[머 리 말]
‘사례형 판례정리’에 대해서
1. 사례문제의 기초가 되는 중요판례 총정리
변호사시험의 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~2020년의 변호사시험 및 2011년~2019년의 5급공채시험에 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 ······················································································· 14
5. 보증인지위의 발생근거 및 미필적 고의 ······························································· 18
6. 인과관계와 객관적 귀속 ···················································································· 22
7. 개괄적 고의와 불능미수 ···················································································· 28
8. 신뢰의 원칙과 그 적용한계 ··············································································· 34
9. 부진정결과적 가중범과 직접성의 원칙 ································································ 38
10. 개괄적 과실과 직접성의 원칙 ·········································································· 44
11. 결과적 가중범의 공동정범 ··············································································· 47
12. 결과적 가중범의 미수 ····················································································· 49
13. 주관적 정당화요소를 결여한 경우 ···································································· 52
14. 지속적 위험에 대한 정당방위 ·········································································· 53
15. 환자의 자기결정권과 의사의 의무 ···································································· 57
16. 교사의 체벌과 정당행위 ·················································································· 61
17. 원인에 있어서 자유로운 행위 ·········································································· 64
18. 금지착오와 정당한 이유 ·················································································· 68
19. 위법성조각사유의 전제사실에 대한 착오 ··························································· 72
20. 위법성조각사유의 전제사실에 대한 착오와 공범 ················································· 75
21. 강요된 행위 ·································································································· 82
22. 실행의 착수시기 ···························································································· 85
23. 중지미수와 자의성의 판단기준 ········································································· 87
24. 공범과 중지미수 ···························································································· 91
25. 불능미수에 대한 중지미수 ··············································································· 95
26. 불능미수와 위험성의 판단기준 ········································································· 98
27. 예비의 중지 및 예비죄의 종범 ······································································· 101
28. 예비죄의 성립요건 ························································································ 104
29. 필요적 공범과 총칙상의 공범규정의 적용여부 ·················································· 107
30. 간접정범의 성립요건 ····················································································· 109
31. 정범 배후의 정범이론 ··················································································· 112
32. 간접정범과 착오 ··························································································· 114
33. 승계적 공동정범 ··························································································· 116
34. 공동정범과 공동의 실행행위 ·········································································· 120
35. 공모관계의 이탈과 공모공동정범 ···································································· 122
36. 상해치사죄의 동시범 ····················································································· 127
37. 합동범의 공동정범 ························································································ 129
38. 교사범과 공범관계로부터의 이탈 ···································································· 134
39. 미필적 고의와 교사의 착오 ············································································ 137
40. 부작위에 의한 종범 ······················································································ 141
41. 목적과 신분 ································································································· 144
42. 진정신분범의 간접정범과 공범 ······································································· 147
43. 부진정신분범과 공범 ····················································································· 150
44. 불구성적 신분과 공범 ··················································································· 154
45. 교통사고 관련범죄의 죄수관계 ······································································· 156
46. 불가벌적 사후행위 ························································································ 159
47. ‘범죄행위에 제공한 물건’의 의미 ···································································· 163
48. 집행유예와 선고유예의 결격사유 ···································································· 167
49. 사람의 시기 ································································································· 170
50. 상해의 개념 ································································································· 173
51. ‘폭행’ 및 ‘위험한 물건 휴대’의 의미 ······························································· 175
52. 유기죄의 보호의무 및 불법영득의사 ································································ 178
53. 협박죄의 객체 및 기수시기 ············································································ 183
54. 강요죄의 고의 ······························································································ 188
55. 영리목적약취·유인죄와 인질강도죄 ·································································· 190
56. 주거침입죄와 강간죄의 관계 ·········································································· 193
57. 제310조와 진실성에 대한 착오 ······································································ 195
58. 출판물에 의한 명예훼손죄의 간접정범 ···························································· 199
59. 업무방해죄의 업무와 공무 ············································································· 203
60. 업무방해죄와 명예훼손죄의 관계 ···································································· 207
61. 컴퓨터 업무방해죄 ························································································ 209
62. 주거침입죄의 객체와 피해자의 동의 ································································ 211
63. 주거침입죄의 기수시기 ·················································································· 213
64. 형법상 재물의 개념 ······················································································ 216
65. 금제품의 재물성 ··························································································· 220
66. 형법상 점유의 요건 ······················································································ 223
67. 유류물·분실물에 대한 점유 ············································································ 225
68. 사자의 점유 및 사자 명의의 문서위조 ···························································· 228
69. 사자의 점유와 불법영득의 의사 ······································································ 232
70. 불법영득의사의 대상 ····················································································· 235
71. 불법영득의사에서 불법의 의미 ······································································· 240
72. 절도와 사용절도의 구별 ················································································ 243
73. 야간주거침입절도죄에서 ‘야간’의 적용범위 ······················································ 247
74. 합동절도죄 성립의 시간적 한계 ······································································ 249
75. 절도와 강도의 구별 ······················································································ 251
76. 야간주거침입 특수강도죄의 실행의 착수시기 ··················································· 255
77. 준강도죄의 기수와 미수의 판단기준 ································································ 259
78. 준강도죄의 공동정범 ····················································································· 261
79. 특수강도의 준강도의 판단기준 ······································································· 265
80. 강도강간죄의 주체 ························································································ 267
81. 잔금사기와 고지의무 ····················································································· 271
82. 사기죄에서 기망행위의 정도 ·········································································· 273
83. 사기죄와 처분의사 ························································································ 276
84. 사자에 대한 소송사기 ··················································································· 282
85. 사기죄와 횡령죄의 관계 ················································································ 285
86. 컴퓨터사용사기죄의 객체 ··············································································· 288
87. 신용카드 관련범죄 ························································································ 292
88. 신용카드의 부정발급과 부정사용 ···································································· 295
89. 강취·갈취한 현금카드에 의한 예금인출 ··························································· 299
90. 권리행사와 공갈죄 ························································································ 303
91. 공갈죄와 수뢰죄의 관계 ················································································ 306
92. 횡령죄의 주체와 객체 ··················································································· 309
93. 불법원인급여와 횡령죄 ·················································································· 314
94. 3자간 명의신탁과 횡령죄 ·············································································· 318
95. 리베이트 수수행위의 형사책임 ······································································· 322
96. 횡령죄의 기수시기 ························································································ 324
97. 예산전용과 불법영득의사 ··············································································· 327
98. 횡령행위의 상대방의 형사책임 ······································································· 330
99. 동산 양도담보와 배임죄의 주최 ······································································ 333
100. 대표권을 남용한 약속어음 발행과 배임죄의 기수시기 ······································ 335
101. 이중매매의 형사책임 ··················································································· 340
102. 배임수재죄에서 신분의 존재시기 ·································································· 346
103. 배임수재죄와 부정한 청탁 ··········································································· 349
104. 장물의 동일성 ···························································································· 351
105. 장물취득죄에서 ‘취득’의 의미 ······································································ 356
106. 방화죄의 기수시기 ······················································································ 359
107. 이미지 파일의 문서성 ················································································· 362
108. 문서와 명의인의 실재성 ·············································································· 366
109. 문서의 복사행위와 위조 ·············································································· 368
110. 허위공문서작성죄의 간접정범 ······································································· 371
111. 허위진단서작성죄와 허위공문서작성죄의 관계 ················································ 375
112. 공문서부정행사죄에서 ‘부정행사’의 의미 ······················································· 380
113. 공문서부정행사죄의 객체 ············································································· 384
114. 편면적 도박 ······························································································· 387
115. 경기의 도박성 ···························································································· 390
116. 직무유기죄와 허위공문서작성죄의 관계 ························································· 392
117. 뇌물과 직무관련성 ······················································································ 396
118. 뇌물의 몰수와 추징 ···················································································· 400
119. 공무집행방해죄와 직무집행의 적법성 ···························································· 403
120. 위계에 의한 공무집행방해죄와 직무유기죄의 관계 ·········································· 406
121. 범인도피죄의 공범 ······················································································ 410
122. 범인도피죄에서 ‘죄를 범한 자’의 의미 ·························································· 415
123. 증언거부권의 불고지와 위증죄 ····································································· 419
124. 위증죄에서 ‘허위’의 판단기준 ······································································ 422
125. 증거인멸죄의 객체 ······················································································ 424
126. 자기사건에 관한 증거인멸의 교사 ································································· 427
127. 공소시효의 완성과 무고죄 ··········································································· 431
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