독자들의 호응에 힘입어 본서도 2판을 출간하게 되었다. 2판에서는 1판과 달리 표준판례를 정지문화하여 선택형파트에 수록함으로써 본서는 사례형과 기록형의 최종암기서 뿐 아니라 선택형까지도 포괄하는 단 한권의 핵심암기장으로 진화하였다.
변호사시험은 선택형, 사례형, 기록형 3가지를 당일에 모두 보아야 하는 매우 부담이 큰 시험이다. 2020년 형사법학회와 법학전문대학원협의회에서는 표준 판례 543선을 선정하여 표준판례중심으로 출제를 하겠다고 공언한바 있고, 실제 2021년도 시험에서는 표준판례의 반영비율이 대폭 올라갔다. 그럼에도 불구하고 시중의 많은 책들은 오로지 기출지문만을 중심으로 교재가 서술되어 있을 뿐 제대로 표준판례를 반영하고 있지 못하다. 필자 역시 표준판례를 모두 정리하고 사례화 하는 작업이 매우 곤혹스러운 작업이었음을 고백한다.
실제 시험을 치러보지 않은 사람들은 방대한 양의 변호사시험을 그것도 하루에 선택형, 사례형, 기록형까지 정리하고 시험에 응하는 것이 얼마나 힘든 일인지 이해하지 못한다. 특히나 사례형의 경우에는 준비에서부터 답안작성까지 결코 잘 쓰기가 쉽지 않다. 상당수의 암기장 역시 긴 호흡으로 서술되어 있어 실전 시험에 활용하기 위해서는 암기장을 다시 단권화하는 작업이 필요한 것이 현실이다. 그러나 결코 단권화작업이 용이한 것만은 아니다. 이래저래 방황 하다가 결국 판례만 쓰고 오자는 마음으로 시험에 임하는 경우가 허다한 것이 현실이다.
본서는 수험생들의 고충을 최대한 고려하여, 선택형출제가능성이 있는 모든 표준판례를 정지문화하여 본서 3편에 수록하였고, 사례형의 경우 컴팩트하게 학설, 판례, 검토를 정리하였다. 또한, 형사기록형시험에서 변론요지서의 작성 부분은 무죄판결을 주장하는 변론이 매우 중요하다는 점을 고려하여, 표준판 례를 중심으로 무죄변론요지서를 일목요연하게 정리하였다.
본서의 핵심적인 특징은 다음과 같다.
첫째, 형사법학회가 선정한 표준판례 543선을 철저히 반영하여 사례화하였다.
둘째, 모든 사례형 답안은 3단계범죄체계론에 맞추어 논리적·일관적으로 서술하여, 손쉽게 답안작성법을 터득할 수 있도록 하였다.
셋째, 표준판례 가운데 무죄로 결론 난 사건에 대해서는 기록형 변론요지서(무 죄변론)를 만들어 빠짐없이 정리하였다.
넷째, 사례형과 기록형의 경우, 반드시 답안에 현출해야 할 부분은 언더라인을 쳐둠으로써 수험생들의 학습 효율을 극대화 하고자 하였다.
다섯째, 표준판례 가운데 선택형으로 출제될 확률이 있는 모든 지문은 선택형 정지문으로 정리하였다. 특히, 최신의 기출문제에 반영된 표준판례지문은 최대한 기출문제의 원형을 유지하는 방향에서 정리하였다.
여섯째, 사례와 기록의 경우, 2021년 제10회 변호사시험 및 법학전문대학원협 의회의 모의고사 등에서 출제된 모든 논점을 포함하여 출제가능한 이론문제 또한 빠짐없이 수록함으로써 사례집까지도 대신할 수 있도록 하였다.
암기장을 통한 학습방법은 무엇보다 반복이 우선되어야 한다. 반복하지 않는 암기장은 단지 심적 만족용도 이상도 이하도 아님을 명심할 필요가 있다. 본서로 학습하는 모든 독자들이 목표를 이루길 간절히 바라며 본서의 서문을 마무리하기로 한다.
2021. 5. 10.
필자 정주형
제1편 사례형 연습
사례 1 부작위범 ··································································································· 2
사례 2 개괄적 고의사례 ························································································ 6
사례 3 개괄적 과실사례 ························································································ 8
사례 4 상해죄의 동시범특례 ··················································································10
사례 5 결과적 가중범의 공동정범 ········································································ 12
사례 6 구성요건착오 ···························································································· 14
사례 7 보통살인의 고의로 존속을 살해한 경우 ····················································· 17
사례 8 우연방위와 오상방위 ················································································ 19
사례 9 법률의 부지와 법률의 착오 ······································································ 23
사례 10 법률의 착오의 판단기준 ··········································································· 25
사례 11 실행의 착수, 공범의 중지 ········································································· 27
사례 12 예비죄의 중지와 원인에 있어 자유로운 행위 ··········································· 31
사례 13 준강간의 불능미수 ··················································································· 33
사례 14 불능미수의 중지미수 ················································································ 35
사례 15 공범과 신분, 불가벌적 사후행위와 장물 ···················································· 37
사례 16 승계적 공동정범 ······················································································· 43
사례 17 합동범의 공동정범 ··················································································· 46
사례 18 교사의 착오(피교사자의 구체적 사실의 착오) ············································ 49
사례 19 공동정범, 교사의 착오(피교사자의 추상적 사실의 착오) ···························· 51
사례 20 연결효과에 의한 상상적 경합, 집행유예의 요건 ········································ 57
사례 21 특가법상 상습절도와 누범가중 ································································· 60
사례 22 명예훼손과 위법성조각사유, 전제사실에 관한 착오 ··································· 62
사례 23 폭행·상해죄와 모욕죄 ··········································································· 66
사례 24 위험운전치상과 특수공무집행방해 ···························································· 68
사례 25 특가법상 도주차량죄 사례 ········································································ 72
사례 26 주거침입, 성폭력처벌법상 주거침입강간 ···················································· 76
사례 27 업무상과실치상죄의 업무 ·········································································· 78
사례 28 명예훼손죄의 고의와 공연성 ···································································· 80
사례 29 모욕죄 ····································································································· 82
사례 30 강간치상죄에서의 상해 ············································································ 83
사례 31 주거침입죄 ······························································································· 85
사례 32 위계에 의한 업무방해죄 ··········································································· 86
사례 33 기습강제추행 ··························································································· 88
사례 34 미성년자위계간음죄 ················································································· 90
사례 35 계좌명의인의 횡령죄의 성부 ···································································· 92
사례 36 계약명의신탁과 횡령죄의 성부 ································································· 95
사례 37 신용카드범죄 ···························································································· 97
사례 38 준강도의 기수와 미수의 구별 ································································· 101
사례 39 준강도의 목적과 강도예비죄 ··································································· 103
사례 40 부동산 이중매매와 이중근저당 ······························································· 104
사례 41 불법원인급여와 횡령 ·············································································· 107
사례 42 권리행사방해죄 ······················································································ 109
사례 43 차량의 명의인이 아닌 자의 횡령죄 성부 ················································· 110
사례 44 배임수·증재죄 및 공갈죄 ······································································· 112
사례 45 손괴죄에서의 “손괴” ··········································································· 119
사례 46 강제집행면탈죄의 객체 ··········································································· 120
사례 47 사망자 명의의 문서와 사문서위조죄 ······················································· 122
사례 48 위조사문서행사 ······················································································ 124
사례 49 범죄단체조직·활동죄 ············································································· 126
사례 50 뇌물수수죄 및 제3자뇌물공여, 몰수·추징 ·············································· 129
사례 51 제3자뇌물취득, 수뢰후부정처사, 직무유기 ··············································· 132
사례 52 위력으로 공무집행을 방해한 사례 ··························································· 138
사례 53 증언거부권미고지와 위증죄, 범인도피교사죄 ··········································· 140
사례 54 범인의 증거은닉교사 ·············································································· 146
제2편 기록형 무죄판결 변론요지서
제1장 무죄변론의 유형 ···················································································· 150
1. 형사소송법 제325조 전단의 무죄판결 ······························································· 150
2. 형사소송법 제325조 후단의 무죄판결 ······························································· 150
제2장 형법총론 무죄변론 ················································································· 151
1. 100만달러지폐 위조사건 ···················································································· 151
2. 땅콩회항 사건 ··································································································· 151
3. 초과입금된 돈의 반환거부 사건 ········································································ 152
4. 봉침시술사건 ···································································································· 153
5. 할로테인마취사건 ····························································································· 154
6. 삿대질사건 ······································································································· 155
7. 비정상적으로 얇은 두개골사건 ·········································································· 155
8. 배희칠랑사건 ···································································································· 156
9. 혀절단상사건 ···································································································· 156
10. 전치 14일 흉부찰과상 사건(정당행위) ······························································ 157
11. 수지침시술사건 ······························································································· 157
12. 여우고개사건 ·································································································· 158
13. 쌍용차노조 접견불허사건 ················································································ 159
14. 미숫가루 사건 ································································································ 160
15. 필름원판 7매 제작사건 ···················································································· 161
16. 손도끼 구입비용사건 ······················································································· 161
17. 아파트출입문 시정장치 손괴사건 ····································································· 162
18. 초인종을 눌러본 사건 ····················································································· 162
19. 체포영장발부자 명단누설사건 ·········································································· 163
20. 이야기만 나눈 사건 ························································································ 163
21. 뱃놀이 사건 ···································································································· 164
22. 저수지사건 ····································································································· 164
23. 가계수표 허위신고 사건 ·················································································· 165
24. 저작물링크 사건 ····························································································· 165
25. 손도끼 구입사건 ····························································································· 166
26. 현주건조물에 방화하여 피해자를 소사케 한 사건 ············································ 166
27. 음주단속 경찰관을 들이받은 사건 ··································································· 167
28. 상습절도와 주거침입죄 사이의 관계 ································································ 167
29. 정기예금 인출사건 ·························································································· 168
제3장 형법각론 무죄변론 ················································································· 169
1. 트롯트가수 심수봉씨 사건 ················································································ 169
2. 시기에 늦은 제왕절개수술 사건 ········································································ 170
3. 내연녀 방치사건 ······························································································· 171
4. 피보호미성년자와 성관계를 한 사건 ·································································· 173
5. 채권추심회사 지사장 사건 ················································································ 173
6. 사직 강요사건 ·································································································· 174
7. 일지작성 강요사건 ···························································································· 175
8. 베트남인 엄마사건 ···························································································· 176
9. 48세 피해자 사건 ····························································································· 176
10. 화냥년의 간나 사건 ························································································· 177
11. 강용석씨 사건 ································································································· 178
12. 충청리뷰 제보사건 ·························································································· 179
13. 마트 입점비사건 ····························································································· 180
14. A4용지 7매 배포사건 ······················································································ 181
15. 경찰서민원실 행패사건 ···················································································· 181
16. 자동차매매단지 분양사건 ················································································ 182
17. 미등록 문화재수리업자 사건 ··········································································· 183
18. 철도국입찰사건 ······························································································· 184
19. 경제건달 대구동성로파 사건 ··········································································· 185
20. 초인종을 눌러본 사건 ····················································································· 186
21. 가재도구를 남겨둔 사건 ·················································································· 186
22. 문서출력 후 절도사건 ····················································································· 187
23. 점유의 상속을 부정한 사건 ············································································· 188
24. 계좌이체된 현금 인출사건 ·············································································· 189
25. 칼빈소총 절취사건 ·························································································· 189
26. 착오입금된 돈을 무단출금한 사건 ··································································· 190
27. 일반전화 무단통화사건 ···················································································· 191
28. 카드대금 대여사건 ·························································································· 192
29. 사망자를 상대로 한 소송사기 사건 ································································· 193
30. 입찰금액 해킹사건 ·························································································· 194
31. 신용카드 매출전표 사건 ·················································································· 195
32. 갈취한 신용카드사건 ······················································································ 196
33. 후불식 통신카드 사건 ····················································································· 196
34. 택시요금 미지급 후 폭행사건 ·········································································· 197
35. 보이스피싱의 공범인 계좌명의인이 돈을 인출해 간 사건 ································· 198
36. 광산토지 명의신탁사건 ··················································································· 199
37. 고문료 지급사건 ···························································································· 200
38. 대물변제 예약사건 ·························································································· 201
39. 입질된 전세보증금반환채권 사건 ···································································· 201
40. 퇴사 후 영업비밀누설 사건 ············································································ 202
41. 외부영업사원 사건 ························································································· 203
42. 동산양도담보 사건 ························································································· 204
43. 허위의 지급보증서 발행사건 ·········································································· 205
44. 가처분취하 청탁사건 ······················································································ 206
45. 컴퓨터사용사기 후 현금인출사건 ···································································· 207
46. 전당잡은 보석 사건 ························································································ 207
47. 재건축대상 아파트 철거사건 ··········································································· 208
48. 계란 30여개 투척 사건 ·················································································· 209
49. 나무와 도랑 사건 ··························································································· 209
50. 할부차량 은닉사건 ·························································································· 210
51. 경제건달 대구동성로파 사건 ············································································ 211
52. 소매치기 범죄단체사건 ··················································································· 212
53. 사북청년회 사건 ····························································································· 212
54. 폐가방화사건 ·································································································· 213
55. 합수반원 사칭사건 ·························································································· 214
56. 사설수도 단수사건 ·························································································· 214
57. 만원권 전자복사사건 ······················································································· 215
58. 신용력을 보이기 위해 통화를 위조한 사건 ······················································ 216
59. 주화변조사건 ·································································································· 216
60. 스위스화폐 위조품 사건 ·················································································· 216
61. 망부(亡父) 명의 어음발행사건 ········································································· 217
62. 배서인의 주소 허위기재 사건 ·········································································· 217
63. 수표자금을 입금받지 않은 채 수표를 발행한 사건 ··········································· 218
64. 은행에 신고된 것과 다른 인장을 날인한 사건 ················································· 219
65. 공범간에 유가증권을 교부한 사건 ··································································· 219
66. 유가증권의 사본을 교부한 사건 ······································································ 220
67. 졸업증명서 파일 위조사건 ··············································································· 221
68. 위조된 폐품반납증 변조사건 ··········································································· 222
69. 조리장·영양사 명의 서류 위조사건 ······························································· 222
70. 영상물등급위원회 회장 명의의 서류를 위조한 사건 ········································· 223
71. 파주시장 검인사건 ·························································································· 224
72. 북한산 월드메르디앙 사건 ·············································································· 225
73. 영업용택시 사건 ····························································································· 226
74. 공무원인 의사의 허위진단서작성 사건 ···························································· 226
75. 소홀한 검사로 진단서를 작성해준 사건 ··························································· 227
76. 조정조서 불실기재사건 ··················································································· 227
77. 사업자등록증 불실기재사건 ············································································· 228
78. 차용증 부정행사사건 ······················································································ 228
79. 이동전화 가입신청서사건 ················································································ 229
80. 인장명의인의 승낙 내지 위임을 받은 사건 ····················································· 229
81. 승낙이 없자 명의인에게 인장을 돌려준 사건 ·················································· 230
82. 민화투놀이사건 ······························································································ 230
83. 남성용 자위기구사건 ······················································································ 231
84. 내 똥꼬에 술을 부어라 사건 ··········································································· 231
85. 이석기 내란음모사건 ······················································································ 232
86. 주일학교 교사사건 ························································································· 233
87. 보도지침 사건 ································································································ 233
88. 형사들이 나갔으니 무조건 튀라 사건 ······························································ 234
89. 선관위 디도스 공격사건 ················································································· 235
90. 어업허가처리 기안문사건 ················································································ 235
91. 변양균씨 사건 ································································································ 235
92. 위법한 공무집행에 저항하여 상해를 가한 사건 ··············································· 236
93. 범인의 자기도피 사건 ····················································································· 237
94. 증언거부권미고지와 위증죄 ············································································ 238
95. 사립학교교원 무고사건 ··················································································· 239
96. 고소장에 적힌 대여금액수가 다소 부풀려져 있는 사건 ··································· 240
97. 안마의자 은닉교사사건 ··················································································· 241
제3편 선택형 표준판례 정지문
제1장 형법총론 표준판례 정지문 ···································································· 244
제2장 형법각론 표준판례 정지문 ···································································· 289
