[ 머 리 말 ]
‘사례형 판례정리’에 대해서
“사례형 판례정리”는 변호사시험 사례형 문제를 대비하여 단기간에 효율적으로 중요 논점을 정리할 수 있도록 만들어진 교재이다.
1. 사례문제의 기초가 되는 중요판례 총정리
변호사시험 사례형 문제를 분석해 보면 특정의 판례를 기초로 해서 사안을 각색하거나 변형해서 만들어진 것들이 대부분이다. 그러므로 다양하게 변형된 사례문제에 잘 대처하기 위해서는 원래의 판례사안을 정확하게 파악하고 있어야만 한다. 그래서 본서에서는 2001년~2017년의 사법시험과 2012년~2019년의 변호사시험에서 출제되었던 사례문제를 분석하여 출제의 기초가 되었던 원래의 판례사안을 정확하게 소개하고 그와 관련된 논점에 대한 해설을 모범답안 형태로 구성하였다. 또한 최신 중요판례를 사례문제형태로 정리하여 수록함으로써 미기출 판례에도 적절하게 대비할 수 있도록 하였다.
2. 채점기준표에 의거한 모범답안식 해설
답안지에 무엇을 어느 정도로 써야 할 것인가는 결국 채점기준표에 의해서 결정된다.
그래서 본서에서는 사례형 문제에 대한 채점기준표를 참고하여 모범답안 형태의 해설을 함으로써 출제자가 요구하는 것이 어느 정도인가를 정확하게 알 수 있도록 하였다. 물론 모범답안의 분량은 실제 답안에 서술해야 할 것보다 2배 정도 많다. 그 이유는 논점을 제대로 이해하기 위해서는 어느 정도의 상세한 설명이 필요하고, 동일한 논점일지라도 문제의 형태 및 배점에 따라 서술의 정도가 달라지는 것에 융통성 있게 대처할 수 있도록 하기 위해서이다.
3. 관련판례 수록 및 기출사례 해설
출제의 기초가 되었던 판례의 사실관계를 기초로 모범답안식 해설을 한 후에는 그 판례의 판결요지 및 관련 중요판례를 수록하였고, 다시 해당 판례를 기초로 한 기출 사례문제를 소개하고 해설하였다. 전자에 의해서는 판례의 입장을 정확하게 이해하고 또한 선택형 문제에 대한 대비도 어느 정도 할 수 있을 것이고, 후자에 의해서는 변형된 문제에 대한 응용능력을 향상시킬 수 있을 것이다. 특히 후자를 활용하여 기출문제의 형태 및 배점에 따른 답안구성 방법과 서술분량을 조절하는 훈련을 해 보기 바란다.
본서의 효율적 활용으로 법조인의 꿈을 조속히 실현하기를 바라면서…
[목 차]
1. 판례의 변경과 소급효금지의 원칙 ············································································ 3
2. 유추적용금지의 원칙 ······························································································ 7
3. 법인의 범죄능력 ···································································································· 9
4. 작위와 부작위의 구별 ··························································································· 12
5. 보증인지위의 발생근거 및 미필적 고의 ··································································· 16
6. 인과관계와 객관적 귀속 ························································································ 20
7. 개괄적 고의와 불능미수 ························································································ 25
8. 신뢰의 원칙과 그 적용한계 ··················································································· 29
9. 부진정결과적 가중범과 직접성의 원칙 ···································································· 32
10. 개괄적 과실과 직접성의 원칙 ··············································································· 37
11. 결과적 가중범의 공동정범 ··················································································· 40
12. 결과적 가중범의 미수 ························································································· 42
13. 주관적 정당화요소를 결여한 경우 ········································································· 45
14. 지속적 위험에 대한 정당방위 ··············································································· 46
15. 환자의 자기결정권과 의사의 의무 ········································································· 50
16. 원인에 있어서 자유로운 행위 ··············································································· 54
17. 금지착오와 정당한 이유 ······················································································ 58
18. 위법성조각사유의 전제사실에 대한 착오 ······························································· 61
19. 위법성조각사유의 전제사실에 대한 착오와 공범 ····················································· 64
20. 강요된 행위 ······································································································· 71
21. 실행의 착수시기 ································································································· 74
22. 중지미수와 자의성의 판단기준 ············································································· 76
23. 공범과 중지미수 ································································································· 80
24. 불능미수에 대한 중지미수 ··················································································· 82
25. 불능미수와 위험성의 판단기준 ············································································· 84
26. 예비의 중지 및 예비죄의 종범 ············································································· 87
27. 예비죄의 성립요건 ······························································································ 90
28. 필요적 공범과 총칙상의 공범규정의 적용여부 ························································ 93
29. 간접정범의 성립요건 ··························································································· 95
30. 정범 배후의 정범이론 ························································································· 97
31. 간접정범과 착오 ································································································· 99
32. 승계적 공동정범 ······························································································· 101
33. 공동정범과 공동의 실행행위 ·············································································· 105
34. 공모관계의 이탈과 공모공동정범 ········································································ 107
35. 상해치사죄의 동시범 ························································································· 111
36. 합동범의 공동정범 ···························································································· 113
37. 교사범과 공범관계로부터의 이탈 ········································································ 118
38. 미필적 고의와 교사의 착오 ················································································ 121
39. 부작위에 의한 종범 ··························································································· 125
40. 목적과 신분 ····································································································· 128
41. 진정신분범의 간접정범과 공범 ··········································································· 131
42. 부진정신분범과 공범 ························································································· 134
43. 불구성적 신분과 공범 ························································································ 137
44. 교통사고 관련범죄의 죄수관계 ··········································································· 139
45. 불가벌적 사후행위 ···························································································· 142
46. ‘범죄행위에 제공한 물건’의 의미 ········································································ 146
47. 집행유예와 선고유예의 결격사유 ········································································ 149
48. 사람의 시기 ····································································································· 152
49. 상해의 개념 ····································································································· 155
50. ‘폭행’ 및 ‘위험한 물건 휴대’의 의미··· ································································ 157
51. 유기죄의 보호의무 및 불법영득의사 ···································································· 160
52. 협박죄의 객체 및 기수시기 ················································································ 165
53. 강요죄의 고의 ·································································································· 169
54. 영리목적약취·유인죄와 인질강도죄 ······································································ 171
55. 주거침입죄와 강간죄의 관계 ·············································································· 174
56. 제310조와 진실성에 대한 착오 ··········································································· 176
57. 출판물에 의한 명예훼손죄의 간접정범 ································································· 180
58. 업무방해죄의 업무와 공무 ·················································································· 184
59. 업무방해죄와 명예훼손죄의 관계 ········································································ 187
60. 컴퓨터 업무방해죄 ···························································································· 189
61. 주거침입죄의 객체와 피해자의 동의 ···································································· 191
62. 주거침입죄의 기수시기 ······················································································ 193
63. 형법상 재물의 개념 ··························································································· 196
64. 금제품의 재물성 ······························································································· 200
65. 형법상 점유의 요건 ··························································································· 203
66. 유류물·분실물에 대한 점유 ················································································· 205
67. 사자의 점유 및 사자 명의의 문서위조 ································································· 208
68. 사자의 점유와 불법영득의 의사 ·········································································· 212
69. 불법영득의사의 대상 ························································································· 215
70. 불법영득의사에서 불법의 의미 ··········································································· 220
71. 절도와 사용절도의 구별 ····················································································· 223
72. 야간주거침입절도죄에서 ‘야간’의 적용범위 ·························································· 225
73. 합동절도죄 성립의 시간적 한계 ·········································································· 227
74. 절도와 강도의 구별 ··························································································· 229
75. 야간주거침입 특수강도죄의 실행의 착수시기 ························································ 232
76. 준강도죄의 기수와 미수의 판단기준 ···································································· 235
77. 준강도죄의 공동정범 ························································································· 237
78. 특수강도의 준강도의 판단기준 ··········································································· 241
79. 강도강간죄의 주체 ···························································································· 243
80. 잔금사기와 고지의무 ························································································· 246
81. 사기죄에서 기망행위의 정도 ·············································································· 248
82. 사기죄와 처분의사 ···························································································· 251
83. 사자에 대한 소송사기 ························································································ 257
84. 사기죄와 횡령죄의 관계 ····················································································· 260
85. 컴퓨터사용사기죄의 객체 ··················································································· 263
86. 신용카드 관련범죄 ···························································································· 266
87. 신용카드의 부정발급과 부정사용 ········································································ 269
88. 강취·갈취한 현금카드에 의한 예금인출 ································································ 272
89. 권리행사와 공갈죄 ···························································································· 276
90. 공갈죄와 수뢰죄의 관계 ····················································································· 279
91. 횡령죄의 주체와 객체 ························································································ 282
92. 불법원인급여와 횡령죄 ······················································································ 287
93. 3자간 명의신탁과 횡령죄 ··················································································· 290
94. 리베이트 수수행위의 형사책임 ··········································································· 294
95. 횡령죄의 기수시기 ···························································································· 296
96. 예산전용과 불법영득의사 ··················································································· 299
97. 횡령행위의 상대방의 형사책임 ··········································································· 302
98. 대표권을 남용한 약속어음 발행과 배임죄의 기수시기 ··········································· 305
99. 이중매매의 형사책임 ························································································· 310
100. 배임수재죄에서 신분의 존재시기 ······································································· 315
101. 장물의 동일성 ································································································· 318
102. 장물취득죄에서 ‘취득’의 의미 ··········································································· 322
103. 이미지 파일의 문서성 ······················································································ 325
104. 문서와 명의인의 실재성 ··················································································· 329
105. 문서의 복사행위와 위조 ··················································································· 331
106. 허위공문서작성죄의 간접정범 ··········································································· 334
107. 허위진단서작성죄와 허위공문서작성죄의 관계 ···················································· 337
108. 공문서부정행사죄에서 ‘부정행사’의 의미 ···························································· 342
109. 공문서부정행사죄의 객체 ················································································· 346
110. 편면적 도박 ···································································································· 349
111. 경기의 도박성 ································································································· 351
112. 직무유기죄와 허위공문서작성죄의 관계 ······························································ 353
113. 뇌물과 직무관련성 ·························································································· 356
114. 뇌물의 몰수와 추징 ························································································· 359
115. 공무집행방해죄와 직무집행의 적법성 ································································· 362
116. 위계에 의한 공무집행방해죄와 직무유기죄의 관계 ·············································· 365
117. 범인도피죄의 공범 ·························································································· 368
118. 범인도피죄에서 ‘죄를 범한 자’의 의미 ······························································· 372
119. 증언거부권의 불고지와 위증죄 ·········································································· 375
120. 위증죄에서 ‘허위’의 판단기준 ··········································································· 378
121. 증거인멸죄의 객체 ·························································································· 380
122. 자기사건에 관한 증거인멸의 교사 ····································································· 383
123. 공소시효의 완성과 무고죄 ················································································ 386
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