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형법.형사소송법 1년간 최신판례정리
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형법.형사소송법 1년간 최신판례정리

  • 신호진
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  • 문형사
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  • 2021-12-17 출간
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  • 125페이지
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  • 규격外
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  • ISBN 9791166870453
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〈 서 문 〉
“1년간 최신판례”에 대하여…

본서는 2020년 12월부터 2021년 12월 1일자 판례공보까지 1년간의 대법원 형사판례를 정리한 교재이다. 본서의 특징을 설명하면 다음과 같다.

1. 사실관계의 정리
판례는 구체적이고 특정한 사건에 대한 대법원의 판단이다. 그러므로 그 사건의 사실관계를 모르면서 판결요지만 공부하는 것은 어떤 영화의 줄거리도 모르면서 그 영화에 대해서 논하는 것처럼 실로 무의미하고 어리석은 행동이다. 이에 본서에서는 가장 먼저 판례의 사실관계를 정리하여 소개함으로써 판례를 보다 정확하고 깊게 이해할 수 있도록 하였다. 또한 최근의 문제경향이 “사례형”으로 변화해 가고 있으므로 사례를 중시하는 학습방법의 중요성이 더욱 강조되는 시점이라고 할 수 있다.

2. 쟁점의 부각
어떤 사건이 제1심이나 항소심에서 종결되지 않고 상고심인 대법원까지 올라왔다는 것은 그 사건에서 무엇인가 다투어지는 쟁점이 있었다는 것을 의미한다. 따라서 이러한 쟁점이 무엇인지를 모르고서 판례를 공부하는 것은 어떤 문제의 내용도 모르고서 해설만 읽는 것과 마찬가지로 역시 무의미하다. 이에 본서에서는 판례의 내용을 소개하기 전에 먼저 질문의 형태로 그 사건에서 다투어졌던 쟁점을 세분화하여 구체적으로 부각시킴으로써 판례를 보다 정확하게 이해할 수 있도록 하였다.

3. 중요부분의 강조
판례를 정식으로 공부하기 위해서는 판결문 전체를 읽어야 하겠지만, 그 내용이 방대하기 때문에 대법원은 판례의 핵심적 내용을 “판결요지”의 형태로 정리해서 제공하고 있다. 이에 따라 본서에서는 판결요지는 전체를 수록하였고, 이것만으로 이해가 어려울 경우에는 판결문에서 판결이유를 발췌해서 소개하였다. 그러나 최근에는 이 판결요지의 분량도 매우 많아져서 학습의 부담을 가중시키고 있다. 이에 본서에서는 객관식 문제의 지문으로 출제가 가능하거나 주관식 문제의 답안에 서술해야만 하는 중요부분에 대해서는 언더라인이나 고딕체로 강조함으로써 학습의 능률을 높이고 최종정리시에 신속한 정리가 가능하도록 하였다.

2021. 12. 11. 법학박사 신호진


목차


…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
1. 공소시효의 연장과 소급효 (大判 2019도5371) ······················································ 3
2. 공소시효의 정지와 소급효 (大判 2020도3694) ······················································ 4
3. 운전면허 취소처분 취소의 소급효 (大判 2019도11826) ········································· 7
4. 유추해석금지의 원칙 (大判 2020도12017) ···························································· 8
5. 유추해석금지의 원칙 (大判 2017도13182) ·························································· 10
[2] 형법의 시간적 적용범위 ·················································································· 12
6. 형법 제1조 제1항과 소급효금지의 원칙 (大判 2020도7307) ································· 12
[3] 행위의 주체와 객체 ························································································ 13
7. 양벌규정에 의한 법인 처벌의 근거 (大判 2019도3595) ········································ 13
[4] 부작위범 ······································································································· 14
8. 진정부작위범의 공동정범의 성립요건 (大判 2018도12973) ··································· 14
[5] 정당행위 ······································································································· 16
9. 모욕과 정당행위 (大判 2020도14576) ································································ 16
10. 정당행위 (大判 2017도10634) ········································································ 18
[6] 종 범 ··········································································································· 19
11. 방조행위와 정범행위 사이의 인과관계 등 (大判 2015도12632) ··························· 19
12. 방조의 성립여부 (大判 2017도19025, 전원합의체 판결) ····································· 23
[7] 죄수론 ·········································································································· 26
13. 음란물 제작과 소지의 관계 (大判 2021도2993) ················································· 26
14. 형법 제39조 제1항의 적용요건 (大判 2021도8719) ··········································· 28
[8] 형벌의 종류 ·································································································· 29
15. 형법상 몰수의 대상인 ‘물건’의 의미 (大判 2021도7168) ···································· 29
16. 형법 제48조의 몰수의 대상 (大判 2020도10970) ·············································· 30
[9] 형의 양정 ····································································································· 31
17. 형의 임의적 감경의 방법 (大判 2018도5475, 전원합의체 판결) ··························· 31
[10] 집행유예·선고유예·가석방 ·············································································· 34
18. 사회봉사명령시 원상회복명령의 부과 여부 (大判 2017도18291) ·························· 34

…… 형 법 각 론 ……
[1] 약취와 유인의 죄 ··························································································· 36
1. 부작위에 의한 미성년자 약취 (大判 2019도16421) ·············································· 36
[2] 강간과 추행의 죄 ··························································································· 38
2. 알코올 블랙아웃(black out)과 심신상실 (大判 2018도9781) ································· 38
3. 주거침입유사강간죄의 주체 및 실행의 착수시기 (大判 2020도17796) ···················· 41
[3] 명예에 관한 죄 ······························································································ 43
4. 공적인 인물에 대한 명예훼손 (大判 2016도14995) ·············································· 43
5. 전파가능성과 공연성 (大判 2020도5813, 전원합의체 판결) ··································· 45
6. 형법 제310조의 적용요건 (大判 2021도6416) ····················································· 50
7. ‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계 (大判 2020도11471) ········· 51
8. 모욕과 사회상규에 위배되지 않는 행위 (大判 2017도17643) ································ 53
[4] 신용·업무와 경매에 관한 죄 ············································································ 55
9. 업무방해죄에서 ‘허위사실 유포’의 의미와 판단방법 (大判 2021도6634) ················· 55
[5] 주거침입의 죄 ······························································································· 57
10. 타인이 공동주거자 일부의 동의를 얻어 들어간 경우 (大判 2020도12630, 전원합의체 판결) ·················································································································· 57
11. 공동주거자가 다른 공동주거자의 의사에 반하여 들어간 경우 (大判 2020도6085, 전원합의체 판결) ······································································································· 60
12. 공동주택 출입에 대한 동의권자 (大判 2017도21323) ········································· 63
[6] 강도의 죄 ····································································································· 65
13. 강도죄와 불법이득의사 (大判 2020도4539) ······················································· 65
[7] 사기의 죄 ····································································································· 67
14. 행정법규 등의 위반과 기망행위 (大判 2016도16343) ········································· 67
[8] 횡령의 죄 ····································································································· 69
15. 양자간 명의신탁과 횡령죄 (大判 2016도18761, 전원합의체 판결) ······················· 69
16. 채권 양도담보계약에서 채무자의 지위 (大判 2020도12927) ································ 71
[9] 배임의 죄 ····································································································· 72
17. 동산 저당권 설정의무와 사무의 타인성 (大判 2020도6258, 전원합의체 판결) ······· 72
18. 지입회사 운영자와 지입차주의 관계 (大判 2018도14365) ··································· 74
19. 수분양권 매도인의 지위 (大判 2014도12104) ··················································· 75
20. 채권양도담보계약에서 채무자의 지위 (大判 2015도5184) ··································· 76
21. 부작위에 의한 업무상배임죄의 실행의 착수시기 (大判 2020도15529) ·················· 77
22. 배임수재죄에서 ‘부정한 청탁’ 및 ‘제3자’의 의미 (大判 2019도17102) ················· 78
[10] 문서에 관한 죄 ···························································································· 80
23. 사문서와 공문서의 구별 (大判 2020도14666) ··················································· 80
24. 문서 위조의 정도 (大判 2019도8443) ······························································ 81
25. 공문서변조의 정도 (大判 2018도19043) ··························································· 83
26. 허위공문서작성죄에서 ‘허위’의 대상 (大判 2019도18394) ··································· 84
[11] 공무원의 직무에 관한 죄 ·············································································· 85
27. 직권남용과 의무 없는 일 (大判 2019도17879) ·················································· 85
28. 직권남용의 의미 및 판단기준 (大判 2020도12583) ············································ 86
29. 수뢰후부정처사죄에서 부정행위의 시기 (大判 2020도12103) ······························ 89
[12] 공무방해에 관한 죄 ······················································································ 90
30. 공무집행의 적법성의 요건과 판단기준 (大判 2018도2993) ·································· 90
31. 위계에 의한 공무집행방해죄의 기수시기 (大判 2018도18582) ····························· 92
32. 공무소에서 사용하는 전자기록의 의미 (大判 2015도19296) ································ 94
[13] 위증과 증거인멸의 죄 ····················································································96
33. 증거위조죄에서 ‘증거’ 및 ‘위조’의 개념 (大判 2020도2642) ································ 96

…… 형 법 소 송 법 ……
[1] 대물적 강제수사 ···························································································· 98
1. 압수·수색에의 참여권 (大判 2020도10729) ························································· 98
2. 헌법불합치결정과 그에 따른 개정 형사소송법의 소급적용 여부 (大判 2018도13458) ·· 100
[2] 공판심리의 범위 ·························································································· 102
3. 공소장변경허가신청서 부본을 송달하지 않은 경우 (大判 2019도7217) ················· 102
[3] 증거조사와 강제처분 ···················································································· 104
4. 증인의 불출석에 대한 법원의 조치 (大判 2020도2623) ······································ 104
5. 검사의 사전면담 후 증인의 증언의 신빙성 (大判 2020도15891) ·························· 106
6. 변호인의 피고인신문권 (大判 2020도10778) ····················································· 108
[4] 재판의 기본개념 ·························································································· 109
7. 재판서 경정의 방법 (大判 2017도18536) ························································· 109
[5] 상소의 일반이론 ·························································································· 111
8. 파기환송과 불이익변경금지의 원칙 (大判 2021도1282) ······································ 111
9. 부정기형과 불이익변경금지의 원칙 (大判 2020도4140, 전원합의체 판결) ············· 112
[6] 항 소 ········································································································· 116
10. 항소이유서 제출기간의 계산방법 (大決 2020모3694) ······································· 116
[7] 재 심 ········································································································· 117
11. 재심개시절차에서의 사실조사 (大決 2019모3554) ············································ 117
[8] 비상상고 ····································································································· 118
12. 비상상고의 대상 (大判 2019오1) ··································································· 118
13. 사실오인과 비상상고 (大判 2018오2) ····························································· 119
[9] 재판의 집행 ································································································ 121
14. 추징판결 집행의 대상 (大決 2020모4058) ······················································ 121

※ 참고판례 ······································································································· 122
1. 차의 운전자의 횡단보도에서의 보행자 보호의무 (大判 2020도8675) ···················· 122
2. 도로교통법상 ‘운전’의 의미 (大判 2020도9994) ················································ 122
3. 도로교통법상 ‘운전’의 의미 (大判 2017도10815) ··············································· 123
4. 도로교통법상의 ‘공동위험행위’와 ‘공동의사’ (大判 2018도10327) ························ 123
5. 성폭력처벌법상 의붓아버지와 의붓딸의 관계 (大判 2020도10806) ······················· 124
6. 성충동약물치료법과 ‘정당한 사유’ (大判 2020도16111) ······································ 124
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