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2020 형법 3년간 판례정리 - 17.7~20.6

2020 형법 3년간 판례정리 - 17.7~20.6

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“형법 3년간 판례정리”에 대하여

본 “형법 3년간 판례정리”는 ‘2017년 하반기부터 2020년 상반기까지’의 법원공보에 수록된 판례와 미간행 판례를 정리한 자료이다. 본서의 특징을 설명하면 다음과 같다.

1. 정확한 ‘사실관계’의 정리․소개
판례는 과거에 발생한 범죄에 대한 대법원의 최종적인 판단이다. 그러므로 그 범죄의 사실관계를 모르고서 판례를 공부한다는 것은 ‘어떤 영화를 보지도 않고 또한 그 줄거리도 모르면서 그 영화에 대해서 논하는 것’과 같이 실로 무의미한 일이다. 그래서 본서에서는 대법원 판례에 나타난 사실관계를 정리하여 소개함으로써 법조문과 법리 적용의 전제가 되는 사안을 정확하게 파악할 수 있도록 하였다.

2. ‘주요쟁점’의 명확한 부각
본서에 수록된 판례들은 전부 최종심인 대법원의 판례이다. 사건이 제1심이나 항소심에서 종결되지 않고 대법원에까지 올라왔다는 것은 그 사건에 무엇인가 문제가 있었기 때문이다. 그러므로 대법원 판례를 정확하게 이해하기 위해서는 그 사건에서 검사와 피고인 및 변호인간에 다투어진 “쟁점”이 무엇인지를 알아야 한다. 그래서 본서에서는 그러한 쟁점들을 ‘질문’의 형식으로 부각시킴으로써 그 질문에 대한 대법원의 ‘답변’인 판례의 내용을 보다 정확하게 이해할 수 있도록 하였다.

3. 필요한 ‘판결이유’의 발췌 소개
대법원은 ‘판결문’의 내용을 ‘판결요지’의 형식으로 정리하여 제공하고 있는데, 때로는 그 판결요지의 내용만으로는 판례의 내용을 정확하게 파악하는 것이 어려운 경우가 있다. 이에 본서에서는 필요한 경우에는 ‘판결이유’ 중에서 중요한 부분을 발췌하여 소개함으로써 판례의 정확한 이해에 도움이 되도록 하였다.

4. 꼭 읽고 기억해야 할 ‘중요부분’ 강조
최근의 대법원 판례들은 그 판결문의 분량이 상당히 많다. 판결문 본문의 경우에는 적게는 수 페이지에서 많게는 백여 페이지를 넘는 경우도 있고, 심지어는 판결요지만 수 페이지가 되는 경우도 많다. 이에 본서에서는 객관식 또는 선택형 문제의 지문으로 출제될 가능성이 있는 부분에 대해서는 ‘고딕 내지 underline 등’으로 강조를 함으로써 최종정리시에 효과적으로 활용할 수 있도록 하였다.

아무쪼록 본서의 적절한 활용으로 합격의 영광을 안기를 간절히 기원하면서…
2020.6.17.
법학박사 신 호 진
신호진

…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
・위임입법의 한계(大判 2018도7989) ········································································ 3
・소급효금지의 원칙(大判 2015도17936) ··································································· 7
・명확성의 원칙(大決 2018초기306) ········································································· 9
・유추해석금지의 원칙(大判 2015도8335, 전원합의체 판결) ······································· 11
[2] 형법의 시간적 적용범위 ·················································································· 22
・「형법」 제1조 제2항과 경과규정의 관계(大判 2016도16757) ··································· 22
・「형법」 제1조 제2항과 동기설(大判 2015도2390) ··················································· 23
[3] 형법의 장소적 적용범위 ·················································································· 24
・외국에서의 미결구금에 대한 형법 제7조의 유추적용 여부(大判 2017도5977, 전원합의체 판결) ······· 24
[4] 범죄의 의의와 종류 ························································································ 27
・즉시범과 계속범의 구별실익(大判 2017도7937) ····················································· 27
[5] 행위의 주체와 객체 ························································································ 28
・법인 설립 이전의 행위에 대한 양벌규정의 적용 여부(大判 2015도10388) ················· 28
・대표자의 위법행위에 대한 법인 처벌의 근거(大判 2013도6962) ······························· 29
・양벌규정에 의한 벌칙규정의 수범자 영역의 확대(大判 2017도13982) ······················· 30
[6] 정당행위 ······································································································· 32
・사용자의 직장폐쇄의 정당성(大判 2013도7896) ····················································· 32
・민법상 자력구제의 요건(大判 2017도9999) ··························································· 33
・‘사회상규에 위배되지 아니하는 행위’의 요건(大判 2017도2758) ······························ 34
[7] 책임능력 ······································································································· 35
・형법 제10조의 심신장애의 판단방법 등(大判 2018도7658) ······································ 35
[8] 기대가능성 ···································································································· 37
・병역법 제88조 제1항의 ‘정당한 사유’의 의미(大判 2016도10912, 전원합의체 판결) ··· 37
[9] 불능미수 ······································································································· 41
・불능미수의 성립요건(大判 2019도97) ··································································· 41
・준강간죄의 불능미수(大判 2018도16002, 전원합의체 판결) ····································· 42
[10] 정범·공범의 일반이론 ··················································································· 46
・대향범과 형법총칙상의 공범규정의 적용 여부(大判 2017도4240) ····························· 46
[11] 간접정범 ····································································································· 48
・피해자의 행위를 이용한 경우(大判 2016도17733) ·················································· 48
[12] 공동정범 ····································································································· 49
・공모공동정범의 성립요건(大判 2017도14322, 전원합의체 판결) ······························· 49
[13] 종 범 ········································································································· 51
・종범의 성립요건(大判 2016도12865) ···································································· 51
[14] 공범과 신분 ································································································ 52
・비신분자가 가중적 신분자의 범행에 가담한 경우(大判 2018도10047) ······················· 52
[15] 수 죄 ········································································································· 53
・포괄일죄와 실체적 경합범의 구별기준(大判 2018도10779) ······································ 53
・재심대상사건과 재심판결 확정 전에 범한 범죄의 관계(大判 2018도20698, 전원합의체 판결) ·· 54
・「형법」 제39조 제1항이 적용되는 경우(大判 2018도14863) ····································· 56
・사후적 경합범에서 형 감경의 방법(大判 2017도14609, 전원합의체 판결) ················· 57
[16] 형벌의 종류 ································································································ 60
・몰수와 추징(大判 2017도8611) ············································································ 60
[17] 누 범 ········································································································· 61
・누범전과와 형 선고의 유효성(大判 2017도4019) ··································································· 61
・「특정범죄 가중처벌 등에 관한 법률」상의 누범전과의 계산방법(大判 2019도17381) ······················ 62
・「특정범죄 가중처벌 등에 관한 법률」 제5조의4 제5항의 누범전과의 의미(大判 2019도18891) ········ 64
[18] 집행유예·선고유예·가석방 ·············································································· 66
・집행유예 결격사유(大判 2018도17589) ································································· 66
・사후적 경합범에 대한 선고유예 여부(大判 2018오1) ·············································· 67
・선고유예 실효 결정의 시기(大決 2017모3459) ······················································· 68

…… 형 법 각 론 ……
[1] 상해와 폭행의 죄 ··························································································· 69
・특수상해죄에서의 ‘위험한 물건’/ 형법 제1조 제2항의 적용 여부(大判 2015도5854) ··· 69
・상습폭행죄의 죄수와 소추조건(大判 2017도10956) ················································ 71
[2] 과실치사상의 죄 ···························································································· 72
・업무상과실치사상죄에서의 ‘업무’의 의미(大判 2016도16738) ·································· 72
・업무상과실치상죄와 「교통사고처리 특례법」의 관계(大判 2016도21034) ···················· 73
[3] 강요의 죄 ····································································································· 74
・강요죄의 수단으로서의 협박의 의미(大判 2015도16696) ······················································· 74
[4] 체포와 감금의 죄 ··························································································· 76
・체포죄의 실행의 착수시기와 기수시기(大判 2016도18713) ······································ 76
・부작위에 의한 감금(大判 2017도7134) ································································· 77
[5] 약취·유인 및 인신매매의 죄 ············································································ 78
・보호·감독자의 미성년자약취죄의 주체성 여부(大判 2015도10032) ···························· 78
[6] 강간과 추행의 죄 ··························································································· 79
・강간의 수단인 폭행의 정도와 그 판단기준 등(大判 2017도21249) ··························· 79
・강간죄에서 폭행·협박과 간음행위의 선후관계(大判 2016도16948) ···························· 81
・강제추행죄에서의 폭행과 추행의 정도(大判 2019도15994) ······································ 82
・준강간죄의 실행의 착수시기(大判 2018도19295) ··················································· 84
・강간치상죄나 강제추행치상죄에 있어서의 ‘상해’의 의미(大判 2017도3196) ··············· 85
・위력에 의한 심신미약자 추행죄의 성립 여부(大判 2019도3341) ······························· 86
[7] 명예에 관한 죄 ······························································································ 93
・공직자에 대한 명예훼손 등(大判 2016도14678) ····················································· 93
・‘사실의 적시’와 ‘의견 표현’의 구별기준(大判 2017도15628) ···································· 95
・명예훼손죄의 고의(大判 2016도15819) ································································· 97
・질문과 명예훼손죄의 고의(大判 2018도4200) ························································ 98
・형법 제310조와 공공의 이익(大判 2016도8557) ···················································· 99
・‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계(大判 2018도15868) ··········· 100
・무례한 표현과 모욕의 관계(大判 2017도2661) ····················································· 102
[8] 신용·업무와 경매에 관한 죄 ·········································································· 103
・업무방해죄에서 ‘업무’의 의미(大判 2014도3270) ·················································· 103
・업무방해죄에서 ‘위계’의 의미(大判 2016도18858) ················································ 104
・업무방해죄에서 ‘위력’의 의미(大判 2017도12541) ················································ 105
・부작위에 의한 위력의 인정요건(大判 2017도13211) ············································· 106
・위계·위력에 의한 업무방해죄의 성립요건 등(大判 2017도19499) ···························· 107
[9] 주거침입의 죄 ····························································································· 111
・주거침입죄의 객체와 위요지(大判 2019도16484) ·················································· 111
・위요지의 요건(大判 2017도690) ········································································· 112
・상습절도죄와 주거침입죄의 관계(大判 2017도4044) ············································· 113
[10] 재산죄의 기본개념 ····················································································· 114
・친족상도례의 적용효과(大判 2016도6757) ··························································· 114
[11] 사기의 죄 ·································································································· 115
・기망행위에 의하여 국가적·공공적 법익을 침해한 경우(大判 2019도2003) ················ 115
・규정을 위반한 공사도급계약체결과 사기죄(大判 2015도10570) ······························ 116
・처분행위의 기능과 요건(大判 2018도7030) ························································· 118
・사기죄의 피해자(大判 2017도19799) ·································································· 119
・종교행위와 사기죄의 관계(大判 2016도12460) ····················································· 120
・보험계약 체결시의 고지의무 위반(大判 2014도2754) ············································ 121
・요양급여비용·보험금 청구와 기망행위(大判 2017도17699) ····································· 122
・요양급여비용에 대한 사기죄의 성립 여부(大判 2019도1839) ································ 124
・기망행위의 상대방(大判 2017도8449) ································································· 125
・기망행위와 처분행위 사이의 인과관계(大判 2015도12932) ···································· 126
・소송사기죄의 성립요건(大判 2018도13305) ························································· 127
・사기죄의 편취액 산정방법(大判 2017도12649) ····················································· 128
・사기죄의 편취액 산정방법(大判 2018도19772) ····················································· 129
・채무불이행과 사기죄(大判 2017도20682) ···························································· 130
[12] 공갈의 죄 ·································································································· 132
・권리행사와 공갈죄(大判 2018도19493)································································· 132
[13] 횡령의 죄 ·································································································· 133
・횡령죄의 주체와 위탁관계(大判 2017도17494, 전원합의체 판결) ···························· 133
・사기죄의 죄수 및 횡령죄에서의 위탁관계(大判 2017도3894) ································· 137
・불법원인급여와 횡령죄(大判 2017도9254) ··························································· 138
・불법원인급여와 횡령죄(大判 2017도11931) ························································· 139
・횡령죄의 객체(大判 2019도9773) ······································································· 140
・목적·용도를 한정하여 위탁된 금전의 소유관계(大判 2015도18253) ························ 141
・법인·단체의 자금으로 대표자의 소송비용을 지급한 경우(大判 2016도5816) ············· 143
・비자금의 조성·사용과 불법영득의사(大判 2016도9027) ········································· 144
・용도가 엄격하게 제한된 자금을 전용한 경우(大判 2016도16388) ··························· 146
[14] 배임의 죄 ·································································································· 147
・채무자의 동산 양도담보 목적물 보관의무(大判 2019도9756, 전원합의체 판결) ········ 147
・배임죄에서 ‘타인의 사무를 처리하는 자’의 의미(大判 2014도9907) ························ 150
・영업비밀 누설행위(大判 2017도3808) ································································· 152
・배임죄에서 재산상 손해의 의미 및 판단기준(大判 2017도6151) ····························· 153
・대표권 남용에 의한 약속어음 발행의 경우 배임죄의 기수·미수 판단기준(大判 2014도1104, 전원합의체 판결) ·························································································································· 155
・대표권 남용의 경우 배임죄의 기수·미수의 판단기준(大判 2014도9960) ··················· 158
・경영판단과 배임죄의 고의(大判 2015도12633) ····················································· 160
・부동산 이중매매의 형사책임(大判 2017도4027, 전원합의체 판결) ·························· 162
・서면으로 증여한 부동산을 제3자에게 처분한 경우(大判 2016도19308) ··················· 165
・부동산 교환계약과 이중매매의 법리(大判 2016도11337) ······································· 166
・채무자의 저당권설정의무 및 부동산 양도담보설정의무의 성격(大判 2019도14339, 전원합의체 판결) ·· 167
・배임수재죄의 기수시기(大判 2017도11564) ························································· 169
[15] 손괴의 죄 ·································································································· 170
・재물손괴죄에서 ‘효용을 해하는 것’의 의미(大判 2017도20455) ······························ 170
・재물손괴죄에서 ‘효용을 해하는 것’의 의미(大判 2017도18807) ······························ 172
[16] 권리행사를 방해하는 죄 ·············································································· 173
・권리행사방해죄의 객체(大判 2017도4578) ··························································· 173
・강제집행면탈죄의 객체(大判 2017도6229) ··························································· 174
・강제집행면탈죄의 기수시기(大判 2016도847) ······················································· 175
[17] 공안을 해하는 죄 ······················································································· 176
・범죄단체활동죄와 사기죄의 관계(大判 2017도8600) ············································· 176
[18] 교통방해의 죄 ··························································································· 178
・집회·시위와 일반교통방해죄의 관계(大判 2017도1056) ········································· 178
[19] 유가증권에 관한 죄 ···················································································· 180
・구 「부정수표 단속법」 제5조의 수표 위조·변조의 의미(大判 2019도12022) ·············· 180
[20] 문서에 관한 죄 ·························································································· 181
・사문서변조죄의 객체(大判 2014도14924) ···························································· 181
・작성권한자가 문서의 내용 일부를 삭제한 경우(大判 2016도20954) ························ 182
・공문서 변조의 의미(大判 2016도5218) ······························································· 183
・자격모용에 의한 사문서작성죄에서 자격모용의 정도(大判 2017도14560) ················ 184
・공전자기록위작·변작죄의 객체와 유추해석금지의 원칙(大判 2016도19170) ·············· 185
・허위진단서작성죄에서 허위의 대상(大判 2014도15129) ········································· 187
・공전자기록 등 불실기재죄에서 ‘불실의 사실’의 의미(大判 2019도7729) ·················· 189
・‘불실기재’인가의 판단기준(大判 2017도21783) ···················································· 191
・공문서부정행사죄의 객체(大判 2018도2560) ························································ 192
[21] 성풍속에 관한 죄 ······················································································· 193
・공연음란죄에서 음란성의 판단기준(大判 2019도14056) ········································· 193
[22] 공무원의 직무에 관한 죄 ············································································ 195
・공무상비밀누설죄의 객체(大判 2014도11441) ······················································ 195
・직권남용죄와 강요죄의 성립요건(大判 2018도2236, 전원합의체 판결) ···················· 197
・직권남용죄와 강요죄의 성립요건(大判 2019도5186) ············································· 202
・실무자의 행위가 ‘의무 없는 일’에 해당하는지의 판단기준(大判 2019도11698) ········· 205
・뇌물수수죄와 알선수수죄의 성립요건(大判 2017도12346) ······································ 207
・뇌물수수죄와 제3자뇌물수수죄 및 강요죄의 성립 여부(大判 2018도13792,2018도2738, 전원합의체 판결) ························································································································· 209
・공무원이 횡령한 자금을 공범자끼리 수수한 경우(大判 2019도11766) ····················· 214
[23] 공무방해에 관한 죄 ···················································································· 215
・공무원의 직무집행의 적법성(大判 2016도19417) ·················································· 215
・현행범인 체포의 적법요건(大判 2017도21537) ····················································· 217
・형집행장 집행의 적법요건(大判 2017도9458) ······················································ 218
・체포시 미란다 원칙의 고지시기(大判 2017도10866) ············································· 219
・위계에 의한 공무집행방해죄와 직권남용죄(大判 2018도18646) ······························ 220
・공무상표시무효죄의 성립요건(大判 2015도5403) ·················································· 222
[24] 도주와 범인은닉의 죄 ················································································· 223
・범인도피죄의 주체(大判 2015도20396) ······························································· 223
[25] 위증과 증거인멸의 죄 ················································································· 224
・증거은닉죄의 객체(大判 2015도1000) ································································· 224
[26] 무고의 죄 ·································································································· 225
・무고죄에서 허위신고인가의 판단시점(大判 2015도15398) ······································ 225
・고소사건이 불기소처분을 받은 경우 무고죄의 성립 여부(大判 2018도2614) ············ 226
・친고죄에서 고소기간이 경과한 허위사실을 신고한 경우(大判 2018도1818) ·············· 228
・무고죄에서 자백의 절차와 시기(大判 2018도7293) ··············································· 229

참고판례 ··········································································································· 230
판례색인 ··········································································································· 235

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  • 배송 지역 : 전국지역 (해외배송 제한)
  • 배송 비용 : 2,500원 (30,000원 이상 구매시 무료배송)
    ※ 최초 도서결제 후 묶음 배송을 위한 추가 결제 불가
  • 도서산간지방은 추가 배송비가 발생할 수 있습니다.
  • 배송기간 : 발송일로부터 1일~3일(72시간) [도서산간 지방은 2~3일 추가 소요]
    ※ 익일 배송완료를 원칙으로 하지만 택배사 사정에 따라 배송이 지연 될 수 있습니다.