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[머 리 말]
‘이론·판례 정리서’ “M-NOTE 형법”에 대해서
형법교재를 만들다 보면 상반된 두 가지의 요구가 서로 충돌하는 것을 느끼게 된다.
첫 번째 요구는 내용적으로 빠짐이 없어야 한다는 것이다. 이러한 요구를 충족시키기 위한 교재를 “기본서”라고부를 수 있을 것이다. 그러나 기본서는 내용이 상세하여 이해하는 데는 도움을 주지만, 책의 분량이 너무 많아서 정리를 하는데 문제가 있다. 두 번째 요구는 분량이 많지 않아야 한다는 것이다. 이러한 요구를 충족시키기 위한 교재를 “요약서”라고 부를 수 있을 것이다. 그러나 요약서는 분량이 적어서 심리적인 부담을 주지는 않지만,
지나친 요약으로 인해서 그 내용을 이해하기가 어렵다는 문제가 있다. 따라서 분량이 지나치게 많지는 않지만, 내용에 빠짐이 없고, 여기에 더해서 읽어서 이해하는데 별어려움이 없는 교재... 이러한 고민에서 탄생하게 된 교재가 바로 지금 출간된 “M-NOTE 형법”이다.
“M-NOTE 형법”은 기본서의 성격을 갖는 “MASTER 형법”이나 “(신)형법요론”의 핵심적 내용을 다시 압축·정리한 교재이다. 그러나 요약서처럼 과도하게 축약한 교재는 아니기 때문에 기본서와 요약서의 중간 정도에 위치하는 교재가 될 것이다. 그래서 “정리서”라는 이름을 붙였다. “M-NOTE 형법”은 “MASTER 형법”과 “(신)형법요론”의 내용을 적절하게 정리하였지만, 내용적으로 빠진 것은 없다. 이론도, 판례도 “MASTER 형법”과 “(신)형법요론”에 들어 있는 내용들이 빠짐없이 수록되어 있다. 그렇지만 지나친 요약의 형태는 피하고 서술적인 방식을 취함으로서 독자들이 혼자 읽어도 그 내용을 이해할 수 있도록 하였다. 그러므로 “M-NOTE 형법”은 “MASTER 형법”이나 “(신)형법요론”이 너무 부담스러운 형법의 초보자·입문자들이나, 이미 “MASTER 형법”이나 “(신)형법요론”을 본 독자 중에서 정리에 부담을 느끼는 독자들이 이론과 판례의 간결한 정리를 위해서 이용하면 매우 편리할 것이라고 생각한다. 그리고 2012년 12월 18일 및 2013년 3월 5일에 개정된 형법의 내용도 전부 반영하였다.
출간된 이후에는 항상 아쉬운 점이 남지만, 저자는 지난 겨울을 모두 “M-NOTE 형법”을 정리 하는데 바쳤다. 그만큼 혼신의 힘을 다하여 만든 교재이니만큼 이 교재가 독자 여러분의 조기합격에 큰 기여가 되기를 진심으로 바랄 뿐이다.
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M-NOTE 형법(총론)
제1편 형법의 일반이론
제1장 형법의 기본개념
제1절 형법의 의의와 성격 ····························································································································· 3
[1] 형법의 의의/ 3 [2] 형법의 성격/ 4
제2절 형법의 기능 ············································································································································· 5
[1] 규제적 기능/ 5 [2] 보호적 기능/ 5 [3] 보장적 기능/ 6
제3절 형법의 발전 ············································································································································· 7
제2장 형법의 기본원리
제1절 죄형법정주의 ··········································································································································· 8
[1] 죄형법정주의의 의의/ 8 [2] 죄형법정주의의 발전과정/ 9
[3] 죄형법정주의의 내용/ 10
제2절 형법이론 ·················································································································································· 33
[1] 형법학파/ 33 [2] 형벌이론/ 34 [3] 범죄이론/ 35
제3장 형법의 적용범위
제1절 형법의 시간적 적용범위 ·················································································································· 37
[1] 서 설/ 37 [2] 형법의 태도/ 37 [3] 한시법/ 47
제2절 형법의 장소적 적용범위 ·················································································································· 51
[1] 서 설/ 51 [2] 형법의 태도/ 51
제3절 형법의 인적 적용범위 ······················································································································ 57
[1] 의 의/ 57 [2] 예 외/ 57
제2편 범 죄 론
제1장 범죄론의 기초
제1절 범죄의 의의와 종류 ··························································································································· 61
[1] 범죄의 의의와 본질/ 61 [2] 범죄의 성립요건·처벌조건·소추조건/ 62
[3] 범죄의 종류/ 64
제2절 행위론 ······················································································································································ 70
[1] 서 설/ 70 [2] 행위론의 종류/ 70
제3절 범죄체계론 ············································································································································· 73
[1] 범죄체계론의 의의/ 73 [2] 범죄체계론의 종류/ 73
제4절 행위의 주체와 객체 ··························································································································· 74
[1] 행위의 주체/ 74 [2] 행위의 객체와 보호의 객체/ 80
제2장 구성요건론
제1절 구성요건의 일반이론 ························································································································· 81
[1] 구성요건의 의의/ 81 [2] 구성요건과 위법성의 관계/ 81
[3] 구성요건의 요소/ 82
제2절 결과반가치와 행위반가치 ················································································································ 84
[1] 결과반가치와 행위반가치/ 84 [2] 결과반가치론과 행위반가치론/ 84
[3] 결과반가치와 행위반가치의 내용/ 85
제3절 부작위범 ·················································································································································· 87
[1] 부작위/ 87 [2] 부작위범/ 88
[3] 부진정부작위범의 구성요건/ 91 [4] 관련문제/ 98
제4절 인과관계와 객관적 귀속 ················································································································ 100
[1] 서 설/ 100 [2] 인과관계에 관한 학설/ 101
[3] 객관적 귀속이론/ 108 [4] 형법 제17조의 해석/ 110
제5절 구성요건적 고의 ································································································································ 112
[1] 고의의 의의와 본질/ 112 [2] 고의의 체계적 지위/ 113
[3] 고의의 내용/ 114 [4] 고의의 종류/ 115
제6절 구성요건적 착오 ································································································································ 121
[1] 서 설/ 121 [2] 구성요건적 착오의 유형/ 123
[3] 구성요건적 착오에 관한 학설과 판례/ 124
[4] 가감적 구성요건요소에 대한 착오/ 127
[5] 인과관계의 착오와 개괄적 고의/ 129 [6] 관련문제/ 130
제7절 과실범 ···················································································································································· 131
[1] 서 설/ 131 [2] 과실범의 성립요건/ 134
[3] 객관적 주의의무의 제한원리/ 141 [4] 관련문제/ 148
제8절 결과적 가중범 ···································································································································· 149
[1] 서 설/ 149 [2] 결과적 가중범의 성립요건/ 152 [3] 관련문제/ 156
제3장 위법성론
제1절 위법성의 일반이론 ··························································································································· 159
[1] 위법성의 의의/ 159 [2] 위법성의 본질/ 160
[3] 위법성의 평가방법/ 160 [4] 위법성조각사유/ 162
제2절 정당방위 ················································································································································ 166
[1] 정당방위의 의의와 근거/ 166 [2] 정당방위의 성립요건/ 167
[3] 정당방위의 효과/ 176 [4] 과잉방위와 오상방위/ 177
제3절 긴급피난 ················································································································································ 181
[1] 서 설/ 181 [2] 긴급피난의 성립요건/ 182 [3] 긴급피난의 효과/ 187
[4] 과잉피난과 오상피난/ 188 [5] 의무의 충돌/ 188
제4절 자구행위 ················································································································································ 192
[1] 서 설/ 192 [2] 자구행위의 성립요건/ 193 [3] 자구행위의 효과/ 197
[4] 과잉자구행위와 오상자구행위/ 198
제5절 피해자의 승낙 ···································································································································· 200
[1] 양 해/ 200 [2] 피해자의 승낙/ 202 [3] 추정적 승낙/ 205
제6절 정당행위 ················································································································································ 209
[1] 정당행위의 의의와 근거/ 209 [2] 법령에 의한 행위/ 210
[3] 업무로 인한 행위/ 219 [4] 사회상규에 위배되지 않는 행위/ 223
제4장 책임론
제1절 책임의 일반이론 ································································································································ 234
[1] 책임과 책임주의/ 234 [2] 책임의 근거/ 235 [3] 책임의 본질/ 236
[4] 책임의 판단/ 238
제2절 책임능력 ················································································································································ 239
[1] 서 설/ 239 [2] 책임무능력자/ 240 [3] 한정책임능력자/ 245
[4] 원인에 있어서 자유로운 행위/ 247
제3절 위법성의 인식과 금지착오 ··········································································································· 252
[1] 위법성의 인식/ 252 [2] 금지착오/ 255
[3] 위법성조각사유의 전제사실에 대한 착오/ 267
제4절 기대가능성 ··········································································································································· 270
[1] 기대가능성이론/ 270 [2] 강요된 행위/ 274 [3] 초법규적 책임조각사유/ 278
제5장 미수론
제1절 미수범의 일반이론 ··························································································································· 281
[1] 범죄실현의 단계/ 281 [2] 미수범의 처벌근거/ 283
제2절 장애미수 ················································································································································ 287
[1] 장애미수의 의의/ 287 [2] 장애미수의 성립요건/ 288
[3] 장애미수의 처벌/ 292 [4] 관련문제/ 293
제3절 중지미수 ················································································································································ 294
[1] 중지미수의 의의와 성격/ 294 [2] 중지미수의 성립요건/ 295
[3] 중지미수의 처벌/ 300 [4] 관련문제/ 300
제4절 불능미수 ················································································································································ 303
[1] 서 설/ 303 [2] 불능미수의 성립요건/ 304
[3] 불능미수의 처벌 및 관련문제/ 308
제5절 예비죄 ···················································································································································· 310
[1] 예비죄의 의의/ 310 [2] 예비죄의 법적 성격/ 311
[3] 예비죄의 성립요건/ 312 [4] 관련문제/ 315
제6장 정범 및 공범론
제1절 정범·공범의 일반이론 ·················································································································· 318
[1] 서 설/ 318 [2] 정범과 공범의 구별/ 322 [3] 공범의 종속성과 처벌근거/ 325
제2절 간접정범 ················································································································································ 329
[1] 간접정범의 의의와 본질/ 329 [2] 간접정범의 성립요건/ 330
[3] 간접정범의 처벌/ 334 [4] 관련문제/ 334 [5] 특수교사·방조/ 337
제3절 공동정범 ················································································································································ 338
[1] 공동정범의 의의와 본질/ 338 [2] 공동정범의 성립요건/ 340
[3] 공동정범의 처벌/ 354 [4] 관련문제/ 355
제4절 교사범 ···················································································································································· 364
[1] 교사범의 의의와 본질/ 364 [2] 교사범의 성립요건/ 365
[3] 교사의 착오/ 369 [4] 교사범의 처벌/ 371 [5] 관련문제/ 372
제5절 종 범 ······················································································································································ 374
[1] 종범의 의의와 본질/ 374 [2] 종범의 성립요건/ 375 [3] 종범의 착오/ 381
[4] 종범의 처벌/ 383 [5] 관련문제/ 383
제6절 공범과 신분 ········································································································································· 385
[1] 서 설/ 385 [2] 형법 제33조의 해석론/ 387 [3] 소극적 신분과 공범/ 393
제7장 죄수론
제1절 죄수의 일반이론 ································································································································ 395
[1] 죄수론의 의의/ 395 [2] 죄수결정의 기준/ 395 [3] 수죄의 처벌/ 399
제2절 일 죄 ······················································································································································ 400
[1] 의 의/ 400 [2] 법조경합/ 400 [3] 포괄일죄/ 409
제3절 수 죄 ······················································································································································ 420
[1] 상상적 경합/ 420 [2] 실체적 경합/ 428
제3편 형 벌 론
제1절 형벌의 종류 ········································································································································· 441
[1] 형벌의 의의와 종류/ 441 [2] 사 형/ 442 [3] 자유형/ 443
[4] 재산형/ 444 [5] 명예형/ 454 [6] 형의 경중/ 455
제2절 형의 양정 ············································································································································· 457
[1] 형의 양정의 의의/ 457 [2] 형의 양정의 단계/ 457
[3] 형의 가중·감경·면제/ 458 [4] 양 형/ 465
[5] 판결선고 전 구금 및 판결의 공시/ 467
제3절 누 범 ······················································································································································ 470
[1] 누범가중의 의의/ 470 [2] 누범가중의 요건/ 471 [3] 누범의 효과/ 474
[4] 판결선고 후의 누범발각/ 476
제4절 집행유예·선고유예·가석방 ······································································································· 477
[1] 집행유예/ 477 [2] 선고유예/ 483 [3] 가석방/ 487
제5절 형의 시효·소멸·기간 ·················································································································· 491
[1] 형의 시효/ 491 [2] 형의 소멸·실효와 복권·사면/ 493 [3] 형의 기간/ 495
제6절 보안처분 ················································································································································ 497
[1] 보안처분의 일반이론/ 497 [2] 현행법상의 보안처분/ 499
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