최근 법학전문대학원 협의회에서는 형사법학회에 의뢰하여 형법표준판례 543선을 선정하여, 향후 로스쿨교육과 변호사시험의 출제를 표준판례를 중심으로 진행하겠다는 의사를 강력히 피력 하였다. 필자는 표준판례 543선이 선정·발표된 직후, 이를 면밀히 분석하였고, 그 중 약 130 여개가 기존 수험서 등에서 잘 소개되지 않은 판례였다는 점도 파악하게 되었다.
수험서는 모름지기 수험의 현실에 즉각적인 대응을 하여야 한다. 표준판례가 선정된 이상 향후 표준판례를 중심으로 출제가 이루어질 것이 명약관하하다. 이에 필자는 표준판례 543개를 철저히 분석하여 전면수록하였고, 수험생의 편의를 위해 표준판례 옆에 標準 이라는 표시를 해두었다. 한편 변호사시험에서는 기출문제가 50% 정도 반영된다는 현실도 고려하여 변호사 시험과 법학전문대학원협의회의 모의시험의 기출문제들 역시도 철저히 분석·반영하였다.
또한, 표준판례를 선정하여 수험생의 학습부담을 줄여주었다는 것은 각 판례의 사실관계와 이론적 대응도 심도있게 출제하겠다는 취지를 함의하는 것으로 볼 수 있는바, 표준판 례들의 경우 사실관계까지도 최대한 소개하였고, 학설, 판례, 검토를 판례에 맞게 실전답 안작성 분량으로 요약정리하였다. 특히, 판례를 중심으로 검토의 논거를 제시하였다는 점에서 변호사시험뿐 아니라 5급공채, 입법고시, 법원행시, 법무사시험 등에서도 효율적인 수험서로 활용될 수 있게 하였다.
본서의 개괄적 특징은 다음과 같다.
첫째, 법학전문대학원 협의회에서 선정한 표준판례 543개를 빠짐없이 수록하였고, 표준판 례의 경우 사실관계까지도 자세히 소개하였다.
둘째, 2020년 6월 20일까지의 최신판례와 개정법령(형법, 성폭력처벌법 등의 개정내용)을 절저히 반영하였다. 특히, 부동산이중저당의 경우에도 배임죄가 성립하지 않는다는 2020.6.18. 전원합의체 판례는 언론보도를 확인하여 인쇄 직전에 반영하였다.
셋째, 변호사시험과 법학전문대학원협의회의 모의시험 전체에 대해 기출표시를 해둠으로써 학습의 효율을 도모하였다.
넷째, 사례형과 기록형을 통합대비할 수 있도록 판례의 논거를 중심으로 출제가능한 주관식 논점을 모두 요약정리하였다. 특히, 실전 답안에 서술할 수 있을 정도의 분량을 맞추는데 신경을 썼다.
표준판례가 선정된 이후 형법수험서를 다시금 서술함에는 뼈를 깎는 고통과 고도의 집중이 필요하였다. 기존의 형법책들에 견주어 환골탈태의 수준으로 책을 변모시켜야 했기 때문이다. 본서가 나오기까지 많은 이들이 도움이 있었다. 이종배님과 방현호님은 내용적으로나 기술적으로 많은 영감을 제공하였고, 출판과 인쇄과정에서 홍민교, 김동화, 김백선, 문지수님의 헌신이 있었다. 그들의 도움이 없었다면, 결코 본서가 이 시기에 출간될 수 없었을 것이다. 무엇보다 수강생분들과 독자분들은 본서집필에 있어 최고의 스승이자 집필의 기준점이 되었다. 모든 이들에게 감사의 말씀을 전하고 그들의 성공을 간절히 기원하며 본서의 서문을 마무리하기로 한다.
2020. 6. 21.
필자 정주형
총 칙
제1편 서론
제1장?형법의 기본개념
제1절 죄형법정주의 ··························································································· 1
제2절 형법이론 ······························································································· 16
제2장?형법의 적용범위
제1절 시간적 적용범위 ···················································································· 18
제2절 장소적 적용범위 ··················································································· 25
제3절 인적 적용범위 ······················································································ 30
제2편 범죄론
제1장?범죄론의 기초
제1절 범죄의 의의와 종류 ·············································································· 32
제2절 행위론 ·································································································· 35
제3절 범죄체계론 ··························································································· 36
제2장?구성요건론
제1절 구성요건 이론 ······················································································· 37
제2절 행위반가치와 결과반가치 ····································································· 39
제3절 범죄의 주체와 객체 ·············································································· 41
제4절 부작위범 ······························································································· 46
제5절 인과관계와 객관적 귀속이론 ································································ 57
제6절 구성요건적 고의 ··················································································· 64
제7절 구성요건적 착오(사실의 착오) ······························································ 70
제8절 과실범 ··································································································· 77
제9절 결과적 가중범 ······················································································ 88
제3장?위법성론
제1절 위법성의 일반이론 ················································································ 98
제2절 정당방위 ····························································································· 100
제3절 긴급피난 ······························································································ 111
제4절 자구행위 ······························································································ 118
제5절 피해자의 승낙 ····················································································· 121
제6절 정당행위 ····························································································· 126
제4장?책임론
제1절 책임이론 ······························································································ 140
제2절 책임능력 ····························································································· 143
제3절 위법성의 인식 ····················································································· 151
제4절 금지착오(위법성의 착오) ····································································· 155
제5절 기대가능성 ·························································································· 164
제5장?미수론
제1절 범죄의 실현단계 ·················································································· 170
제2절 예비·음모죄 ······················································································· 171
제3절 미수범의 일반이론 ·············································································· 179
제4절 장애미수 ····························································································· 183
제5절 중지미수 ····························································································· 190
제6절 불능미수 ····························································································· 197
제6장?정범 및 공범론
제1절 정범과 공범의 일반이론 ····································································· 203
제2절 공동정범이론 ······················································································· 211
제3절 간접정범 ····························································································· 226
제4절 교사범 ································································································ 233
제5절 종범(방조범) ······················································································· 242
제6절 공범과 신분 ······················································································· 250
제7장?죄수론
제1절 죄수의 일반이론 ·················································································· 257
제2절 일 죄 ·································································································· 259
제3절 수 죄 ·································································································· 269
제3편 형벌론
제1절 형벌의 종류 ························································································ 284
제2절 형의 양정(양형) ·················································································· 295
제3절 누 범 ·································································································· 304
제4절 형의 유예제도 ···················································································· 308
제5절 형의 시효와 소멸 ················································································ 321
제6절 보안처분 ····························································································· 325
각 칙
제1편 개인적 법익에 관한 죄
제1장?생명과 신체에 대한 죄
제1절 살인의 죄 ···························································································· 332
제2절 상해와 폭행의 죄 ··············································································· 343
제3절 과실치사상의 죄 ················································································· 361
제4절 낙태의 죄 ··························································································· 363
제5절 유기와 학대의 죄 ··············································································· 367
제2장?자유에 관한 죄
제1절 협박의 죄 ···························································································· 373
제2절 강요의 죄 ··························································································· 381
제3절 체포와 감금의 죄 ··············································································· 386
제4절 약취와 유인 및 인신매매의 죄 ··························································· 392
제5절 강간과 추행의 죄 ··············································································· 400
제3장?명예와 신용에 관한 죄
제1절 명예에 관한 죄 ··················································································· 427
제2절 신용·업무와 경매에 관한 죄 ····························································· 447
제4장?사생활의 평온에 관한 죄
제1절 비밀침해의 죄 ····················································································· 463
제2절 주거침입의 죄 ···················································································· 466
제5장?재산의 대한 죄
제1절 재산죄 일반론 ····················································································· 478
제2절 절도의 죄 ··························································································· 496
제3절 강도의 죄 ··························································································· 510
제4절 사기의 죄 ··························································································· 531
제5절 공갈의 죄 ··························································································· 576
제6절 횡령의 죄 ··························································································· 583
제7절 배임의 죄 ···························································································· 611
제8절 장물의 죄 ··························································································· 641
제9절 손괴의 죄 ··························································································· 654
제10절 권리행사를 방해하는 죄 ··································································· 660
제2편 사회적 법익에 관한 죄
제1장?공공의 안전과 평온에 대한 죄
제1절 공안을 해하는 죄 ················································································ 672
제2절 폭발물에 관한 죄 ··············································································· 679
제3절 방화와 실화의 죄 ··············································································· 681
제4절 일수와 수리에 관한 죄 ······································································ 694
제5절 교통방해의 죄 ···················································································· 697
제2장?공공의 건강에 관한 죄
제1절 음용수에 관한 죄 ················································································ 702
제2절 아편에 관한 죄 ··················································································· 704
제3장?공공의 신용에 관한 죄
제1절 통화에 관한 죄 ··················································································· 705
제2절 유가증권 및 우표와 인지에 대한 죄 ·················································· 709
제3절 문서에 관한 죄 ··················································································· 723
제4절 인장에 관한 죄 ··················································································· 766
제4장?사회도덕에 대한 죄
제1절 성풍속을 해하는 죄 ············································································ 769
제2절 도박과 복표에 관한 죄 ······································································· 776
제3절 신앙에 관한 죄 ··················································································· 781
제3편 국가적 법익에 관한 죄
제1장?국가의 존립에 대한 죄
제1절 내란의 죄 ···························································································· 786
제2절 외환의 죄 ··························································································· 790
제3절 국기에 관한 죄 ··················································································· 796
제4절 국교에 관한 죄 ··················································································· 797
제2장?국가의 기능에 대한 죄
제1절 공무원의 직무에 관한 죄 ···································································· 799
제2절 공무방해에 관한 죄 ············································································ 834
제3절 도주와 범인은닉의 죄 ········································································ 853
제4절 위증과 증거인멸의 죄 ········································································ 865
제5절 무고의 죄 ··························································································· 881
판례색인 ····················································································································· 888
