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[2017년 개정판 머리말]
2017년 개정판을 작업하는 과정에서 저자의 신상에 큰 변화가 있었다. 한림법학원에서의 강의계약이 종료되어 2017년 3월 이후의 변시 정규강좌부터는 새로이 강의계약을 체결한 합격의 법학원에서 진행하게 되었다. 강의하는 학원이 달라졌지만 수험생들을 위하여 이전과 마찬가지로 항상 최선을 다하여 교재를 만들고 성실하게 강의에 임한다는 마음은 변하지 않도록 늘 경계할 것을 다짐한다.
2017년 개정판은 전년도 판 이후에 새로 나온 중요판례를 모두 선별 수록하였으며 특히 2016년 1월, 5월, 12월의 형법 개정내용과 2016년 1월의 폭처법 및 특가법 개정내용을 모두 반영하였다. 또한 형법 및 특별형법 개정에 따라 사실상 폐기된 판례를 모두 삭제하였으며 개정법에 의하더라도 법리상 문제가 없는 판례는 개정법에 맞게 그 내용을 수정변경하고 별도의 해설을 붙여 두었다. 그리고 전년도판이 일찍 출간되어 반영하지 못했던 2016년 변시 기출표시와 2017년 변시 기출표시를 모두 반영하였다.
변호사시험의 합격이 해가 갈수록 어려워지고 있다. 로스쿨에 합격한 후 학기가 시작되기도 전에 형법강좌 등 법학과목의 강의를 수강하는 수강생 수가 점증하고 있음이 이를 입증하고 있다. ‘신체계 팝(FOB) 형법’ 교재가 변호사시험을 공부하는 수험생들에게 빠른 합격의 길잡이가 될 것을 기원한다.
신체계 팝(FOB) 형법 소개
변호사시험의 형법 강좌에서 저자의 강좌를 수강하는 수강생이 절대다수임은 누구도 부인할 수 없을 것이다. 이러한 성원은 “저자의 강의”와 “신체계 팝(FOB) 형법” 교재에 대한 수험생들의 신뢰에 기초하고 있다고 생각된다.
변호사시험에 도전하는 하는 수험생의 경우 수많은 과목, 다양한 형식 - 선택형, 사례형, 심지어 기록형까지 - 의 시험에 대비하기에는 공부시간이 턱없이 부족하다. ‘신체계 팝(FOB) 형법’은 이러한 변시 수험생의 어려움을 고려하여 시간적 효율성과 효과의 극대화를 목표로 집필된 교재이다. 저자는 ‘수험서는 효율이 생명이다’라는 명제를 교재집필 과정에서 최고의 가치로 삼고 있다.
시험은 절대 100점을 목표로 하여서는 아니되며 그럴 필요도 없다. 합격할 만큼이면 충분한 것이다. 오히려 효율적인 교재로 공부한 수험생이 출제가능성을 고려하지 않고 모든 것을 망라적으로 포함하고 있는 교재로 공부한 수험생보다 훨씬 높은 점수를 얻을 것이다.
저자는 이러한 점을 십분 고려하여 출제가능성이 없는 논문 수준의 형법이론은 교재에 아예 싣지 않았으며, 판례도 그 내용을 일일이 살펴 판례의 본지를 희석시키지 않는 범위 내에서 형법시험과는 무관한 내용은 부분적으로 삭제하거나 판례의 취지를 요약 정리하는 방식으로 독자들이 “시험에 필요한” 내용만을 읽을 수 있도록 교재를 집필 하였다.
또한 수험생이 잊지 말아야 할 것은 무턱대고 얇은 교재라고 하여 그것이 곧 효율적인 교재가 아니라는 점이다. 90점대의 점수가 가능할 정도로 충실한 내용이 효율적으로 정리되어 있어야 그것이 효율적인 교재인 것이다. ‘신체계 팝(FOB) 형법’은 이미 앞서의 시험에서 진정한 의미에서의 ‘효율성’이 충분히 입증된 바 있다.
신체계 팝(FOB) 형법의 의미
First : 최초의 완벽한 선택형+사례형 대비 통합 기본서
Only : 유일한 출제가능한 판례 총정리 기본서
B est : 최고의 효율적 체계적 기본서
신체계 팝(FOB) 형법의 특징
1. 변호사시험이 판례를 중심으로 출제되는 것을 고려하여 출제가능한 판례를 빠짐없이 정리하였다.
2. 사례형으로 출제될 수 있는 중요쟁점을 ‘판례’를 중심으로 결론을 짓는 것으로 정리하였다.
3. 선택형으로 출제될 수 있는 핵심적인 ‘형법이론’ 부분을 일목요연한게 도표로 요약정리하였다.
4. 2017년도까지의 변시와 기존의 사시에 출제된 판례와 이론 부분에 대하여 기출표시를 부가하였다.
5. 2017년 2월 4일자 대법원 판례까지 모두 정리하였다.
2018년 변호사시험대비 판례공부 방법
본서를 가진 수험생의 경우 본서와 최근 3개년 형법 판례집이나 2017년 상하반기 형법판례집(12월
초 출간예정)에 실린 판례를 공부하면 충분하다.
개정판 발간과 추록 발간 안내
2017년판 “신체계 팝형법”을 구입한 독자들의 편의를 위하여 차년도 개정판 발간시 추록집을 발간할 예정입니다. 교재의 개정에 따라 교재에 가필하는 등 공들인 기존교재를 변경해야하는 불편함이 없이 최소 2년 이상 교재를 사용할 수 있을 것입니다. |
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총 론
제1편 서 론
제1장 형법의 기본개념
제1절 형법의 의의와 성격······························································································· 5
. 형법의 의의 / 5 . 형법의 성격 / 5
. 형법의 기능 / 6 . 위험형법 / 6
제2절 죄형법정주의··········································································································· 7
. 죄형법정주의의 의의 / 7 . 죄형법정주의의 내용 / 7
제2장 형법의 적용범위와 형법이론
제1절 형법의 적용범위··································································································· 34
. 시간적 적용범위 / 34 . 장소적 적용범위 / 45
. 인적 적용범위 / 50
제2절 형법이론················································································································· 52
. 법죄이론 / 52 . 형벌이론 / 52
. 형법학파의 대립 / 54
제2편 범죄론
제1장 범죄의 기본개념
제1절 범죄의 의의와 종류····························································································· 57
. 범죄의 의의 / 57 . 범죄의 성립요건·처벌조건·소추조건 / 57
. 범죄의 종류 / 60
제2절 행위론····················································································································· 65
. 의 의 / 65 . 행위론의 내용 / 65
. 형법상 행위의 최소한의 요건 / 65
제3절 범죄체계론············································································································· 66
제4절 행위의 주체와 객체····························································································· 67
. 행위의 주체 / 67
. 행위의 객체와 보호의 객체 / 72
제2장 구성요건
제1절 구성요건이론········································································································· 73
. 구성요건의 의의 / 73 . 구성요건과 위법성과의 관계 / 73
. 구성요건의 유형 / 74 . 구성요건의 요소 / 75
제2절 결과반가치와 행위반가치··················································································· 77
. 결과반가치론과 행위반가치론 / 77
. 결과반가치와 행위반가치의 내용 / 77
제3절 부작위범················································································································· 78
. 부작위의 본질 / 78 . 부작위범의 구조 / 80
. 부진정부작위범의 특유한 구성요건 / 82 . 관련문제 / 94
제4절 인과관계와 객관적 귀속····················································································· 97
. 서 론 / 97 . 인과관계의 유형 / 97
. 인과관계 판단에 관한 학설 / 98 . 객관적 귀속이론 / 105
제5절 구성요건적 고의································································································· 109
. 서 론 / 109 . 고의의 내용 / 110
. 고의의 종류 / 111
제6절 구성요건적 착오································································································· 115
. 서 론 / 115
. 구성요건적 착오의 의의와 해결 / 115
. 제15조 제1항의 규율 밖에 있는 착오사례의 해결 / 116
. 인과관계(과정)의 착오 / 123
제7절 과 실····················································································································· 126
. 서 론 / 126 . 과실범의 구성요건 / 130
. 객관적 주의의무의 제한원리 / 137 . 관련문제 / 144
제8절 결과적 가중범····································································································· 145
. 서 론 / 145 . 결과적 가중범의 종류 / 145
. 결과적 가중범의 성립요건 / 149 . 관련문제 / 153
제3장 위법성
제1절 위법성의 이론····································································································· 157
. 위법성의 의의 및 불법과의 구별 / 157 . 위법성의 본질 / 157
. 위법성 판단 기준/ 158 . 위법성조각사유(정당화사유) / 158
. 주관적 정당화요소 / 159
제2절 정당방위··············································································································· 161
. 정당방위의 의의 / 161 . 정당방위의 성립요건 / 161
. 과잉방위와 오상방위 / 172
제3절 긴급피난··············································································································· 176
. 긴급피난의 의의와 본질 / 176 . 긴급피난의 성립요건 / 176
. 긴급피난의 특칙 / 180 . 과잉피난과 오상피난 / 180
. 의무의 충돌 / 181
제4절 자구행위··············································································································· 182
. 자구행위의 의의 / 182 . 자구행위의 성립요건 / 182
. 과잉자구행위와 오상자구행위 / 185
제5절 피해자의 승낙····································································································· 186
. 서 론 / 186 . 양 해 / 187
. 피해자의 승낙 / 188 . 추정적 승낙 / 191
제6절 정당행위··············································································································· 193
. 의의 / 193 . 법령에 의한 행위 / 193
. 업무로 인한 행위 / 201 . 사회상규에 위배되지 않는 행위 / 204
제4장 책임론
제1절 책임이론··············································································································· 213
. 책임의 의의 / 213 . 책임의 근거 / 214
. 책임의 본질 / 214
제2절 책임능력··············································································································· 216
. 책임능력의 의의 / 216 . 책임무능력자 / 217
. 한정책임능력자 / 221 . 원인에 있어서 자유로운 행위 / 222
제3절 위법성의 인식····································································································· 226
. 위법성의 인식의 의의 /226 . 위법성의 인식의 체계적 지위 / 226
제4절 법률의 착오········································································································· 228
. 법률의 착오의 의의와 태양 / 228 . 형법 제16조와 정당한 이유 / 230
. 위법성조각사유의 전제사실의 착오 / 234
제5절 기대가능성··········································································································· 238
. 서 론 / 238 . 기대가능성의 체계적 지위 / 238
. 기대가능성의 판단기준 / 238 . 기대불가능성으로 인한 책임조각사유 / 240
. 강요된 행위 / 240
제5장 미수론
제1절 미수범의 일반이론····························································································· 243
제2절 장애미수··············································································································· 244
. 의 의 / 244 . 장애미수의 성립요건 / 244
. 장애미수의 처벌 / 249
제3절 중지미수··············································································································· 250
. 서 론 / 250 . 중지미수의 성립요건 / 250
. 중지미수의 처벌 / 256 . 관련문제 / 257
제4절 불능미수··············································································································· 259
. 서 론 / 259 . 불능미수의 성립요건 / 259
. 불능미수의 처벌 / 261 . 관련문제 / 264
제5절 예비죄··················································································································· 265
. 서 설 / 265 . 예비죄의 법적 성격 / 265
. 예비죄의 성립요건 / 266 . 관련문제 / 268
제6장 공범론
제1절 공범이론··············································································································· 271
. 서 설 / 271 . 정범과 공범의 구별 / 275
. 공범의 종속성과 처벌의 근거 / 277
제2절 간접정범··············································································································· 279
. 간접정범의 의의 / 279 . 간접정범의 성립요건 / 280
. 간접정범의 처벌 / 283 . 관련문제 / 283
. 특수교사·방조 / 285
제3절 공동정범··············································································································· 286
. 공동정범의 의의와 본질 / 286 . 공동정범의 성립요건 / 286
. 공동정범의 처벌 / 298 . 공동정범의 착오 / 299
. 동시범 / 299
제4절 교사범··················································································································· 303. 교사범의 의의 / 303 . 교사범의 성립요건 / 303
. 교사의 착오 / 307 . 교사범의 처벌 / 308
. 관련문제 / 309
제5절 종 범····················································································································· 311
. 종범의 의의 / 311 . 종범의 성립요건 / 311
. 종범의 착오 / 315 . 종범의 처벌 / 316
. 관련문제 / 316
제6절 공범과 신분········································································································· 318
. 공범과 신분의 의의 / 318 . 신분범의 의의와 종류 / 318
. 형법 제33조의 해석론 / 319 . 소극적 신분과 공범 / 324
제7장 죄수론
제1절 죄수이론··············································································································· 326
. 죄수론의 의의 / 326 . 죄수결정의 기준 / 326
제2절 일 죄····················································································································· 327
. 서 론 / 327 . 법조경합 / 327
. 포괄일죄 / 335
제3절 수 죄····················································································································· 346
. 상상적 경합 / 346 . 실체적 경합 / 353
제3편 형벌론
제1장 형 벌
제1절 형벌의 종류········································································································· 367
. 형벌의 종류 / 367 . 사 형 / 367
. 자유형 / 367 . 재산형 / 368
. 명예형 / 377 . 형의 경중 / 377
제2절 형의 양정············································································································· 378
. 의 의 / 378 . 형의 양정의 단계 / 378
. 형의 가중·감경·면제 / 378 . 양 형 / 384
. 판결선고전 구금일수의 산입 및 판결의 공시 / 384
제3절 누 범····················································································································· 387
. 서 론 / 387 . 누범가중의 요건 / 388
. 누범의 효과 / 390 . 판결선고후의 누범발각 / 390
제4절 집행유예·선고유예·가석방············································································ 391
. 집행유예 / 391 . 선고유예 / 396
. 가석방 / 399
제5절 형의 시효·소멸·기간······················································································ 402
. 형의 시효, 정지, 중단 / 402 . 형의 소멸 등 / 403
. 형의 기간 / 403
제2장 보안처분································································································································ 404
각 론
제1편 개인적 법익에 관한 죄
제1장 생명과 신체에 대한 죄
제1절 살인의 죄············································································································· 409
. 총 설 / 409 . 보통살인죄 / 409
. 존속살해죄 / 411 . 영아살해죄 / 413
. 촉탁·승낙살인죄 / 414 . 자살교사·방조죄 / 414
. 위계·위력에 의한 살인죄 / 416 . 살인예비·음모죄 / 416
제2절 상해와 폭행의 죄······························································································· 417
. 총 설 / 417 . 상해죄 / 417
. 존속상해죄 / 420 . 중상해죄 / 420
. 폭행죄 / 421 . 특수폭행죄 / 423
제3절 과실치사상의 죄································································································· 427
. 과실치상죄 / 427 . 과실치사죄 / 427
. 업무상과실·중과실치사상죄 / 428
제4절 낙태의 죄············································································································· 433
. 총 설 / 433 . 자기낙태죄 / 433
. 동의낙태죄 / 435 . 업무상동의낙태죄 / 435
. 부동의낙태죄 / 435 . 낙태치사상죄 / 435
제5절 유기와 학대의 죄······························································································· 436
. 유기죄 / 436 . 영아유기죄 / 439
. 학대죄 / 439 . 아동혹사죄 / 440
. 유기치사상죄 / 440
제2장 자유에 대한 죄
제1절 협박의 죄············································································································· 441
. 총 설 / 441 . 협박죄 / 441
. 특수협박죄 / 446
제2절 강요의 죄············································································································· 448
. 총 설 / 448 . 강요죄 / 448
. 인질강요죄 / 450
제3절 체포와 감금의 죄······························································································· 452
. 총 설 / 452 . 체포·감금죄 / 452
. 중체포·감금죄, 존속중체포·감금죄 / 454 . 체포·감금치사상죄 / 454
제4절 약취, 유인 및 인신매매의 죄·········································································· 455
. 총 설 / 455
. 미성년자 약취·유인죄 / 455
. 추행·간음·결혼·영리목적 약취·유인죄 / 458
. 인신매매죄 / 459
제5절 강간과 추행의 죄······························································································· 460
. 총 설 / 460 . 강간죄 / 460
. 유사강간죄 / 462 . 강제추행죄 / 462
. 준강간죄·준유사강간죄·준강제추행죄 / 464
. 미성년자의제강간·강제추행죄 / 465
. 강간 등 상해·치상죄 / 466 . 강간 등 살인·치사죄 / 468
. 미성년자·심신미약자 간음·추행죄 / 469 . 업무상위력 등에 위한 간음죄 / 470
. 피구금자간음죄 / 471 . 상습강간등죄 / 471
. 성범죄에 대한 특별형법 / 471
제3장 명예와 신용에 대한 죄
제1절 명예에 관한 죄··································································································· 477
. 총 설 / 477 . 명예훼손죄 / 479
. 사자의 명예훼손죄 / 492 . 출판물에 의한 명예훼손죄 / 493
. 모욕죄 / 497
제2절 신용·업무와 경매에 관한 죄·········································································· 499
. 신용훼손죄 / 499 . 업무방해죄 / 500
. 컴퓨터 업무방해죄 / 516 . 경매·입찰방해죄/ 518
제4장 사생활의 평온에 대한 죄
제1절 비밀침해의 죄····································································································· 522
. 비밀침해죄 / 522 . 업무상 비밀누설죄 / 522
제2절 주거침입의 죄····································································································· 523
. 총 설 / 523 . 주거침입죄 / 524
. 퇴거불응죄 / 532 . 특수주거침입죄 / 533
. 주거·신체수색죄 / 533
제5장 재산에 대한 죄
제1절 재산죄의 기본개념····························································································· 534
. 재산죄의 분류 / 534 . 재산죄의 객체 / 534
. 형법상의 점유 / 539 . 불법영득의사 / 545
. 친족상도례 / 552
제2절 절도의 죄············································································································· 556
. 총 설 / 556 . 절도죄 / 556
. 야간주거침입절도죄 / 563 . 특수절도죄 / 564
. 자동차 등 불법사용죄 / 568 . 상습절도죄 / 569
제3절 강도의 죄············································································································· 570
. 총 설 / 570 . 강도죄 / 570
. 특수강도죄 / 573 . 준강도죄·준특수강도죄 / 575
. 인질강도죄 / 581 . 강도상해·치상죄 / 581
. 강도살인·치사죄 / 584 . 강도강간죄 / 586
. 해상강도죄, 해상강도상해·치상·살인·치사·강간죄 / 586
. 강도예비·음모죄 / 587
제4절 사기의 죄············································································································· 588
. 총 설 / 588 . 사기죄 / 588
. 컴퓨터 등 사용사기죄 / 616 . 준사기죄 / 620
. 편의시설부정이용죄 / 620 . 부당이득죄 / 622
. 신용카드와 관련한 범죄 / 622
제5절 공갈의 죄············································································································· 626
. 공갈죄 / 626
제6절 횡령의 죄············································································································· 632
. 횡령죄 / 632 . 업무상횡령죄 / 662
. 점유이탈물횡령죄 / 663
제7절 배임의 죄············································································································· 664
. 총 설 / 664 . 배임죄 / 664
. 업무상배임죄 / 685 . 배임수재죄 / 687
. 배임증재죄 / 692
제8절 장물의 죄············································································································· 693
. 총 설 / 693 . 장물죄 / 693
제9절 손괴의 죄············································································································· 701
. 재물손괴죄 / 701 . 경계침범죄 / 704
제10절 권리행사를 방해하는 죄················································································· 705
. 권리행사방해죄 / 705 . 강제집행면탈죄 / 708
제2편 사회적 법익에 관한 죄
제1장 공공의 안전과 평온에 대한 죄
제1절 공안을 해하는 죄······························································································· 717
제2절 폭발물에 관한 죄······························································································· 717
제3절 방화와 실화의 죄······························································································· 717
. 총 설 / 717 . 현주건조물 등 방화죄 / 718
. 일반물건방화죄 / 719 . 연소죄 / 720
제2장 공공의 신용에 대한 죄
제1절 통화에 관한 죄··································································································· 721
. 총 설 / 721 . 내국통화 위조·변조죄 / 721
. 내국유통 외국통화 위조·변조죄 / 723 . 외국통용 외국통화 위조·변조죄 / 723
. 위조·변조통화 행사 등 죄 / 724
제2절 유가증권·인지와 우표에 관한 죄·································································· 725
. 총 설 / 725
. 유가증권 위조·변조죄 / 727
. 기재의 위조·변조죄 / 730
. 자격모용에 의한 유가증권작성죄 / 730
. 허위유가증권작성죄 / 731
. 위조 등 유가증권행사·수입·수출죄 / 732
제3절 문서에 관한 죄··································································································· 734
. 총 설 / 734 . 사문서위조·변조죄 / 738
. 자격모용에 의한 사문서작성죄 / 742 . 사전자기록 위작·변작죄 / 743
. 공문서 위조·변조죄 / 744 . 자격모용에 의한 공문서작성죄 / 747
. 공전자기록 위작·변작죄 / 747 . 허위진단서 등 작성죄 / 748
. 허위공문서작성죄 / 750 . 공정증서원본 등 부실기재죄 / 753
. 위조·변조·작성 사문서행사죄 / 759 . 위조·변조 등 공문서행사죄 / 761
. 사문서부정행사죄 / 761 . 공문서부정행사죄 / 762
제4절 인장에 관한 죄··································································································· 765
. 사인 등 위조·부정사용죄 / 765 . 위조사인 등 행사죄 / 765
제3장 사회의 도덕에 대한 죄
제1절 성풍속에 관한 죄······························································································· 767
. 음행매개죄 / 767
. 음화 등 반포·판매·임대·공연전시죄 / 767
. 공연음란죄 / 769
제2절 도박과 복표에 관한 죄····················································································· 770
. 도박죄 / 770 . 도박장소 등 개설죄 / 771
. 복표발매·중개·취득죄 / 772
제3절 신앙에 관한 죄··································································································· 773
. 장례식 등 방해 / 773 . 사체 등 손괴·유기·은닉·영득죄 / 773
. 변사체검시방해죄 / 774
제3편 국가적 법익에 관한 죄
제1장 국가의 존립과 권위에 대한 죄
제1절 내란의 죄············································································································· 777
제2절 외환의 죄············································································································· 781
. 간첩죄 / 781
제2장 국가의 기능에 대한 죄
제1절 공무원의 직무에 관한 죄················································································· 782
. 총 설 / 782 . 직무유기죄 / 782
. 피의사실공표죄 / 787 . 공무상 비밀누설죄 / 787
. 직권남용죄 / 788 . 뇌물죄의 일반이론 / 791
. 수뢰죄/ 797 . 사전수뢰죄 / 800
. 제3자 뇌물공여죄 / 801 . 수뢰후부정처사죄 / 802
. 부정처사후수뢰죄 / 803 . 사후수뢰죄/ 803
.알선수뢰죄 / 804 . 증뢰죄 / 805
제2절 공무방해에 관한 죄··························································································· 807
. 공무집행방해죄 / 807 . 위계에 의한 공무집행방해죄 / 811
. 공무상 봉인 등 표시무효죄 / 815 . 공용서류 등 무효죄 / 817
. 특수공무방해죄·특수공무방해치사상죄 / 818
제3절 도주와 범인은닉의 죄······················································································· 820
. 도주죄 / 820 . 범인은닉죄 / 820
제4절 위증과 증거인멸의 죄······················································································· 826
. 위증죄 / 826 . 증거인멸죄 / 830
. 증인은닉·도피죄 / 834 . 모해증거인멸죄 / 834
제5절 무고의 죄············································································································· 835
. 총 설 / 835 . 무고죄 / 835
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