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2021 형법 5년간 판례정리
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2021 형법 5년간 판례정리

  • 신호진
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  • 문형사
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  • 2021-06-30 출간
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  • 399페이지
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  • 규격外
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  • ISBN 9791166870231
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…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
1. 위임입법의 허용요건 및 한계(大判 2015도16014, 전원합의체 판결) ························ 3
2. 위임입법의 한계(大判 2018도7989) ····································································· 5
3. 소급효금지의 원칙(大判 2017도17809) ································································ 9
4. 헌법불합치결정의 성격 및 효력(大判 2017도8610) ·············································· 10
5. 음주운전전과의 계산과 소급효금지의 원칙(大判 2020도7154) ······························· 12
6. 공소시효의 정지·연장·배제와 소급효(大判 2020도3694) ······································· 13
7. 공소시효의 정지와 소급효(大判 2016도7273) ····················································· 15
8. 명확성의 원칙(大決 2018초기306) ····································································· 17
9. 유추해석금지의 원칙(大判 2015도8335, 전원합의체 판결) ···································· 19
10. 유추해석금지의 원칙(大判 2017도14749, 전원합의체 판결) ································ 21
[2] 형법의 시간적 적용범위 ·················································································· 35
11. 형법 제1조 제2항과 경과규정의 관계(大判 2016도16757) ·································· 35
12. 형법 제1조 제2항과 동기설(大判 2015도2390) ·················································· 36
[3] 형법의 장소적 적용범위 ·················································································· 38
13. 외국인의 국외범과 보호주의(大判 2016도17465) ································································· 38
14. 외국에서의 미결구금에 대한 형법 제7조의 유추적용 여부(大判 2017도5977, 전원합의체 판결) ····39
[4] 범죄의 의의와 종류 ························································································ 42
15. 즉시범과 계속범의 구별실익(大判 2017도7937) ················································· 42
[5] 행위의 주체와 객체 ························································································ 44
16. 대표자의 위법행위에 대한 법인 처벌의 근거(大判 2013도6962) ·························· 44
17. 법인 설립 이전의 행위에 대한 양벌규정의 적용 여부(大判 2015도10388) ············ 45
18. 양벌규정에 의한 벌칙규정의 수범자 영역의 확대(大判 2017도13982) ·················· 46
[6] 정당행위 ······································································································· 48
19. 노동조합 조합활동의 정당성 인정요건(大判 2017도2478) ··································· 48
20. 쟁의행위의 정당성(大判 2015도1927) ······························································ 50
21. 사용자의 직장폐쇄의 정당성(大判 2013도7896) ················································· 52
22. 민법상 자력구제의 요건(大判 2017도9999) ······················································· 53
23. ‘사회상규에 위배되지 아니하는 행위’의 인정요건(大判 2017도2758) ···················· 54
[7] 책임능력 ······································································································· 56
24. 형법 제10조의 심신장애의 판단방법 등(大判 2018도7658) ································· 56
25. 법률의 착오와 정당한 이유(大判 2014도12773) ················································ 58
[8] 기대가능성 ···································································································· 60
26. 병역법 제88조 제1항의 ‘정당한 사유’의 의미(大判 2016도10912, 전원합의체 판결) ·· 60
[9] 불능미수 ······································································································· 64
27. 불능미수의 성립요건(大判 2019도97) ······························································· 64
28. 준강간죄의 불능미수(大判 2018도16002, 전원합의체 판결) ································ 65
[10] 정범·공범의 일반이론 ··················································································· 69
29. 대향범과 형법총칙상의 공범규정의 적용 여부(大判 2017도4240) ························· 69
30. 대향범과 공범규정의 적용 여부(大判 2016도3048) ············································ 71
[11] 간접정범 ····································································································· 73
31. 피해자의 행위를 이용한 경우(大判 2016도17733) ············································· 73
[12] 공동정범 ····································································································· 74
32. 공모공동정범의 성립요건(大判 2017도14322, 전원합의체 판결) ·························· 74
33. 공모공동정범의 성립요건 등(大判 2016도15470) ··············································· 76
[13] 종 범 ········································································································· 78
34. 종범의 성립상의 종속성(大判 2016도12865) ····················································· 78
[14] 공범과 신분 ································································································ 79
35. 비신분자가 가중적 신분자의 범행에 가담한 경우(大判 2018도10047) ·················· 79
36. 불구성적 신분과 공범(大判 2017도378) ···························································· 80
[15] 수 죄 ········································································································· 81
37. 포괄일죄와 실체적 경합범의 구별기준(大判 2018도10779) ································· 81
38. 포괄일죄와 실체적 경합범의 구별기준(大判 2020도1355) ··································· 82
39. 재심대상사건과 재심판결 확정 전에 범한 범죄의 관계(大判 2018도20698, 전원합의체 판결) · 85
40. 형법 제39조 제1항이 적용되는 경우(大判 2018도14863) ··································· 87
41. 사후적 경합범에서 형 감경의 방법(大判 2017도14609, 전원합의체 판결) ············· 88
[16] 형벌의 종류 ································································································ 91
42. 몰수와 추징 관련 판례(大判 2017도8611) ························································ 91
[17] 형의 양정 ··································································································· 93
43. 형의 임의적 감경의 방법(大判 2018도5475, 전원합의체 판결) ································· 93
[18] 누 범 ········································································································· 96
44. 누범전과와 형 선고의 유효성(大判 2017도4019) ··············································· 96
45. 특가법 제5조의4 제5항의 절도와 누범가중(大判 2019도18947) ·························· 97
46. ‘특정범죄 가중처벌 등에 관한 법률’상의 누범전과의 계산방법(大判 2019도17381) · 98
47. ‘특정범죄 가중처벌 등에 관한 법률’ 제5조의4 제5항의 누범전과의 의미(大判 2019도18891) · 100
[19] 집행유예·선고유예·가석방 ············································································ 102
48. 집행유예 결격사유(大判 2018도17589) ··························································· 102
49. 사회봉사명령시 원상회복명령의 부과 여부(大判 2017도18291) ·························· 103
50. 사후적 경합범에 대한 선고유예 여부(大判 2018오1) ········································ 105
51. 선고유예 실효 결정의 시기(大決 2017모3459) ················································ 106

…… 형 법 각 론 ……
[1] 상해와 폭행의 죄 ························································································· 107
1. 특수상해죄에서의 ‘위험한 물건’ 및 형법 제1조 제2항의 적용 여부(大判 2015도5854) ·· 107
2. 폭행죄에서 폭행의 개념(大判 2016도9302) ······················································· 109
3. 상습폭행죄의 죄수와 소추조건(大判 2017도10956) ············································ 110
4. 상습범에 대한 형의 1/2 가중의 방법(大判 2016도18194) ··································· 111
[2] 과실치사상의 죄 ·························································································· 113
5. 업무상과실치상죄와 ‘교통사고처리 특례법’의 관계(大判 2016도21034) ················· 113
6. 업무상과실치사상죄에서 ‘업무’의 의미(大判 2016도16738) ································· 114
[3] 강요의 죄 ··································································································· 115
7. 강요죄의 수단인 협박의 의미(大判 2015도16696) ··························································· 115
[4] 체포와 감금의 죄 ························································································· 117
8. 체포죄의 실행의 착수시기와 기수시기(大判 2016도18713) ································· 117
9. 부작위에 의한 감금(大判 2017도7134) ····························································· 118
[5] 약취·유인 및 인신매매의 죄 ·········································································· 119
10. 미성년자약취죄의 주체(大判 2015도10032) ····················································· 119
[6] 강간과 추행의 죄 ························································································· 120
11. 강간의 수단인 폭행의 정도와 그 판단기준 등(大判 2017도21249) ····················· 120
12. 강간죄에서 폭행·협박과 간음행위의 선후관계(大判 2016도16948) ····················· 121
13. 강제추행죄에서의 폭행과 추행의 정도(大判 2019도15994) ································ 122
14. 알코올 블랙아웃(black out)과 심신상실(大判 2018도9781) ······························· 124
15. 준강간죄의 실행의 착수시기(大判 2018도19295) ············································· 126
16. 강간치상죄나 강제추행치상죄에 있어서 ‘상해’의 의미(大判 2017도3196) ············ 127
17. 위계에 의한 간음죄에서 ‘위계’의 의미(大判 2015도9436, 전원합의체 판결) ········ 128
18. 위력에 의한 심신미약자 추행죄의 성립 여부(大判 2019도3341) ························ 130
19. 업무상 위력에 의한 추행의 객체 등(大判 2020도5646) ···································· 132
20. 공중 밀집장소에서의 추행의 의미(大判 2015도7102) ······································· 133
[7] 명예에 관한 죄 ···························································································· 141
21. 명예의 주체(大判 2014도15290) ···································································· 141
22. 전파가능성과 공연성(大判 2020도5813, 전원합의체 판결) ································ 142
23. 공적인 인물에 대한 명예훼손(大判 2016도14995) ············································ 147
24. 공직자에 대한 명예훼손 등(大判 2016도14678) ··············································· 149
25. ‘사실의 적시’와 ‘의견 표현’의 구별기준(大判 2017도15628) ······························ 151
26. ‘사실의 적시’와 ‘의견표현’의 구별기준(大判 2016도19255) ······························· 153
27. ‘사실을 드러내어’의 의미와 정도(大判 2019도12750) ······································· 154
28. 명예훼손죄의 고의(大判 2016도15819) ··························································· 156
29. 질문과 명예훼손죄의 고의(大判 2018도4200) ·················································· 157
30. 형법 제310조와 공공의 이익(大判 2016도8557) ·············································· 158
31. ‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계(大判 2018도15868) ······· 159
32. ‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계(大判 2020도11471) ······· 161
33. 무례한 표현과 모욕의 관계(大判 2017도2661) ················································ 163
34. 모욕죄의 기수시기(大判 2016도9674) ···························································· 164
35. 모욕과 사회상규에 위배되지 않는 행위(大判 2017도17643) ······························ 166
[8] 신용·업무와 경매에 관한 죄 ·········································································· 168
36. 업무방해죄에서 ‘업무’의 의미(大判 2014도3270) ············································· 168
37. ‘허위사실의 유포’에서 ‘허위’의 판단기준(大判 2016도19159) ···························· 169
38. 업무방해죄에서 ‘위계’의 의미(大判 2016도18858) ··········································· 170
39. 업무방해죄에서 ‘위력’의 정도(大判 2017도12541) ··········································· 171
40. 부작위에 의한 위력의 인정요건(大判 2017도13211) ········································· 172
41. 업무방해죄에서 ‘위력’의 정도(大判 2016도10956) ··········································· 173
42. 위계·위력에 의한 업무방해죄의 성립요건 등(大判 2017도19499) ······················· 174
43. 업무담당자의 심사의무와 업무방해죄의 기수시기(大判 2017도19283) ················ 178
44. 위계에 의한 업무방해죄의 기수시기(大判 2016도15144) ··································· 180
[9] 주거침입의 죄 ····························································································· 181
45. 건조물과 위요지의 요건(大判 2017도690) ······················································· 181
46. 주거침입죄의 객체와 위요지(大判 2019도16484) ············································· 182
47. 공동주택 출입에 대한 동의권자(大判 2017도21323) ········································· 183
[10] 재산죄의 기본개념 ····················································································· 185
48. 친족상도례의 적용효과(大判 2016도6757) ······················································ 185
[11] 절도의 죄 ·································································································· 115
49. 절도죄의 객체(大判 2016도15492) ································································· 186
50. 상습절도죄와 주거침입죄의 관계(大判 2017도4044) ········································· 187
[12] 사기의 죄 ·································································································· 188
51. 기망행위에 의하여 국가적·공공적 법익을 침해한 경우(大判 2019도2003) ··········· 188
52. 종교행위와 사기죄의 관계(大判 2016도12460) ················································ 189
53. 규정을 위반한 공사도급계약체결과 사기죄(大判 2015도10570) ·························· 190
54. 요양급여비용·보험금 청구와 기망행위(大判 2017도17699) ································ 192
55. 요양급여비용에 대한 사기죄의 성립 여부(大判 2019도1839) ····························· 194
56. 사기죄의 피해자(大判 2017도19799) ······························································ 195
57. 보험계약 체결시의 고지의무 위반(大判 2014도2754) ······································· 196
58. 보험계약 체결시의 고지의무 위반(大判 2017도1405) ······································· 197
59. 채무불이행과 사기죄(大判 2017도20682) ························································ 198
60. 부작위에 의한 기망과 고지의무(大判 2018도13696) ········································· 200
61. 기망행위의 상대방(大判 2017도8449) ···························································· 202
62. 처분행위의 기능과 요건(大判 2018도7030) ····················································· 203
63. 처분의사의 내용(大判 2016도13362, 전원합의체 판결) ····································· 204
64. 소송사기의 성립요건(大判 2018도13305) ························································ 208
65. 기망행위와 처분행위 사이의 인과관계(大判 2015도20233) ································ 209
66. 기망행위와 처분행위 사이의 인과관계(大判 2015도12932) ································ 210
67. 사기죄의 편취액 산정방법(大判 2017도12649) ················································ 211
68. 사기죄의 편취액 산정방법(大判 2018도19772) ················································ 212
69. 채무불이행과 사기죄(大判 2015도18555) ························································ 213
[13] 공갈의 죄 ·································································································· 214
70. 권리행사와 공갈죄(大判 2018도19493) ··························································· 214
[14] 횡령의 죄 ·································································································· 215
71. 채권 양도담보계약에서 채무자의 지위(大判 2020도12927) ································ 215
72. 횡령죄의 주체와 위탁관계(大判 2017도17494, 전원합의체 판결) ······················· 216
73. 사기죄의 죄수 및 횡령죄에서의 위탁관계(大判 2017도3894) ····························· 220
74. 불법원인급여와 횡령죄(大判 2017도9254) ······················································ 221
75. 불법원인급여와 횡령죄(大判 2017도11931) ····················································· 222
76. 불법원인급여와 횡령죄(大判 2016도18035) ····················································· 223
77. 횡령죄의 객체(大判 2019도9773) ·································································· 225
78. 횡령죄의 객체(大判 2013도658) ···································································· 226
79. 목적·용도를 한정하여 위탁된 금전의 소유관계(大判 2015도18253) ···················· 228
80. 목적·용도를 한정하여 위탁된 금전의 소유관계(大判 2013도14777) ···················· 230
81. 양자간 명의신탁과 횡령죄(大判 2016도18761, 전원합의체 판결) ······················· 232
82. 법인·단체의 자금으로 대표자의 소송비용을 지급한 경우(大判 2016도5816) ········ 234
83. 횡령죄의 불법영득의사(大判 2017도953) ························································ 235
84. 비자금의 조성·사용과 불법영득의사(大判 2016도9027) ····································· 237
85. 용도가 엄격하게 제한된 자금을 전용한 경우(大判 2016도16388) ······················ 239
[15] 배임의 죄 ·································································································· 240
86. 채무자의 동산 양도담보 목적물 보관의무(大判 2019도9756, 전원합의체 판결) ···· 240
87. 채무자의 ‘동산채권담보법’상 담보로 제공된 동산에 대한 보관의무(大判 2019도14770, 전원합의체 판결) ······························································································· 243
88. 배임죄에서 ‘타인의 사무를 처리하는 자’의 의미(大判 2014도9907) ···················· 245
89. 동산 저당권 설정의무와 사무의 타인성(大判 2020도6258, 전원합의체 판결) ······· 247
90. 영업비밀 누설행위(大判 2014도11876) ··························································· 249
91. 영업비밀 누설행위(大判 2017도3808) ···························································· 251
92. 배임죄에서 재산상 손해의 의미 및 판단기준(大判 2016도3674) ························ 252
93. 대표권 남용에 의한 약속어음 발행의 경우 배임죄의 기수·미수 판단기준(大判 2014도1104, 전원합의체 판결) ······················································································ 254
94. 대표권 남용의 경우 배임죄의 기수·미수의 판단기준(大判 2014도9960) ·············· 257
95. 배임죄에서 재산상 손해의 의미 및 판단기준(大判 2017도6151) ························ 259
96. 주권발행 전 주식의 이중양도(大判 2015도6057) ············································· 261
97. 채무자의 저당권설정의무 및 부동산 양도담보설정의무의 성격(大判 2019도14340, 전원합의체 판결) ·················································································································· 262
98. 경영판단과 배임죄의 고의(大判 2015도12633) ················································ 264
99. 배임죄와 사기죄의 관계(大判 2016도15226) ··················································· 266
100. 부동산 이중매매의 형사책임(大判 2017도4027, 전원합의체 판결) ···················· 267
101. 매도인이 매수인에게 가등기를 해 준 후 이중매매를 한 경우(大判 2019도16228) · 270
102. 서면으로 증여한 부동산을 제3자에게 처분한 경우(大判 2016도19308) ············· 271
103. 부동산 교환계약과 이중매매의 법리(大判 2016도11337) ································· 272
104. 채무자의 저당권설정의무 및 부동산 양도담보설정의무의 성격(大判 2019도14340, 전원합의체 판결) ·································································································· 273
105. 사기의 공범자간에 돈을 수수한 행위의 죄책(大判 2015도18795) ····················· 275
106. 배임수재죄의 객체와 공범(大判 2014도17211) ·············································· 276
107. 배임수재죄의 기수시기(大判 2017도11564) ··················································· 277
[16] 손괴의 죄 ·································································································· 278
108. 손괴의 의미(大判 2016도9219) ···································································· 278
109. 재물손괴죄에서 ‘효용을 해하는 것’의 의미(大判 2017도18807) ······················· 279
110. 재물손괴죄에서 ‘효용을 해하는 것’의 의미(大判 2017도20455) ······················· 280
[17] 권리행사를 방해하는 죄 ·············································································· 282
111. 권리행사방해죄의 객체(大判 2017도4578) ····················································· 282
112. 권리행사방해죄에서 ‘은닉’의 의미(大判 2017도2230) ····································· 283
113. 권리행사방해죄에서 ‘은닉’의 의미(大判 2016도13734) ···································· 284
114. 강제집행면탈죄의 객체(大判 2017도6229) ····················································· 285
115. 강제집행면탈죄의 객체(大判 2016도19982) ··················································· 286
116. 강제집행면탈죄의 기수시기(大判 2016도847) ················································ 287
[18] 공안을 해하는 죄 ······················································································· 288
117. 범죄를 목적으로 하는 단체 및 집단의 의미(大判 2019도16263) ······················ 288
118. 범죄단체활동죄와 사기죄의 관계(大判 2017도8600) ······································· 290
[19] 교통방해의 죄 ··························································································· 292
119. 일반교통방해죄의 객체인 ‘육로’의 의미(大判 2016도12563) ···························· 292
120. 집회·시위와 일반교통방해죄의 관계(大判 2017도1056) ··································· 293
[20] 유가증권에 관한 죄 ···················································································· 295
121. 구 부정수표단속법 제5조의 수표 위조·변조의 의미(大判 2019도12022) ············ 295
[21] 문서에 관한 죄 ·························································································· 296
122. 사문서와 공문서의 구별(大判 2020도14666) ················································· 296
123. 문서 복사행위와 위조(大判 2016도2081) ······················································ 297
124. 문서 위조의 정도(大判 2019도8443) ···························································· 298
125. 공문서 변조의 의미(大判 2016도5218) ························································· 300
126. 사문서변조죄의 객체(大判 2014도14924) ······················································ 301
127. 작성권한자가 문서의 내용 일부를 삭제한 경우(大判 2016도20954) ·················· 302
128. 공문서변조의 정도(大判 2018도19043) ························································· 303
129. 자격모용에 의한 사문서작성죄에서 자격모용의 방법(大判 2017도14560) ·········· 304
130. 사전자기록위작죄에서 ‘위작’의 의미(大判 2019도11294, 전원합의체 판결) ········ 305
131. 공전자기록위작·변작죄의 객체와 유추해석금지의 원칙(大判 2016도19170) ········ 311
132. 허위진단서작성죄에서 허위의 대상(大判 2014도15129) ·································· 313
133. 보조공무원이 허위공문서를 완성한 경우(大判 2016도13912) ··························· 315
134. 허위 채무를 가장하기 위한 근저당권설정등기(大判 2014도2415) ····················· 316
135. ‘불실기재’인가의 판단기준(大判 2017도21783) ·············································· 317
136. 공전자기록 등 불실기재죄에서 ‘불실의 사실’의 의미(大判 2019도7729) ············ 318
137. 공문서부정행사죄의 객체(大判 2018도2560) ·················································· 320
[22] 성풍속에 관한 죄 ······················································································· 321
138. 공연음란죄에서 음란성의 판단기준(大判 2019도14056) ·································· 321
[23] 도박과 복표에 관한 죄 ··············································································· 323
139. 도박공간개설죄와 ‘영리의 목적’(大判 2020도8978) ········································ 323
[24] 공무원의 직무에 관한 죄 ············································································ 324
140. 범인도피죄와 직무유기죄의 관계(大判 2015도1456) ······································· 324
141. 공무상비밀누설죄의 객체(大判 2014도11441) ················································ 325
142. 직권남용의 의미 및 판단기준(大判 2020도12583) ·········································· 327
143. 직권남용과 의무 없는 일(大判 2019도17879) ················································ 330
144. 직권남용죄와 강요죄의 성립요건(大判 2018도2236, 전원합의체 판결) ·············· 331
145. 직권남용죄와 강요죄의 성립요건(大判 2019도5186) ······································· 336
146. 실무자의 행위가 ‘의무 없는 일’에 해당하는지의 판단기준(大判 2019도11698) ·· 339
147. 공무원이 횡령한 자금을 공범자끼리 수수한 경우(大判 2019도11766) ··············· 341
148. 뇌물의 몰수·추징가액의 계산방법(大判 2016도21536) ···································· 342
149. 뇌물수수죄의 주체(大判 2015도576) ···························································· 343
150. 공여자와 수뢰자 사이의 뇌물의 직접 수수 여부(大判 2017도12389) ················ 344
151. 뇌물수수죄와 제3자뇌물수수죄 및 강요죄의 성립 여부(大判 2018도13792,2018도2738, 전원합의체 판결) ······················································································ 346
152. 뇌물약속죄에서 뇌물의 가액의 확정 여부(大判 2016도3753) ··························· 351
153. 뇌물수수죄와 알선뇌물수수죄의 성립요건(大判 2017도12346) ························· 353
154. 제3자뇌물수수죄의 공범 및 죄수(大判 2016도19659) ····································· 355
155. 수뢰후부정처사죄에서 부정행위의 시기(大判 2020도12103) ···························· 357
[25] 공무방해에 관한 죄 ···················································································· 358
156. 현행범인 체포의 적법요건(大判 2017도21537) ·············································· 358
157. 직무집행의 적법성(大判 2013도2168) ··························································· 359
158. 공무원의 직무집행의 적법성(大判 2016도19417) ··········································· 361
159. 체포시 미란다 원칙의 고지시기(大判 2017도10866) ······································· 363
160. 형집행장 집행의 적법요건(大判 2017도9458) ················································ 364
161. 위계에 의한 공무집행방해죄와 직권남용죄(大判 2018도18646) ························ 365
162. 위계에 의한 공무집행방해죄의 기수 및 종료시기(大判 2017도2583) ················ 367
163. 위계에 의한 공무집행방해죄의 기수시기(大判 2018도18582) ··························· 368
164. 공무상표시무효죄의 성립요건(大判 2015도5403) ············································ 370
165. 공무소에서 사용하는 전자기록의 의미(大判 2015도19296) ······························ 371
[26] 도주와 범인은닉의 죄 ················································································· 373
166. 범인도피죄의 주체(大判 2015도20396) ························································· 373
[27] 위증과 증거인멸의 죄 ················································································· 374
167. 증거은닉죄의 객체(大判 2015도1000) ··························································· 374
168. 자기의 형사사건에 관한 증거은닉 교사행위(大判 2016도5596) ························ 375
169. 증거위조죄에서 ‘증거’ 및 ‘위조’의 개념(大判 2020도2642) ······························ 376
[28] 무고의 죄 ·································································································· 378
170. 무고죄에서 ‘허위’의 증명 정도(大判 2018도2614) ·········································· 378
171. 무고죄에서 허위의 판단시점(大判 2015도15398) ··········································· 380
172. 친고죄에서 고소기간이 경과한 허위사실을 신고한 경우(大判 2018도1818) ······· 381
173. 자기무고와 무고죄의 공동정범(大判 2013도12592) ········································ 382
174. 무고죄에서 자백의 절차와 시기(大判 2018도7293) ········································· 383

참고판례 ··········································································································· 384
판례색인 ··········································································································· 397
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