제1부❙형법 총론

법학의 기초개념 / 1
제1편 형법서론
제1장 ❙형법의 기본개념 / 10
제1절 법률과 형법의 개념 ······························10
제2절 형법의 기능 ···········································11
제3절 형법의 발전 ··········································12
 심화이론 01 형법기능과 학파대립 ·············13
제2장 ❙죄형법정주의 / 15
제1절 죄형법정주의의 개관 ····························15
제2절 죄형법정주의의 내용 ····························16
Ⅰ 법률주의(관습형법금지원칙, 포괄위임금지원칙)
·································································16
Ⅱ 명확성원칙 ················································19
Ⅲ 소급금지원칙(형벌불소급원칙) ···················25
Ⅳ 유추해석금지원칙 ·····································30
Ⅴ 적정성원칙 ···············································48
제3장 ❙형법의 적용범위 / 50
제1절 형법의 시간적 적용범위 ·······················50
Ⅰ 제1조 1항의 해석 ·······································50
Ⅱ 제1조 2항의 해석 ······································52
Ⅲ 제1조 3항의 해석 ······································55
Ⅳ 제1조 2항·3항의 예외 ·······························56
Ⅴ 한시법과 백지형법 ····································63
 심화이론 02 한시법과 추급효 ··················64
제2절 형법의 장소적 적용범위 ······················65
Ⅰ 속지주의 ···················································65
Ⅱ 기국주의 ···················································66
Ⅲ 속인주의 ···················································66
Ⅳ 제5조의 보호주의 ·····································67
Ⅴ 제6조의 보호주의 ·····································68
Ⅵ 세계주의 ···················································69
Ⅶ 국가간 법률충돌의 해결 ···························69
제3절 형법의 인적 적용범위 ···························71
제4절 특별법과의 관계 ···································72

제2편 범죄론
제1장 ❙범죄론의 기초 / 76
제1절 범죄의 요건 ··········································76
 심화이론 03 행위론 ··································79
제2절 범죄의 의의와 종류 ······························81
제3절 결과반가치와 행위반가치 ····················85
제2장 ❙구성요건론 / 86
제1절 구성요건의 일반이론 ····························86
 심화이론 04 구성요건 일반론 ··················87
제2절 행위의 주체와 객체 ······························89
Ⅰ 행위의 주체 ··············································89
Ⅱ 행위의 객체 ··············································92
 심화이론 05 법인의 범죄능력과 양벌규정 ·· 93
제3절 부작위범 ···············································97
Ⅰ 행위의 종류 ··············································97
Ⅱ 부작위범의 종류 ·······································97
Ⅲ 부작위범의 요건 ·······································99
Ⅳ 법적 작위의무 ·········································100
Ⅴ 작위와 부작위의 적용 ······························102
Ⅵ 관련문제 ··················································103
 심화이론 06 부작위범 ·····························104
제4절 인과관계와 객관적 귀속 ····················108
Ⅰ 인과관계의 의의 ······································108
Ⅱ 인과관계에 관한 학설 ·····························108
Ⅲ 인과관계의 유형 ······································108
Ⅳ 인과관계의 입증 ·······································111
 심화이론 07 인과관계 ······························116
제5절 구성요건적 고의 ·································122
Ⅰ 고의의 개관 ·············································122
Ⅱ 고의의 인식대상 ······································122
Ⅲ 고의의 종류 ·············································123
 심화이론 08 구성요건적 고의 ·················128
제6절 구성요건적 착오 ·································131
Ⅰ 구성요건적 착오의 의의 ···························131
Ⅱ 구성요건적 착오의 종류 ···························131
Ⅲ 협의의 착오의 종류 ·································132
Ⅳ 판례와 학설의 해결 ·································133
Ⅴ 사례의 해결 ·············································134
Ⅵ 병발사례 ··················································135
Ⅶ 개괄적 고의 과실 ·····································136
 심화이론 09 구성요건적 착오 ·················137
제7절 과실범 ·················································140
Ⅰ 과실범의 개관 ·········································140
Ⅱ 과실범의 구성요건 ··································144
Ⅲ 관련문제 ··················································145
Ⅳ 과실 관련판례 ·········································145
Ⅴ 신뢰의 원칙 ·············································153
Ⅵ 신뢰원칙 관련판례 ··································153
 심화이론 10 과실범 ·································162
제8절 결과적 가중범 ····································164
Ⅰ 결과적 가중범의 의미 ······························164
Ⅱ 결과적 가중범의 종류 ······························164
Ⅲ 구성요건 ··················································165
Ⅳ 행위책임주의 ···········································166
Ⅴ 관련문제 ··················································169
 심화이론 11 결과적 가중범 ······················173
제3장 ❙위법성론 / 176
제1절 위법성의 일반이론 ······························176
 심화이론 12 위법성 일반이론 ··················177
제2절 정당방위 ·············································180
Ⅰ 정당방위의 개념 ······································180
Ⅱ 성립요건 ··················································180
Ⅲ 정당방위의 효과 ······································186
Ⅳ 기타의 방위 ·············································186
 심화이론 13 정당방위 ······························188
제3절 긴급피난 ·············································190
Ⅰ 긴급피난의 개념 ······································190
Ⅱ 성립요건 ··················································190
Ⅲ 긴급피난의 효과 ·······································191
Ⅳ 기타의 피난 ·············································192
Ⅴ 의무의 충돌 ·············································193
 심화이론 14 긴급피난 ······························194
제4절 자구행위 ·············································196
Ⅰ 자구행위의 개념 ······································196
Ⅱ 자구행위의 요건 ······································196
Ⅲ 자구행위의 효과 ······································197
Ⅳ 과잉자구행위와 야간과잉자구행위 ··········197
제5절 피해자의 승낙 ····································199
Ⅰ 동의의 효력 ·············································199
Ⅱ 양해 ························································200
Ⅲ 피해자의 승낙 ·········································201
Ⅳ 추정적 승낙 ············································203
 심화이론 15 추정적 승낙 ························204
제6절 정당행위 ············································205
Ⅰ 법령에 의한 행위 ····································205
Ⅱ 업무로 인한 행위 ·····································212
Ⅲ 기타 사회상규에 합치하는 행위 ··············214
제4장 ❙책임론 / 224
제1절 책임의 일반이론 ·································224
Ⅰ 책임주의 ·················································224
Ⅱ 책임의 근거 ············································224
Ⅲ 책임의 본질 ············································225
Ⅳ 범죄체계론 ··············································225
 심화이론 16 범죄체계론 ··························226
제2절 책임능력 ············································230
Ⅰ 책임능력의 개념 ·····································230
Ⅱ 책임무능력자 ··········································230
Ⅲ 한정책임능력자 ·······································235
Ⅳ 아청법의 제한 ·········································236
Ⅴ 원인에 있어서 자유로운 행위 ··················237
 심화이론 17 원인에 있어서 자유로운 행위
·······························································239
제3절 위법성의 인식과 금지착오 ·················241
Ⅰ 금지착오의 개념 ······································241
Ⅱ 금지착오의 유형 ······································241
Ⅲ 금지착오의 효과 ·····································242
Ⅳ 위법성조각사유의 전제사실의 착오(위전착)
·······························································251
 심화이론 18 각종 착오 ····························253
제4절 기대가능성 ·········································257
Ⅰ 기대가능성의 판단기준 ···························257
Ⅱ 기대불가능성의 유형 ······························259
Ⅲ 강요된 행위 ············································259
제5장 ❙미수론 / 263
제1절 미수범의 일반이론 ·····························263
Ⅰ 범죄실현의 단계 ·····································263
Ⅱ 선전·선동의 개념 ····································263
제2절 음모·예비죄 ·······································264
Ⅰ 음모·예비의 개념 ····································264
Ⅱ 관련문제 ·················································265
Ⅲ 음모예비 처벌규정 ··································266
Ⅳ 음모예비의 법적성격 ·······························271
제3절 장애미수 ·············································272
Ⅰ 개념 ························································272
Ⅱ 요건과 효과 ·············································272
Ⅲ 실행의 착수 ·············································273
Ⅳ 관련문제 ·················································280
 심화이론 19 장애미수 ······························281
제4절 중지미수 ·············································283
Ⅰ 개념 ························································283
Ⅱ 요건과 효과 ············································283
Ⅲ 자의성 ·····················································283
Ⅳ 범행중지 또는 결과방지 ··························285
Ⅴ 공범과 중지미수 ·····································286
Ⅵ 관련문제 ·················································287
 심화이론 20 중지미수 ····························288
제5절 불능미수 ·············································292
Ⅰ 개념 ························································292
Ⅱ 요건과 효과 ············································292
Ⅲ 불능미수의 판단 ·····································294
 심화이론 21 불능미수 ·····························297
제6장 ❙공범론 / 299
제1절 공범의 일반이론 ·································299
Ⅰ 서설 ························································299
Ⅱ 필요적 공범 ············································299
Ⅲ 정범과 공범의 관계 ································303
Ⅳ 기도된 교사·방조 ···································304
 심화이론 22 공범 일반이론 ····················305
제2절 간접정범 ············································308
Ⅰ 정범과 공범의 구별 ································308
Ⅱ 간접정범의 이용행위 ·······························310
Ⅲ 간접정범의 처벌 ······································312
Ⅳ 간접정범과 착오 ······································312
Ⅴ 특수교사·방조 ·········································312
Ⅵ 각칙에 문제되는 간접정범 ·······················313
 심화이론 23 간접정범 ·····························314
제3절 공동정범 ·············································316
Ⅰ 공동정범의 개념 ······································316
Ⅱ 주관적 요건 ·············································317
Ⅲ 객관적 요건 ············································324
Ⅳ 공동정범의 책임 ·····································330
제4절 동시범과 합동범 ·································331
Ⅰ 동시범 ·····················································331
Ⅱ 합동범 ····················································334
 심화이론 24 공동정범 동시범 합동범 ·····336
제5절 교사범 ················································340
Ⅰ 개념 ························································340
Ⅱ 성립요건 ·················································340
Ⅲ 교사의 착오 ············································344
Ⅳ 관련문제 ·················································345
 심화이론 25 교사범 ································346
제6절 방조범 ················································348
Ⅰ 개념 ························································348
Ⅱ 성립요건 ·················································349
Ⅲ 방조의 착오 ············································353
Ⅳ 관련문제 ·················································353
제7절 공범과 신분 ········································357
Ⅰ 형법상 신분 ············································357
Ⅱ 적극적 신분(제33조의 해석) ·····················358
Ⅲ 소극적 신분 ·············································361
 심화이론 26 공범과 신분 ························362

제3편 죄수형벌론
제1장 ❙죄수론 / 368
제1절 죄수의 일반이론 ·································368
Ⅰ 죄수론의 의의 ·········································368
Ⅱ 죄수결정의 기준 ·····································368
제2절 법조경합 ·············································369
Ⅰ 특별관계 ·················································369
Ⅱ 보충관계 ·················································370
Ⅲ 흡수관계 ··················································371
Ⅳ 택일관계 ·················································373
제3절 포괄일죄 ·············································374
Ⅰ 상습범의 개념 ·········································374
Ⅱ 상습범의 기판력 ·····································374
Ⅲ 상습범과 영업범 관련 판례 ·····················375
제4절 상상적 경합 ········································381
Ⅰ 개념 ·························································381
Ⅱ 요건 ·························································381
Ⅲ 효과 ·························································381
제5절 실체적 경합 ········································387
Ⅰ 경합범의 개념 ·········································387
Ⅱ 실체법적 요건 ·········································387
Ⅲ 소송법적 요건 ·········································387
Ⅳ 경합범의 효과 ·········································389
Ⅴ 경합범 판례 정리 ····································390
 심화이론 27 실체적 경합범 ····················395
제2장 ❙형벌론 / 399
제1절 형벌의 종류 ········································399
Ⅰ 형벌의 종류 ············································399
Ⅱ 사형 ························································399
Ⅲ 자유형 –징역 금고 구류 ························400
Ⅳ 명예형 –자격상실 자격정지 ···················400
Ⅴ 재산형 –벌금 과료 몰수 ·························401
제2절 형의 양정 ············································411
Ⅰ 양형단계 ··················································411
Ⅱ 양형기준 ··················································411
Ⅲ 형의 가중 감경 면제 ································412
Ⅳ 미결구금 ··················································415
Ⅴ 판결의 공시 ·············································416
Ⅵ 자수와 자복 ·············································416
Ⅶ 형사절차의 개관 ······································419
제3절 누범 ····················································420
Ⅰ 서설 ························································420
Ⅱ 누범가중의 요건 ······································421
Ⅲ 누범의 효과 ············································423
Ⅳ 특가법상 누범 ·········································423
제4절 선고유예·집행유예·가석방 ················425
Ⅰ 선고유예 ·················································425
Ⅱ 집행유예 ·················································428
Ⅲ 가석방 ·····················································432
Ⅳ 종합정리 ·················································433
 심화이론 28 누범과 집행유예 ·················434
제5절 형의 시효·소멸·기간 ·························436
Ⅰ 형의 시효 ················································436
Ⅱ 형의 소멸 ················································437
Ⅲ 사면·감형·복권 ······································438
Ⅳ 형의 기간 ················································439
제6절 보안처분 ············································440
Ⅰ 서설 ························································440
Ⅱ 형벌과 보안처분의 관계 ·························440
Ⅲ 현행법상 보안처분 ··································440

제2부❙형법 각론

제4편 개인적 법익
제1장 ❙생명과 신체에 대한 죄 / 10
제1절 살인의 죄 ··············································10
Ⅰ 서설 ··························································10
Ⅱ 살인죄 ·······················································10
Ⅲ 존속살해죄 ················································14
Ⅳ 영아살해죄 ················································15
Ⅴ 기타범죄 ····················································16
제2절 상해와 폭행의 죄 ··································18
Ⅰ 서설 ···························································18
Ⅱ 상해죄와 폭행죄의 비교 ····························18
Ⅲ 상해죄 ·······················································19
Ⅳ 폭행죄 ·······················································24
제3절 과실치사상의 죄 ···································31
Ⅰ 서설 ···························································31
Ⅱ 과실치사상죄 ·············································31
제4절 낙태의 죄 ·············································34
Ⅰ 서설 ··························································34
Ⅱ 낙태죄 ······················································35
Ⅲ 헌법불합치 결정 ·······································36
제5절 유기와 학대의 죄 ·································37
Ⅰ 서설 ··························································37
Ⅱ 유기죄 ·······················································37
Ⅲ 기타 범죄 ··················································39
제2장 ❙자유에 대한 죄 / 42
제1절 협박의 죄 ··············································42
Ⅰ 서설 ··························································42
Ⅱ 협박죄 ·······················································42
Ⅲ 기타 범죄 ··················································48
제2절 강요의 죄 ·············································49
Ⅰ 서설 ··························································49
Ⅱ 강요죄 ······················································49
Ⅲ 기타 범죄 ··················································51
제3절 체포와 감금의 죄 ·································53
Ⅰ 서설 ··························································53
Ⅱ 체포·감금죄 ··············································53
Ⅲ 기타 범죄 ··················································57
제4절 약취와 유인의 죄 ·································59
Ⅰ 서설 ··························································59
Ⅱ 조문의 분석 - 2013년 개정 ······················59
Ⅲ 미성년자 약취·유인죄 ······························60
Ⅳ 기타 범죄 ··················································63
제5절 강간과 추행의 죄 ·································66
Ⅰ 서설 ··························································66
Ⅱ 조문의 분석 ··············································66
Ⅲ 강간죄 ······················································66
Ⅳ 기타 범죄 ···················································71
Ⅴ 성폭력범죄 처벌 특례법 ····························77
Ⅵ 아동·청소년의 성보호에 관한 법률 ···········81
제3장 ❙명예와 신용에 대한 죄 / 83
제1절 명예에 관한 죄 ·····································83
Ⅰ 서설 ··························································83
Ⅱ 조문의 분석 ··············································83
Ⅲ 명예훼손죄 ···············································83
Ⅳ 기타 범죄 ··················································96
제2절 신용에 관한 죄 ···································102
Ⅰ 서설 ·························································102
Ⅱ 조문의 분석 ·············································102
Ⅲ 신용훼손죄 ··············································102
제3절 업무방해죄 ·········································104
Ⅰ 서설 ·························································104
Ⅱ 업무방해죄 ··············································104
Ⅲ 기타 범죄 ·················································119
제4장 ❙사생활의 평온에 대한 죄 / 123
제1절 비밀침해의 죄 ·····································123
Ⅰ 서설 ·························································123
Ⅱ 개인의 비밀 ·············································123
제2절 주거침입의 죄 ·····································125
Ⅰ 서설 ·························································125
Ⅱ 조문의 분석 ·············································126
Ⅲ 주거침입죄 ··············································126
Ⅳ 기타 범죄 ·················································132
제5장 ❙재산에 대한 죄 / 135
제1절 재산죄의 기본개념 ······························135
Ⅰ 재산죄의 분류 ·········································135
Ⅱ 재산죄의 객체 ·········································136
Ⅲ 형법상 점유 ··············································141
Ⅳ 불법영득의사 ···········································147
Ⅴ 친족상도례 ··············································152
제2절 절도의 죄 ············································157
Ⅰ 서설 ·························································157
Ⅱ 절도죄 ·····················································157
Ⅲ 기타 범죄 ················································160
제3절 강도의 죄 ············································162
Ⅰ 서설 ·························································162
Ⅱ 강도죄 ·····················································162
Ⅲ 특수강도죄 ··············································165
Ⅳ 준강도죄 ··················································166
Ⅴ 기타 범죄 ················································170
제4절 사기의 죄 ············································177
Ⅰ 서설 ·························································177
Ⅱ 사기죄 ······················································177
Ⅲ 삼각사기 ·················································204
Ⅳ 신용카드 관련 범죄 ··································211
Ⅴ 기타 범죄 ················································216
제5절 공갈의 죄 ············································221
Ⅰ 서설 ·························································221
Ⅱ 공갈죄 ·····················································221
Ⅲ 기타 범죄 ················································226
제6절 횡령의 죄 ············································227
Ⅰ 서설 ························································227
Ⅱ 횡령죄의 본질 ·········································227
Ⅲ 횡령죄 ·····················································227
Ⅳ 기타의 횡령죄 ·········································256
Ⅴ 기타 범죄 ················································259
제7절 배임의 죄 ···········································260
Ⅰ 서설 ························································260
Ⅱ 횡령죄와 배임죄의 관계 ··························261
Ⅲ 주체 - 대행자(고용, 위임) ························262
Ⅳ 주체 - 협력자(매도등기, 계주, 공법상 채권)
·······························································274
Ⅴ 기타 문제들 ············································289
Ⅵ 기타 범죄들 ············································295
제8절 장물의 죄 ···········································303
Ⅰ 서설 ························································303
Ⅱ 장물죄의 본질 ·········································303
Ⅲ 장물의 개념 ············································304
Ⅳ 장물죄 ·····················································307
Ⅴ 기타 범죄 ·················································311
제9절 손괴의 죄 ············································313
Ⅰ 서설 ·························································313
Ⅱ 재물손괴죄 ··············································313
Ⅲ 기타 범죄 ·················································317
제10절 권리행사를 방해하는 죄 ··················320
Ⅰ 서설 ························································320
Ⅱ 권리행사방해죄 ······································320
Ⅲ 기타 범죄 ················································326
Ⅳ 강제집행면탈죄 ·······································326

제5편 사회적 법익
제1장 ❙공공의 안전과 평온에 대한 죄 / 336
제1절 공안을 해하는 죄 ································336
Ⅰ 서설 ························································336
Ⅱ 공안을 해하는 죄 ····································336
제2절 폭발물에 관한 죄 ·······························340
Ⅰ 서설 ························································340
Ⅱ 폭발물에 관한 죄 ····································340
제3절 방화와 실화의 죄 ·······························342
Ⅰ 서설 ························································342
Ⅱ 현주건조물등방화죄 ································343
Ⅲ 기타 범죄 ················································345
제4절 일수와 수리에 관한 죄 ······················349
Ⅰ 서설 ························································349
Ⅱ 일수와 수리에 관한 죄 ····························349
제5절 교통방해의 죄 ····································352
Ⅰ 서설 ························································352
Ⅱ 일반교통방해죄 ·······································352
Ⅲ 기타 범죄 ················································356
제2장 ❙공중의 건강에 대한 죄 / 358
제1절 음용수에 관한 죄 ································358
Ⅰ 서설 ························································358
Ⅱ 음용수에 관한 죄 ····································358
제2절 아편에 관한 죄 ··································360
Ⅰ 서설 ························································360
Ⅱ 아편에 관한 죄 ·······································360
제3장 ❙공공의 신용에 대한 죄 / 362
제1절 통화에 관한 죄 ···································362
Ⅰ 서설 ························································362
Ⅱ 통화위조·변조죄 ·····································362
Ⅲ 기타 범죄 ················································365
제2절 유가증권·인지·우표에 관한 죄 ··········367
Ⅰ 서설 ························································367
Ⅱ 유가증권 위조·변조죄 ·····························367
Ⅲ 자격모용에 의한 유가증권작성죄 ············373
Ⅳ 허위유가증권작성죄 ································374
Ⅴ 각 범죄의 비교 ········································375
Ⅵ 기타 범죄 ················································378
제3절 문서에 관한 죄 ··································380
Ⅰ 서설 ························································380
Ⅱ 문서 위조·변조죄 ···································380
Ⅲ 자격모용에 의한 문서작성죄 ··················395
Ⅳ 전자기록 위작·변작죄 ····························398
Ⅴ 허위문서작성죄 ······································400
Ⅵ 공정증서원본 등 불실기재죄 ···················407
Ⅶ 기타 범죄 ················································414
제4절 인장에 관한 죄 ···································418
Ⅰ 서설 ·························································418
Ⅱ 인장에 관한 죄 ········································418
제4장 ❙사회의 도덕에 대한 죄 / 421
제1절 성풍속에 관한 죄 ································421
Ⅰ 서설 ·························································421
Ⅱ 성풍속에 관한 죄 ·····································421
제2절 도박과 복표에 관한 죄 ·······················426
Ⅰ 서설 ························································426
Ⅱ 도박과 복표에 관한 죄 ····························426
제3절 신앙에 관한 죄 ··································430
Ⅰ 서설 ························································430
Ⅱ 신앙에 관한 죄 ·······································430

제6편 국가적 법익
제1장 ❙국가의 존립과 권위에 대한 죄 / 436
제1절 내란의 죄 ············································436
Ⅰ 서설 ························································436
Ⅱ 내란죄 ····················································436
제2절 외환의 죄 ···········································438
Ⅰ 서설 ························································438
Ⅱ 외환죄 ····················································438
제3절 국기에 관한 죄 ···································443
Ⅰ 서설 ························································443
Ⅱ 국기에 관한 죄 ·······································443
제4절 국교에 관한 죄 ···································444
Ⅰ 서설 ························································444
Ⅱ 국교에 관한 죄 ·······································444
제2장 ❙국가의 기능에 대한 죄 / 447
제1절 공무원의 직무에 관한 죄 ····················447
Ⅰ 서설 ························································447
Ⅱ 공무원의 개념 ·········································447
Ⅲ 직무유기죄 ·············································448
Ⅳ 직권남용죄 ·············································454
Ⅴ 기타 범죄 ················································459
제2절 뇌물에 관한 죄 ···································462
Ⅰ 서설 ························································462
Ⅱ 뇌물성 ·····················································462
Ⅲ 뇌물에 관한 죄 ·······································469
Ⅳ 뇌물의 몰수·추징 ···································484
제3절 공무방해에 관한 죄 ···························489
Ⅰ 서설 ························································489
Ⅱ 공무집행방해죄 ······································489
Ⅲ 위계에 의한 공무집행방해죄 ··················499
Ⅳ 기타 범죄 ················································507
제4절 도주죄 ·················································518
Ⅰ 서설 ·························································518
Ⅱ 도주죄 ·····················································518
제5절 범인은닉의 죄 ····································520
Ⅰ 서설 ························································520
Ⅱ 범인은닉죄 ·············································520
제6절 증거인멸의 죄 ····································526
Ⅰ 서설 ························································526
Ⅱ 증거인멸죄 ··············································526
Ⅲ 기타 범죄 ················································529
Ⅳ 친족간 특례 ············································530
제7절 위증죄 ·················································531
Ⅰ 서설 ·························································531
Ⅱ 위증죄 ·····················································531
Ⅲ 기타 위증죄 ············································537
제8절 무고죄 ················································538
Ⅰ 서설 ························································538
Ⅱ 무고죄 ····················································538
Ⅲ 자수·자백의 특례 ···································549