2020 형법요론[총·각론]-이론 및 판례 기본서
저자 : 신호진
출판사 : 문형사
출판일 : 2020-01-20
페이지 : 1515
판형 : 2020판
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    2020년판 형법요론에 대해서

    형법요론이 형법의 기본교재로서 지향하는 점은, 첫째 이론기본서로서의 역할, 둘째 판례기본서로서의 역할, 그리고 셋째 사례기본서로서의 역할이다.
    이러한 기본적인 방침 아래 형법요론 2020년판에서는 다음과 같은 점에 주력하였다.

    1. 형법 기본이론의 충실한 정리

    형법을 공부한다면 가장 먼저 소화해야 하는 것이 “형법이론”이다. 이는 수학에 비유하자면 “기본공식”과 같다. 공식을 모르고서는 문제를 풀 수 없는 것처럼, 형법의 기본이론을 알지 못하고서는 절대로 “판례”를 이해할 수 없고, 나아가 “사례형 문제”도 해결할 수 없다. 본서는 2000년부터 중요 기출문제를 분석하여 문제 해결에 필요한 이론들을 꾸준히 증감 보완함으로써 형법 필수이론에 대한 기본서가 될 수 있도록 하였다.

    2. 판례의 체계적 정리

    본서에서는 출제가능한 판례들을 형법의 이론적 체계에 따라 일목요연하게 정리함으로써 판례교재를 별도로 볼 필요가 없도록 하였다. 특히 최근 4년간의 판례에 대해서는 최신 이라는 표지를 달아 최신판례의 높은 출제비중에 효율적으로 대비할 수 있도록 하였고, 같아 보이지만 다른 판례에 대해서는비교 로 정리하여 혼동하지 않도록 하였다.
    또한 동일한 쟁점에 대해서는 “긍정한 판례”와 “부정한 판례”를 최신판례 순으로 정리하였고, 특히 사례형 문제로 응용이 가능한 판례에 대해서는 “상세한 사실관계”도 소개하였다. 최신판례는 2019년 12월 판례공보까지 수록하였다.

    3. 사례형 문제의 체계적 정리

    2020년판에서는 사례형 문제(Case)의 출제경향을 파악하고 답안작성방법을 익힐 수있도록 2012년 이후의 변호사시험, 2001년 이후의 사법시험, 그리고 2011년 이후의 5급공채시험 문제 중에서 논점별로 가장 표준적인 문제 122문제를 선정하여 수록하였다. 해설은 “문제의 제기➝학설과 판례 및 결론➝문제의 해결”이라는 사례형 문제 해결의 기본적인 방식에 맞추어 답안의 골격을 제시하였는데, 각자 답안지에 정식으로 답안작성연습을 해 본다면 사례형 문제에 대해서 큰 자신감을 가질 수 있을 것이다.
    아무리 시험제도와 출제경향 등이 변경될지라도 실력이 뛰어난 사람이 승자가 된다는 것 자체는 절대로 변경되지 않는다! 아무쪼록 2020년판 형법요론이 독자 여러분의 꿈의 실현에 조금이나마 도움이 되기를 진심으로 기원하면서…

    2020년 1월 1일
    법학박사 신 호 진

    [ 목차 ]

    형법총론

    제1편 형법의 일반이론
    제1장 형법의 기본개념
    제1절 형법의 의의와 성격 ······················································································ 5
    [1] 형법의 의의/ 5 [2] 형법의 성격/ 5
    제2절 형법의 기능 ································································································· 7
    [1] 규제적 기능/ 7 [2] 보호적 기능/ 7 [3] 보장적 기능/ 8
    제3절 형법의 발전 ······························································································· 9
    [1] 형법의 역사/ 9 [2] 위험사회와 위험형법/ 9
    제2장 형법의 기본원리
    제1절 죄형법정주의 ······························································································ 11
    [1] 죄형법정주의의 의의/ 11 [2] 죄형법정주의의 연혁과 사상적 배경/ 12
    [3] 죄형법정주의의 현대적 의의/ 12 [4] 죄형법정주의의 내용/ 13
    제2절 형법이론 ···································································································· 41
    [1] 형법학파/ 41 [2] 형벌이론/ 44 [3] 범죄이론/ 46
    제3장 형법의 적용범위
    제1절 형법의 시간적 적용범위 ··············································································· 48
    [1] 서 설/ 48 [2] 형법의 태도/ 48 [3] 한시법/ 59
    제2절 형법의 장소적 적용범위 ·············································································· 64
    [1] 서 설/ 64 [2] 형법의 태도/ 65
    제3절 형법의 인적 적용범위 ················································································· 71
    [1] 의 의/ 71 [2] 예 외/ 71
    제2편 범 죄 론
    제1장 범죄론의 기초
    제1절 범죄의 의의와 종류 ····················································································· 75
    [1] 범죄의 의의와 본질/ 75 [2] 범죄의 성립요건·처벌조건·소추조건/ 76
    [3] 범죄의 종류/ 79
    제2절 행위론 ······································································································· 86
    [1] 서 설/ 86 [2] 행위론의 종류/ 87
    제3절 범죄체계론 ································································································ 90
    [1] 범죄체계론의 의의/ 90 [2] 범죄체계론의 현황/ 91
    제4절 행위의 주체와 객체 ····················································································· 92
    [1] 행위의 주체/ 92 [2] 행위의 객체와 보호의 객체/ 100
    제2장 구성요건론
    제1절 구성요건의 일반이론 ··············································································· 102
    [1] 구성요건의 의의/ 102 [2] 구성요건과 위법성의 관계/ 103
    [3] 구성요건의 요소/ 104 [4] 구성요건해당성배제사유/ 105
    제2절 결과반가치와 행위반가치 ··········································································· 106
    [1] 결과반가치와 행위반가치/ 106 [2] 결과반가치론과 행위반가치론/ 106
    [3] 결과반가치와 행위반가치의 내용/ 108
    제3절 부작위범 ································································································ 110
    [1] 부작위/ 110 [2] 부작위범/ 112
    [3] 부진정부작위범의 구성요건/ 116 [4] 관련문제/ 126
    제4절 인과관계와 객관적 귀속 ············································································ 129
    [1] 서 설/ 129 [2] 인과관계에 관한 학설/ 131
    [3] 객관적 귀속이론/ 140 [4] 형법 제17조의 해석/ 146
    제5절 구성요건적 고의 ······················································································ 147
    [1] 고의의 의의와 본질/ 147 [2] 고의의 체계적 지위/ 148
    [3] 고의의 내용/ 149 [4] 고의의 종류/ 151
    제6절 구성요건적 착오 ······················································································· 159
    [1] 서 설/ 159 [2] 구성요건적 착오의 유형/ 160
    [3] 구성요건적 착오에 관한 학설과 판례/ 162
    [4] 가감적 구성요건요소에 대한 착오/ 167
    [5] 인과관계의 착오와 개괄적 고의/ 169 [6] 관련문제/ 174
    제7절 과실범 ····································································································· 175
    [1] 서 설/ 175 [2] 과실범의 성립요건/ 179
    [3] 객관적 주의의무의 제한원리/ 187 [4] 관련문제/ 194
    제8절 결과적 가중범 ·························································································· 195
    [1] 서 설/ 195 [2] 결과적 가중범의 성립요건/ 198
    [3] 관련문제/ 204

    제3장 위법성론
    제1절 위법성의 일반이론 ···················································································· 210
    [1] 위법성의 의의/ 210 [2] 위법성의 본질/ 211
    [3] 위법성의 평가방법/ 212 [4] 위법성조각사유/ 213
    제2절 정당방위 ·································································································· 219
    [1] 서 설/ 219 [2] 정당방위의 성립요건/ 220
    [3] 정당방위의 효과/ 231 [4] 과잉방위와 오상방위/ 233
    제3절 긴급피난 ·································································································· 238
    [1] 서 설/ 238 [2] 긴급피난의 성립요건/ 240
    [3] 긴급피난의 효과/ 246 [4] 과잉피난과 오상피난/ 247
    [5] 의무의 충돌/ 247
    제4절 자구행위 ·································································································· 252
    [1] 서 설/ 252 [2] 자구행위의 성립요건/ 253
    [3] 자구행위의 효과/ 257 [4] 과잉자구행위와 오상자구행위/ 257
    제5절 피해자의 승낙 ·························································································· 259
    [1] 양 해/ 259 [2] 피해자의 승낙/ 261
    [3] 추정적 승낙/ 266
    제6절 정당행위 ·································································································· 270
    [1] 서 설/ 270 [2] 법령에 의한 행위/ 271
    [3] 업무로 인한 행위/ 279 [4] 사회상규에 위배되지 않는 행위/ 283
    제4장 책임론
    제1절 책임의 일반이론 ······················································································ 292
    [1] 서 설/ 292 [2] 책임의 근거/ 293
    [3] 책임의 본질/ 295 [4] 책임의 판단/ 298
    제2절 책임능력 ·································································································· 300
    [1] 서 설/ 300 [2] 책임무능력자/ 301
    [3] 한정책임능력자/ 306 [4] 원인에 있어서 자유로운 행위/ 308
    제3절 위법성의 인식과 금지착오 ········································································· 316
    [1] 위법성의 인식/ 316 [2] 금지착오/ 320
    [3] 위법성조각사유의 전제사실에 대한 착오/ 333
    제4절 기대가능성 ······························································································· 338
    [1] 기대가능성이론/ 338 [2] 강요된 행위/ 343
    [3] 초법규적 책임조각사유/ 347
    제5장 미수론
    제1절 미수범의 일반이론 ··················································································· 349
    [1] 범죄실현의 단계/ 349 [2] 미수범의 처벌근거/ 351
    제2절 장애미수 ·································································································· 353
    [1] 의 의/ 353 [2] 장애미수의 성립요건/ 353
    [3] 장애미수의 처벌/ 360 [4] 관련문제/ 361
    제3절 중지미수 ·································································································· 362
    [1] 서 설/ 362 [2] 중지미수의 성립요건/ 363
    [3] 중지미수의 처벌/ 371 [4] 관련문제/ 372
    제4절 불능미수 ································································································· 377
    [1] 서 설/ 377 [2] 불능미수의 성립요건/ 378
    [3] 불능미수의 처벌 및 관련문제/ 384
    제5절 예비죄 ···································································································· 387
    [1] 서 설/ 387 [2] 예비죄의 법적 성격/ 388
    [3] 예비죄의 성립요건/ 389 [4] 관련문제/ 392
    제6장 정범 및 공범론
    제1절 정범·공범의 일반이론 ················································································ 395
    [1] 서 설/ 395 [2] 정범과 공범의 구별/ 400
    [3] 공범의 종속성과 처벌근거/ 405
    제2절 간접정범 ·································································································· 410
    [1] 서 설/ 410 [2] 간접정범의 성립요건/ 411
    [3] 간접정범의 처벌/ 417 [4] 관련문제/ 417
    [5] 특수교사·방조/ 421
    제3절 공동정범 ································································································· 422
    [1] 서 설/ 422 [2] 공동정범의 성립요건/ 424
    [3] 공동정범의 처벌/ 443 [4] 관련문제/ 444
    제4절 교사범 ····································································································· 456
    [1] 서 설/ 456 [2] 교사범의 성립요건/ 457
    [3] 교사의 착오/ 463 [4] 교사범의 처벌/ 466
    [5] 관련문제/ 466
    제5절 종 범 ······································································································ 469
    [1] 서 설/ 469 [2] 종범의 성립요건/ 470
    [3] 종범의 착오/ 478 [4] 종범의 처벌/ 479
    [5] 관련문제/ 480
    제6절 공범과 신분 ····························································································· 482
    [1] 서 설/ 482 [2] 형법 제33조의 해석론/ 484
    [3] 소극적 신분과 공범/ 492 [4] 입법론/ 494
    제7장 죄수론
    제1절 죄수의 일반이론 ······················································································· 495
    [1] 죄수론의 의의/ 495 [2] 죄수결정의 기준/ 495
    [3] 수죄의 처벌/ 499
    제2절 일 죄 ······································································································ 500
    [1] 서 설/ 500 [2] 법조경합 / 500 [3] 포괄일죄/ 509
    제3절 수 죄 ······································································································ 521
    [1] 상상적 경합/ 521 [2] 실체적 경합/ 530
    제3편 형 벌 론
    제1절 형벌의 종류 ····························································································· 543
    [1] 서 설/ 543 [2] 사 형/ 543 [3] 자유형/ 544
    [4] 재산형/ 545 [5] 명예형/ 556 [6] 형의 경중/ 557
    제2절 형의 양정 ································································································ 559
    [1] 의 의/ 559 [2] 형의 양정의 단계/ 559
    [3] 형의 가중·감경·면제/ 559 [4] 양 형/ 566
    [5] 판결선고 전 구금 및 판결의 공시/ 568
    제3절 누 범 ······································································································ 571
    [1] 서 설/ 571 [2] 누범가중의 요건/ 572
    [3] 누범의 효과/ 575 [4] 판결선고 후의 누범발각/ 576
    제4절 집행유예·선고유예·가석방 ··········································································· 577
    [1] 집행유예/ 577 [2] 선고유예/ 584 [3] 가석방/ 588
    제5절 형의 시효·소멸·기간 ·················································································· 592
    [1] 형의 시효/ 592 [2] 형의 소멸·실효와 복권·사면/ 593
    [3] 형의 기간/ 596
    제6절 보안처분 ·································································································· 597
    [1] 보안처분의 일반이론/ 597 [2] 현행법상의 보안처분/ 600

    형법각론
    제1편 개인적 법익에 대한 죄
    제1장 생명과 신체에 대한 죄
    제1절 살인의 죄 ································································································ 609
    [1] 총 설/ 609 [2] 살인죄/ 609 [3] 존속살해죄/ 615
    [4] 영아살해죄/ 617 [5] 촉탁·승낙살인죄/ 619 [6] 자살교사·방조죄/ 621
    [7] 위계·위력에 의한 살인죄/ 624 [8] 살인예비·음모죄/ 625
    제2절 상해와 폭행의 죄 ······················································································ 626
    [1] 총 설/ 626 [2] 상해죄/ 627 [3] 존속상해죄/ 633
    [4] 중상해죄/ 633 [5] 존속중상해죄/ 635 [6] 특수상해죄/ 635
    [7] 상해치사죄·존속상해치사죄/ 635 [8] 상해의 동시범특례/ 636
    [9] 폭행죄/ 636 [10] 존속폭행죄/ 641 [11] 특수폭행죄/ 642
    [12] 폭행치사상죄/ 647 [13] 상습상해·폭행죄/ 648
    제3절 과실치사상의 죄 ······················································································· 650
    [1] 총 설/ 650 [2] 과실치상죄/ 651 [3] 과실치사죄/ 651
    [4] 업무상과실·중과실치사상죄/ 652
    제4절 낙태의 죄 ································································································ 663
    [1] 총 설/ 663 [2] 자기낙태죄/ 665 [3] 동의낙태죄/ 667
    [4] 업무상동의낙태죄/ 668 [5] 부동의낙태죄/ 669 [6] 낙태치사상죄/ 670
    제5절 유기와 학대의 죄 ···················································································· 671
    [1] 총 설/ 671 [2] 유기죄/ 672 [3] 존속유기죄/ 676
    [4] 중유기죄·존속중유기죄/ 676 [5] 영아유기죄/ 676
    [6] 학대죄/ 677 [7] 존속학대죄/ 679 [8] 아동혹사죄/ 679
    [9] 유기치사상죄/ 680
    제2장 자유에 대한 죄
    제1절 협박의 죄 ································································································ 681
    [1] 총 설/ 681 [2] 협박죄/ 682 [3] 존속협박죄/ 690
    [4] 특수협박죄/ 690 [5] 상습협박죄/ 691
    제2절 강요의 죄 ································································································ 692
    [1] 총 설/ 692 [2] 강요죄/ 692 [3] 특수강요죄/ 697 [4] 중강요죄/ 698
    [5] 인질강요죄/ 698 [6] 인질상해·치상죄/ 700 [7] 인질살해·치사죄/ 700
    제3절 체포와 감금의 죄 ······················································································ 701
    [1] 총 설/ 701 [2] 체포·감금죄/ 701 [3] 존속체포·감금죄/ 708
    [4] 중체포·감금죄, 존속중체포·감금죄/ 708 [5] 특수체포·감금죄/ 709
    [6] 상습체포·감금죄/ 710 [7] 체포·감금치사상죄/ 710
    제4절 약취·유인 및 인신매매의 죄 ······································································· 711
    [1] 총 설/ 711 [2] 미성년자 약취·유인죄/ 712
    [3] 추행·간음·결혼·영리목적 약취·유인죄/ 717
    [4] 노동력 착취·성매매와 성적 착취·장기적출목적 약취·유인죄/ 720
    [5] 국외이송목적 약취·유인죄/ 721 [6] 피약취·유인자 국외이송죄/ 721
    [7] 인신매매죄/ 722 [8] 추행·간음·결혼·영리목적 인신매매죄/ 723
    [9] 노동력 착취·성매매와 성적 착취·장기적출목적 인신매매죄/ 723
    [10] 국외이송목적 인신매매죄/ 724 [11] 피매매자 국외이송죄/ 724
    [12] 피약취·유인·매매·이송자 상해·치상죄/ 725
    [13] 피약취·유인·매매·이송자 살인·치사죄/ 725
    [14] 피약취·유인·매매·이송자 수수·은닉죄/ 725
    [15] 약취·유인·매매·이송목적 모집·운송·전달죄/ 726
    제5절 강간과 추행의 죄 ····················································································· 728
    [1] 총 설/ 728 [2] 강간죄/ 731 [3] 유사강간죄/ 736
    [4] 강제추행죄/ 738 [5] 준강간죄·준강제추행죄/ 741
    [6] 미성년자의제강간·강제추행죄/ 743
    [7] 강간상해·치상죄, 강간살인·치사죄/ 745
    [8] 미성년자·심신미약자 간음·추행죄/ 749
    [9] 피감호자간음죄/ 751 [10] 피구금자간음죄/ 753 [11] 상습범/ 754
    제3장 명예와 신용에 대한 죄
    제1절 명예에 관한 죄 ························································································· 755
    [1] 총 설/ 755 [2] 명예훼손죄/ 756 [3] 사자의 명예훼손죄/ 773
    [4] 출판물에 의한 명예훼손죄/ 774 [5] 모욕죄/ 778
    제2절 신용·업무와 경매에 관한 죄 ······································································· 783
    [1] 총 설/ 783 [2] 신용훼손죄/ 783 [3] 업무방해죄/ 786
    [4] 컴퓨터업무방해죄/ 803 [5] 경매·입찰방해죄/ 807
    제4장 사생활의 평온에 대한 죄
    제1절 비밀침해의 죄 ·························································································· 811
    [1] 총 설/ 811 [2] 비밀침해죄/ 812 [3] 업무상비밀누설죄/ 815
    제2절 주거침입의 죄 ·························································································· 819
    [1] 총 설/ 819 [2] 주거침입죄/ 820 [3] 퇴거불응죄/ 832
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