄 ································397
Ⅰ 서설 ························································397
Ⅱ 과실치사상죄 ··········································397
제4절 낙태의 죄 ···········································401
Ⅰ 서설 ·························································401
Ⅱ 낙태죄 ·····················································401
제5절 유기와 학대의 죄 ······························403
Ⅰ 서설 ························································403
Ⅱ 유기죄 ·····················································403
Ⅲ 기타 범죄 ················································405
제2장 자유에 대한 죄 / 407
제1절 협박의 죄 ···········································407
Ⅰ 서설 ························································407
Ⅱ 협박죄 ·····················································407
Ⅲ 기타 범죄 ·················································413
제2절 강요의 죄 ···········································414
Ⅰ 서설 ·························································414
Ⅱ 강요죄 ·····················································414
Ⅲ 기타 범죄 ·················································416
제3절 체포와 감금의 죄 ·······························418
Ⅰ 서설 ·························································418
Ⅱ 체포·감금죄 ·············································418
Ⅲ 기타 범죄 ·················································421
제4절 약취와 유인의 죄 ·······························423
Ⅰ 서설 ························································423
Ⅱ 조문의 분석 - 2013년 개정 ·····················423
Ⅲ 미성년자 약취·유인죄 ·····························424
Ⅳ 기타 범죄 ················································427
제5절 강간과 추행의 죄 ······························430
Ⅰ 서설 ························································430
Ⅱ 조문의 분석 ············································430
Ⅲ 강간죄 ·····················································430
Ⅳ 기타 범죄 ················································434
Ⅴ 성폭력범죄의 처벌 등에 관한 특례법 ····· 440
Ⅵ 아동·청소년의 성보호에 관한 법률 ·········443
제3장 명예와 신용에 대한 죄 / 444
제1절 명예에 관한 죄 ··································444
Ⅰ 서설 ························································444
Ⅱ 조문의 분석 ············································444
Ⅲ 명예훼손죄 ··············································444
Ⅳ 기타 범죄 ················································455
제2절 신용·업무·경매에 관한 죄 ·················461
Ⅰ 서설 ·························································461
Ⅱ 조문의 분석 ·············································461
Ⅲ 신용훼손죄 ··············································461
Ⅳ 업무방해죄 ··············································463
Ⅴ 기타 범죄 ················································476
제4장 사생활의 평온에 대한 죄 / 480
제1절 비밀침해의 죄 ···································480
Ⅰ 서설 ························································480
Ⅱ 개인의 비밀 ············································480
제2절 주거침입의 죄 ····································482
Ⅰ 서설 ························································482
Ⅱ 조문의 분석 ············································483
Ⅲ 주거침입죄 ··············································483
Ⅳ 기타 범죄 ················································488
제5장 재산에 대한 죄 / 491
제1절 재산죄의 기본개념 ·····························491
Ⅰ 재산죄의 분류 ··········································491
Ⅱ 재산죄의 객체 ·········································492
Ⅲ 형법상 점유 ············································496
Ⅳ 불법영득의사 ···········································501
Ⅴ 친족상도례 ··············································505
제2절 절도의 죄 ··········································509
Ⅰ 서설 ························································509
Ⅱ 절도죄 ·····················································509
Ⅲ 기타 범죄 ·················································515
제3절 강도의 죄 ············································517
Ⅰ 서설 ·························································517
Ⅱ 강도죄 ······················································517
Ⅲ 특수강도죄 ··············································520
Ⅳ 준강도죄 ··················································521
Ⅴ 기타 범죄 ················································525
제4절 사기의 죄 ···········································531
Ⅰ 서설 ·························································531
Ⅱ 사기죄 ·····················································531
Ⅲ 삼각사기 ·················································556
Ⅳ 신용카드 관련 범죄 ·································562
Ⅴ 기타 범죄 ················································567
제5절 공갈의 죄 ············································571
Ⅰ 서설 ·························································571
Ⅱ 공갈죄 ······················································571
Ⅲ 기타 범죄 ················································576
제6절 횡령의 죄 ···········································577
Ⅰ 서설 ·························································577
Ⅱ 횡령죄의 본질 ·········································577
Ⅲ 횡령죄 ·····················································577
Ⅳ 기타의 횡령죄 ·········································598
Ⅴ 기타 범죄 ················································605
제7절 배임의 죄 ··········································606
Ⅰ 서설 ························································606
Ⅱ 배임죄의 본질 ·········································606
Ⅲ 배임죄 ·····················································606
Ⅳ 기타 범죄 ················································633
제8절 장물의 죄 ··········································640
Ⅰ 서설 ························································640
Ⅱ 장물죄의 본질 ·········································640
Ⅲ 장물의 개념 ·············································641
Ⅳ 장물죄 ·····················································643
Ⅴ 기타 범죄 ················································647
제9절 손괴의 죄 ···········································649
Ⅰ 서설 ························································649
Ⅱ 재물손괴죄 ··············································649
Ⅲ 기타 범죄 ················································653
제10절 권리행사를 방해하는 죄 ··················655
Ⅰ 서설 ························································655
Ⅱ 권리행사방해죄 ·······································655
Ⅲ 기타 범죄 ················································660
Ⅳ 강제집행면탈죄 ·······································660
사회적 법익에 대한 죄
제1장 공공의 안전과 평온에 대한 죄 / 670
제1절 공안을 해하는 죄 ·······························670
Ⅰ 서설 ························································670
Ⅱ 공안을 해하는 죄 ····································670
제2절 폭발물에 관한 죄 ·······························674
Ⅰ 서설 ························································674
Ⅱ 폭발물에 관한 죄 ····································674
제3절 방화와 실화의 죄 ·······························676
Ⅰ 서설 ························································676
Ⅱ 현주건조물등방화죄 ································677
Ⅲ 기타 범죄 ················································679
제4절 일수와 수리에 관한 죄 ······················683
Ⅰ 서설 ························································683
Ⅱ 일수와 수리에 관한 죄 ····························683
제5절 교통방해의 죄 ···································686
Ⅰ 서설 ························································686
Ⅱ 일반교통방해죄 ·······································686
Ⅲ 기타 범죄 ················································689
제2장 공중의 건강에 대한 죄 / 691
제1절 음용수에 관한 죄 ·······························691
Ⅰ 서설 ·························································691
Ⅱ 음용수에 관한 죄 ·····································691
제2절 아편에 관한 죄 ··································693
Ⅰ 서설 ························································693
Ⅱ 아편에 관한 죄 ········································693
제3장 공공의 신용에 대한 죄 / 695
제1절 통화에 관한 죄 ··································695
Ⅰ 서설 ························································695
Ⅱ 통화위조·변조죄 ·····································695
Ⅲ 기타 범죄 ················································697
제2절 유가증권·인지·우표에 관한 죄 ·········699
Ⅰ 서설 ························································699
Ⅱ 유가증권 위조·변조죄 ·····························699
Ⅲ 자격모용에 의한 유가증권작성죄 ············704Ⅳ
허위유가증권작성죄 ································705
Ⅴ 기타 범죄 ················································707
제3절 문서에 관한 죄 ···································710
Ⅰ 서설 ·························································710
Ⅱ 문서 위조·변조죄 ·····································710
Ⅲ 자격모용에 의한 문서작성죄 ···················724
Ⅳ 전자기록 위작·변작죄 ·····························726
Ⅴ 허위문서작성죄 ·······································728
Ⅵ 기타 범죄 ·················································741
제4절 인장에 관한 죄 ··································745
Ⅰ 서설 ························································745
Ⅱ 인장에 관한 죄 ········································745
제4장 사회의 도덕에 대한 죄 / 748
제1절 성풍속에 관한 죄 ·······························748
Ⅰ 서설 ························································748
Ⅱ 성풍속에 관한 죄 ····································748
제2절 도박과 복표에 관한 죄 ······················752
Ⅰ 서설 ·························································752
Ⅱ 도박과 복표에 관한 죄 ····························752
제3절 신앙에 관한 죄 ··································756
Ⅰ 서설 ························································756
Ⅱ 신앙에 관한 죄 ········································756
국가적 법익에 대한 죄
제1장 국가의 존립과 권위에 대한 죄 / 762
제1절 내란의 죄 ···········································762
Ⅰ 서설 ·························································762
Ⅱ 내란죄 ·····················································762
제2절 외환의 죄 ···········································764
Ⅰ 서설 ························································764
Ⅱ 외환죄 ·····················································764
제3절 국기에 관한 죄 ··································769
Ⅰ 서설 ························································769
Ⅱ 국기에 관한 죄 ········································769
제4절 국교에 관한 죄 ··································770
Ⅰ 서설 ························································770
Ⅱ 국교에 관한 죄 ········································770
제2장 국가의 기능에 대한 죄 / 773
제1절 공무원의 직무에 관한 죄 ···················773
Ⅰ 서설 ·························································773
Ⅱ 공무원의 개념 ·········································773
Ⅲ 직무유기죄 ··············································773
Ⅳ 직권남용죄 ··············································778
Ⅴ 기타 범죄 ·················································781
제2절 뇌물에 관한 죄 ··································784
Ⅰ 서설 ························································784
Ⅱ 뇌물성 ·····················································784
Ⅲ 뇌물에 관한 죄 ········································790
Ⅳ 뇌물의 몰수·추징 ···································804
제3절 공무방해에 관한 죄 ···························808
Ⅰ 서설 ························································808
Ⅱ 공무집행방해죄 ······································808
Ⅲ 위계에 의한 공무집행방해죄 ····················817
Ⅳ 기타 범죄 ················································822
제4절 도주죄 ················································832
Ⅰ 서설 ························································832
Ⅱ 도주죄 ·····················································832
제5절 범인은닉과 증거인멸의 죄 ················834
Ⅰ 서설 ························································834
Ⅱ 범인은닉죄 ··············································834
Ⅲ 증거인멸죄 ··············································839
Ⅳ 기타 범죄 ·················································841
Ⅴ 친족간 특례 ············································842
제6절 위증죄·무고죄 ···································843
Ⅰ 서설 ························································843
Ⅱ 위증죄 ·····················································843
Ⅲ 기타 위증죄 ············································849
Ⅳ 무고죄 ·····················································849
Ⅴ 자수·자백의 특례 ····································858
