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2023 형법 사례형 판례정리
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2023 형법 사례형 판례정리 주관식 시험 대비

  • 신호진
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  • 문형사
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  • 2022-04-29 출간
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  • 537페이지
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  • 188 X 257 mm
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  • ISBN 9791166870699
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출판사서평

서 문

 

2023년 대비 ‘형법 사례형 판례정리’에 대해서

 

“사례형 판례정리”는 변호사시험 사례형 문제를 대비하여 단기간에 효율적으로 중요논점을 정리할 수 있도록 만들어진 교재이다.

 

1. 사례문제의 기초가 되는 중요판례 총정리

 

변호사시험 사례형 문제를 분석해 보면 특정의 판례를 기초로 해서 사안을 각색하거나 변형해서 만들어진 것들이 대부분이다. 그러므로 다양하게 변형된 사례문제에 잘 대처하기 위해서는 원래의 판례사안을 정확하게 파악하고 있어야만 한다. 그래서 본서에서는 2012~2022년의 변호사시험과 2001~2017년의 사법시험, 그리고 2011~ 2021년의 5급공채시험, 그리고 최근의 법학전문대학원 모의시험에서 출제되었던 사례문제를 분석하여 출제의 기초가 되었던 원래의 판례사안을 정확하게 소개하고 그와 관련된 논점에 대한 해설을 모범답안 형태로 구성하였다. 또한 최신 중요판례를 사례문제형태로 정리하여 수록함으로써 미기출 판례에도 적절하게 대비할 수 있도록 하였다.

 

2. 채점기준표에 의거한 모범답안식 해설

 

답안지에 무엇을 어느 정도로 써야 할 것인가는 결국 채점기준표에 의해서 결정된다. 그래서 본서에서는 사례형 문제에 대한 변호사시험 채점기준표를 참고하여 모범답안 형태의 해설을 함으로써 출제자가 요구하는 것이 어느 정도인가를 정확하게 알 수 있도록 하였다. 다만 동일한 논점일지라도 문제의 형태 및 배점에 따라 서술의 정도가 달라지는 것에 융통성 있게 대처할 수 있도록 하기 위해서 내용은 비교적 상세하게 서술하였다.

 

3. 관련판례 수록 및 기출사례 해설

 

출제의 기초가 되었던 판례의 사실관계를 기초로 모범답안식 해설을 한 후에는 그 판례의 판결요지 및 관련 중요판례를 수록하였고, 다시 해당 판례를 기초로 한 기출 사례문제를 소개하고 해설하였다. 특히 후자를 활용하여 연습용 답안지에 기출문제의 형태 및 배점에 따른 답안구성 방법과 서술분량을 조절하는 훈련을 해 본다면 사례형 문제의 답안작성에 대해서 상당한 자신감을 갖게 될 것이다.

 

본서의 효율적 활용으로 법조인의 꿈을 조속히 실현하기를 바라면서…

 

2022년 4월 20일

법학박사 신 호 진

목차


---형법총론---
1. 양벌규정의 특수기능 및 판례의 변경과 소급효금지의 원칙 ····································· 3
2. 유추해석금지의 원칙 ·························································································· 7
3. 법인의 범죄능력 ································································································ 9
4. 작위와 부작위의 구별 ······················································································· 14
5. 보증인지위의 발생근거 및 미필적 고의 ······························································· 18
6. 작위의무에 대한 착오 ······················································································· 22
7. 인과관계와 객관적 귀속 ···················································································· 25
8. 합법적 대체행위이론 ························································································ 31
9. 구성요건적 착오 ······························································································ 33
10. 개괄적 고의와 불능미수 ·················································································· 36
11. 신뢰의 원칙과 그 적용한계 ············································································· 42
12. 부진정결과적 가중범과 직접성의 원칙 ······························································ 46
13. 개괄적 과실과 직접성의 원칙 ·········································································· 53
14. 결과적 가중범의 공동정범 ··············································································· 57
15. 결과적 가중범의 미수 ····················································································· 59
16. 주관적 정당화요소를 결여한 경우 ···································································· 62
17. 지속적 위험에 대한 정당방위 ·········································································· 64
18. 긴급피난과 과잉피난의 성립요건 ······································································ 68
19. 환자의 자기결정권과 의사의 의무 ···································································· 70
20. 교사의 체벌과 정당행위 ·················································································· 74
21. 원인에 있어서 자유로운 행위 ·········································································· 77
22. 금지착오와 정당한 이유 ·················································································· 81
23. 위법성조각사유의 전제사실에 대한 착오 ··························································· 85
24. 위법성조각사유의 전제사실에 대한 착오와 공범 ················································· 88
25. 강요된 행위 ·································································································· 95
26. 실행의 착수시기 ···························································································· 98
27. 중지미수와 자의성의 판단기준 ······································································· 100
28. 불능미수에 대한 중지미수 ············································································· 104
29. 공범과 중지미수 ··························································································· 107
30. 불능미수와 위험성의 판단기준 ······································································· 111
31. 예비의 중지 및 예비죄의 종범 ······································································· 114
32. 예비죄의 성립요건 ························································································ 117
33. 필요적 공범과 총칙상의 공범규정의 적용여부 ·················································· 120
34. 간접정범의 성립요건 ····················································································· 122
35. 정범 배후의 정범이론 ··················································································· 126
36. 간접정범과 착오 ··························································································· 128
37. 승계적 공동정범 ··························································································· 130
38. 공동정범과 공동의 실행행위 ·········································································· 134
39. 공모관계의 이탈과 공모공동정범 ···································································· 136
40. 상해치사죄의 동시범 ····················································································· 141
41. 합동범의 공동정범 ························································································ 144
42. 교사범과 공범관계로부터의 이탈 ···································································· 149
43. 교사의 착오 ································································································· 152
44. 부작위에 의한 종범 ······················································································ 157
45. 목적과 신분 ································································································· 160
46. 진정신분범의 간접정범과 공범 ······································································· 163
47. 부진정신분범과 공범 ····················································································· 166
48. 불구성적 신분과 공범 ··················································································· 170
49. 교통사고 관련범죄의 죄수관계 ······································································· 172
50. 불가벌적 사후행위 ························································································ 175
51. ‘범죄행위에 제공한 물건’의 의미 ···································································· 179
52. 집행유예와 선고유예의 결격사유 ···································································· 183

---형법각론---
1. 사람의 시기(始期) ·························································································· 189
2. 상해의 개념 ·································································································· 192
3. 폭행 및 위험한 물건 휴대의 의미 ···································································· 194
4. 유기죄의 보호의무 ························································································· 197
5. 협박죄의 객체 및 기수시기 ············································································· 202
6. 강요죄의 고의 ······························································································· 207
7. 영리목적약취·유인죄와 인질강도죄 ··································································· 209
8. 주거침입죄와 강간죄의 관계 ············································································ 212
9. 강제추행죄에서 추행의 의미 ············································································ 214
10. 준강간죄의 불능미수 ····················································································· 217
11. 위계에 의한 간음죄 ······················································································ 220
12. 제310조와 진실성에 대한 착오 ······································································ 222
13. 출판물에 의한 명예훼손죄의 간접정범 ···························································· 226
14. 업무방해죄의 업무와 공무 ············································································· 230
15. 업무방해죄와 명예훼손죄의 관계 ···································································· 234
16. 컴퓨터 업무방해죄 ························································································ 236
17. 공동주거와 주거침입죄 ·················································································· 238
18. 주거침입죄의 객체와 피해자의 동의 ································································ 243
19. 주거침입죄의 기수시기 ·················································································· 245
20. 형법상 재물의 개념 ······················································································ 248
21. 금제품의 재물성 ··························································································· 252
22. 형법상 점유의 요건 ······················································································ 255
23. 유류물·분실물에 대한 점유 ············································································ 257
24. 사자의 점유 및 사자 명의의 문서위조 ···························································· 260
25. 사자의 점유와 불법영득의 의사 ······································································ 265
26. 불법영득의사의 대상 ····················································································· 268
27. 불법영득의사에서 불법의 의미 ······································································· 273
28. 절도와 사용절도의 구별 ················································································ 276
29. 절취와 사취의 구별 ······················································································ 280
30. 야간주거침입절도죄에서 ‘야간’의 적용범위 ······················································ 283
31. 절도죄와 주거침입죄의 관계 ·········································································· 285
32. 합동절도죄 성립의 시간적 한계 ······································································ 288
33. 절도와 강도의 구별 ······················································································ 290
34. 야간주거침입 특수강도죄의 실행의 착수시기 ··················································· 294
35. 준강도죄와 절도의 기회 ················································································ 298
36. 준강도죄의 기수와 미수의 판단기준 ································································ 301
37. 준강도죄의 공동정범(1) ················································································· 303
38. 준강도죄의 공동정범(2) ················································································· 308
39. 특수강도의 준강도의 판단기준 ······································································· 313
40. 강도강간죄의 주체 ························································································ 315
41. 잔금사기와 고지의무 ····················································································· 319
42. 사기죄에서 기망행위의 정도 ·········································································· 321
43. 사기죄와 처분행위 ························································································ 324
44. 사기죄와 처분의사 ························································································ 327
45. 사자임을 모르고 소송을 제기한 경우 ······························································ 333
46. 사자임을 알고 소송을 제기한 경우 ································································· 335
47. 사기죄와 횡령죄의 관계 ················································································ 338
48. 컴퓨터사용사기죄의 객체 ··············································································· 341
49. 신용카드 관련범죄 ························································································ 345
50. 신용카드의 부정발급과 부정사용 ···································································· 348
51. 강취·갈취한 현금카드에 의한 예금인출 ··························································· 352
52. 공갈죄의 객체 ······························································································ 356
53. 권리행사와 공갈죄 ························································································ 358
54. 공갈죄와 수뢰죄의 관계 ················································································ 362
55. 횡령죄의 주체 ······························································································ 365
56. 횡령죄의 주체와 객체 ··················································································· 369
57. 불법원인급여와 횡령죄 ·················································································· 374
58. 3자간 명의신탁과 횡령죄 ·············································································· 379
59. 리베이트 수수행위의 형사책임 ······································································· 383
60. 횡령죄의 기수시기 ························································································ 385
61. 예산전용과 불법영득의사 ··············································································· 388
62. 횡령행위의 상대방의 형사책임 ······································································· 391
63. 저당권을 설정한 채무자의 담보물 처분행위 ····················································· 395
64. 동산 양도담보와 배임죄의 주체 ······································································ 399
65. 대표권 남용행위와 배임죄의 기수시기 ···························································· 401
66. 부동산 이중매매의 형사책임 ·········································································· 406
67. 배임수재죄에서 신분의 존재시기 ···································································· 413
68. 배임수재죄와 부정한 청탁 ············································································· 416
69. 배임수재죄에서 이익 취득의 주체 ··································································· 418
70. 장물의 동일성 ······························································································ 420
71. 장물취득죄에서 ‘취득’의 의미 ········································································ 425
72. 강제집행면탈죄에서 채권자를 해할 위험성 ······················································ 428
73. 방화죄의 기수시기 ························································································ 431
74. 이미지 파일의 문서성 ··················································································· 434
75. 문서와 명의인의 실재성 ················································································ 438
76. 문서의 복사행위와 위조 ················································································ 440
77. 사전자기록위작죄에서 ‘위작’의 의미 ······························································· 443
78. 허위공문서작성죄의 간접정범 ········································································· 445
79. 허위진단서작성죄와 허위공문서작성죄의 관계 ·················································· 450
80. 공문서부정행사죄에서 ‘부정행사’의 의미 ························································· 455
81. 공문서부정행사죄의 객체 ··············································································· 460
82. 편면적 도박 ································································································· 463
83. 경기의 도박성 ······························································································ 466
84. 직무유기죄와 허위공문서작성죄의 관계 ··························································· 468
85. 뇌물과 직무관련성 ························································································ 473
86. 뇌물의 몰수와 추징 ······················································································ 477
87. 뇌물수수죄와 제3자뇌물공여죄의 구별 ···························································· 480
88. 수뢰죄와 사기죄의 관계 ················································································ 485
89. 증뢰물전달죄의 기수시기 ··············································································· 488
90. 공무집행방해죄와 직무집행의 적법성 ······························································ 492
91. 직무집행의 적법성에 대한 착오 ······································································ 495
92. 위계에 의한 공무집행방해죄와 직무유기죄의 관계 ············································ 497
93. 범인도피죄의 주체와 객체 ············································································· 501
94. 범인도피죄에서 ‘죄를 범한 자’의 의미 ···························································· 505
95. 자기도피와 범인도피죄의 공범 ······································································· 509
96. 증언거부권의 불고지와 위증죄 ······································································· 514
97. 위증죄에서 ‘허위’의 판단기준 ········································································ 517
98. 공범자의 형사사건에 관한 증거와 증거인멸죄 ·················································· 519
99. 불법영득의사 및 증거인멸죄의 객체 ································································ 522
100. 자기사건에 관한 증거인멸의 교사 ································································· 525
101. 공소시효의 완성과 무고죄 ··········································································· 529
102. 자기무고의 공범 ························································································· 532
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