2015 김중근 형법 필수 핵심정리

총론
PART 01 서론
CHAPTER 01 형법의 기본개념·······························································002
01 형법의 의의 ···································································································· 002
02 형법의 지위와 성격 ························································································· 002
03 형법의 기능 ···································································································· 002
04 형법의 보충성의 원칙 ······················································································ 002

CHAPTER 02 형법학파에 따른 범죄·형벌이론······················003
01 고전학파(구파)와 근대학파(신파) ······································································ 003
02 범죄이론 ········································································································· 004
03 형벌이론 ········································································································· 005

CHAPTER 03 죄형법정주의··························································006
01 죄형법정주의의 의의 및 법적 근거 ·································································· 006
Ⅰ 의의 ··············································································································· 006
Ⅱ 실정법적 근거 ································································································· 006
02 죄형법정주의의 연혁과 사상적 배경 ································································· 006
03 죄형법정주의의 내용 ······················································································· 006
Ⅰ 관습형법의 금지 ······························································································ 006
Ⅱ 명확성의 원칙 ································································································· 008
Ⅲ 소급효금지의 원칙 ··························································································· 008
Ⅳ 유추해석 금지의 원칙 ······················································································ 010
Ⅴ 적정성의 원칙 ································································································· 019

CHAPTER 04 형법의 적용범위····················································020
01 시간적 적용범위 ······························································································ 020
Ⅰ 행위시법주의의 원칙 ························································································ 021
Ⅱ 행위시법주의의 예외 : 재판시법주의 ································································ 021
Ⅲ 한시법과 추급효 ⇒ 동기설(판례) ······································································ 023
02 장소적 적용범위 ······························································································ 024
03 인적 적용범위 ································································································· 027



PART 02? 범죄론
CHAPTER 01 범죄의 기본개념··························030
01 범죄의 의의와 범죄의 체계 ·············································································· 030
Ⅰ 범죄의 체계 ···································································································· 030
Ⅱ 범죄체계론 ······································································································ 031

CHAPTER 02?? 구성요건··············································································034
01 소극적 구성요건표지이론(소극적 구성요건요소론) ············································· 034
02 형법상 불법의 개념과 의미 ·············································································· 035
Ⅰ 결과불법과 행위불법 ························································································ 035
Ⅱ 행위불법과 결과불법 내용 ················································································ 035
03 구성요건 일반 ································································································· 036
Ⅰ 기술적 구성요건·규범적 구성요건 ··································································· 036
Ⅱ 구성요건의 분류 ······························································································ 036
Ⅲ 구성요건의 유형 ······························································································ 037
04 객관적 구성요건요소 ······················································································· 040
Ⅰ 행위주체(법인의 범죄능력) ··············································································· 040
Ⅱ 행위객체와 보호법익 ························································································ 042
Ⅲ 인과관계와 객관적 귀속 ··················································································· 043
Ⅳ 객관적 귀속론 ································································································· 044
05 주관적 구성요건 ······························································································ 049
Ⅰ 고의의 의의 ···································································································· 049
Ⅱ 고의의 내용과 인식대상 ··················································································· 049
Ⅲ 개괄적 고의 ···································································································· 051
06 구성요건의 착오(사실의 착오) ·········································································· 052
Ⅰ 구성요건착오의 개념 ························································································ 052
Ⅱ 구성요건 착오의 해결 ······················································································ 052
Ⅲ 가감적 구성요건에 대한 착오 ··········································································· 053
Ⅳ 병발(竝發/倂發) 사례 ······················································································· 053
Ⅴ 고의 관련 판례 정리 ························································································ 054

CHAPTER 03?위법성········································055
01 위법성 일반론 ································································································· 055
Ⅰ 위법성의 본질·판단 ······················································································· 055
Ⅱ 주관적 위법성조각사유 ⇒ 주관적 정당화요소 ··················································· 056
02 정당방위 ········································································································· 057
Ⅰ 의의 ··············································································································· 057
Ⅱ 성립요건 ········································································································· 057
Ⅲ 과잉방위 ········································································································· 058
Ⅳ 관련판례 ········································································································· 058
03 긴급피난 ········································································································· 059
Ⅰ 긴급피난의 의의 및 법적성질 ··········································································· 059
Ⅱ 긴급피난의 성립요건 ························································································ 060
Ⅲ 긴급피난의 특칙 ······························································································ 060
Ⅳ 과잉피난 ········································································································· 060
Ⅴ 의무의 충돌 ···································································································· 061
Ⅵ 관련판례 ········································································································· 061
04 자구행위 ········································································································· 062
Ⅰ 자구행위의 의의 ······························································································ 062
Ⅱ 성립요건 ········································································································· 062
Ⅲ 과잉자구행위 및 오상자구행위 ········································································· 063
Ⅳ 관련판례 ········································································································· 063
05 피해자의 승낙 ································································································· 063
Ⅰ 양해 vs 승낙 구별 ··························································································· 063
Ⅱ 피해자의 승낙 ································································································· 064
Ⅳ 추정적 승낙 ···································································································· 065
Ⅴ 관련판례 ········································································································· 065
06 정당행위 ········································································································· 066
Ⅰ 의의 ··············································································································· 066
Ⅱ 법령에 의한 행위 ····························································································· 066
Ⅲ 업무로 인한 행위 ····························································································· 067
Ⅳ 관련판례 ········································································································· 067
Ⅴ 기타 사회상규에 위배되지 않는 행위 ································································ 068
Ⅵ 관련판례 ········································································································· 068

CHAPTER 04? 책임··································071
01 책임이론 ········································································································· 071
Ⅰ 책임의 의의와 책임주의 ··················································································· 071
Ⅱ 책임의 근거 ···································································································· 071
Ⅲ 책임의 본질 ···································································································· 072
02 책임능력 ········································································································· 073
Ⅰ 책임능력의 의의 및 규정방법 ··········································································· 073
Ⅱ 책임무능력자 ·································································································· 073
Ⅲ 한정책임능력자 ······························································································· 074
Ⅳ 원인에 있어서의 자유로운 행위 ········································································ 075
Ⅴ 관련판례 ⇒ 심신상실, 원인에 있어서의 자유로운 행위 ······································ 076
03 위법성의 인식 ································································································· 077
Ⅰ 의의 ··············································································································· 077
Ⅱ 위법성인식의 체계적 지위 ················································································ 077
04 법률의 착오(위법성의 착오) ············································································· 078
Ⅰ 의의 ··············································································································· 078
Ⅱ 형태 ··············································································································· 078
Ⅲ 형법 제16조의 해석 ························································································· 079
Ⅳ 관련판례 ········································································································· 079
05 책임조각사유(기대가능성) ················································································ 081
Ⅰ 형법상의 책임조각사유 ···················································································· 081
Ⅱ 관련판례 ········································································································· 081
Ⅲ 강요된 행위 ···································································································· 082

CHAPTER 05 미수범····························································083

01 미수범 총설 ···································································································· 083
Ⅰ 개관 ··············································································································· 083
Ⅱ 미수범 성립요건 ······························································································ 084
Ⅲ 미수범 처벌규정 없는 범죄 ··············································································· 085
02 예비와 음모 ···································································································· 086
Ⅰ 의의 ··············································································································· 086
Ⅱ 성립요건 ········································································································· 086
Ⅲ 처벌 ··············································································································· 086
Ⅳ 관련문제 ········································································································· 087
Ⅴ 예비·음모·선동·선전 처벌규정 ··································································· 087
03 장애미수 ········································································································· 088
Ⅰ 의의 ··············································································································· 088
Ⅱ 성립요건 ········································································································· 088
Ⅲ 처벌 ··············································································································· 089
Ⅳ 실행착수가 문제되는 특수 경우 ········································································ 090
Ⅴ 실행착수 관련된 판례 ······················································································ 090
04 중지미수 ········································································································· 092
Ⅰ 의의 ··············································································································· 092
Ⅱ 성립요건 ········································································································· 092
Ⅲ 처벌과 관련문제 ······························································································ 094
Ⅳ 관련판례 ········································································································· 094
05 불능미수 ········································································································· 095
Ⅰ 의의 ··············································································································· 095
Ⅱ 성립요건 ········································································································· 095
Ⅲ 처벌과 관련판례 ······························································································ 096

CHAPTER 06?? 범론·····················································098
01 공범의 일반이론 ······························································································ 098
Ⅰ 필요적 공범 ···································································································· 098
Ⅱ 합동범 ············································································································ 099
Ⅲ 동시범(병행범) ································································································ 099
Ⅳ 다수가 가담한 범죄형태 ··················································································· 101
Ⅴ 공범이론 ········································································································· 102
02 공동정범 ········································································································· 104
Ⅰ 의의 ··············································································································· 104
Ⅱ 요건 ··············································································································· 104
Ⅲ 공동정범의 처벌 ······························································································ 107
03 간접정범 ········································································································· 108
Ⅰ 의의와 본질 ···································································································· 108
Ⅱ 간접정범의 성립요건 ························································································ 108
Ⅲ 간접정범의 처벌 ······························································································ 110
Ⅳ 특수교사 방조 ································································································· 110
04 교사범 ············································································································ 110
Ⅰ 의의 ··············································································································· 110
Ⅱ 성립요건 ········································································································· 110
Ⅲ 처벌 ··············································································································· 111
Ⅳ 관련문제 ········································································································· 112
05 종범(방조범) ··································································································· 114
Ⅰ 의의 ··············································································································· 114
Ⅱ 성립요건 ········································································································· 114
Ⅲ 처벌 ··············································································································· 115
Ⅳ 종범의 착오 ···································································································· 115
Ⅴ 관련판례 ········································································································· 115
06 공범과 신분 ···································································································· 116
Ⅰ 서설 ··············································································································· 116
Ⅱ 신분의 의의와 종류 ·························································································· 116
Ⅲ 형법 제33조의 해석론 ······················································································ 117
Ⅳ 소극적 신분과 공범문제 ··················································································· 117
Ⅴ 관련 사례 ········································································································ 118

CHAPTER 07? 부작위범···························································121
Ⅰ 서설 ··············································································································· 121
Ⅱ 부작위범의 종류 ······························································································ 121
Ⅲ 부작위범의 성립요건 ························································································ 121
Ⅳ 부진정부작위범의 처벌 및 관련문제 ·································································· 124
Ⅴ 관련판례 ········································································································· 125

CHAPTER 08 과실범···························································127
01 과실범 일반론 ································································································· 127
Ⅰ 과실범의 개념 ································································································· 127
Ⅱ 과실의 유형 ···································································································· 127
02 과실범의 성립요건 ··························································································· 128
Ⅰ 구성요건 ········································································································· 128
Ⅱ 관련문제 ········································································································· 128
Ⅲ 관련판례 ········································································································· 129

?CHAPTER 09? 결과적 가중범·········································132
Ⅰ 의의 ··············································································································· 132
Ⅱ 진정결과적 vs 부진정결과적 가중범 ································································· 132
Ⅲ 성립요건 ········································································································· 132
Ⅳ 결과적 가중범의 공동정범 ················································································ 133
Ⅴ 결과적 가중범의 미수 ······················································································ 133
Ⅵ 관련판례 ········································································································· 134



PART 03 죄수론
CHAPTER 10 죄수론의 일반이론······························138
Ⅰ 죄수결정의 기준 ······························································································ 138
CHAPTER 11 일죄···············································139
01 법조경합 ········································································································· 139
Ⅰ 의의 ··············································································································· 139
Ⅱ 유형 ··············································································································· 139
02 포괄일죄 ········································································································· 141
Ⅰ 의의 ··············································································································· 141
Ⅱ 포괄일죄의 유형 ······························································································ 141
Ⅲ 포괄일죄 관련판례 ··························································································· 143

CHAPTER 12수죄(경합론) ·············································144
01 상상적 경합 ···································································································· 144
Ⅰ 의의 ··············································································································· 144
Ⅱ 요건 ··············································································································· 144
Ⅲ 관련문제 ········································································································· 144
Ⅳ 상상적 경합의 법적효과 ··················································································· 145
Ⅴ 상상적경합 관련판례 ························································································ 146
02 경합범 ············································································································ 148
Ⅰ 의의 ··············································································································· 148
Ⅱ 성립요건 ········································································································· 148
Ⅲ 효과 ··············································································································· 148
Ⅴ 실체적경합 관련판례 ························································································ 149

PART 04 형벌론
CHAPTER 01 형벌의 의의와 종류··········································154
Ⅰ 형벌의 종류 ···································································································· 154
Ⅱ 사형 ··············································································································· 154
Ⅲ 자유형 ············································································································ 154
Ⅳ 재산형 ············································································································ 155

CHAPTER 02 형의 양정························································159
Ⅰ 형의 양정의 의의 ····························································································· 159
Ⅱ 형의 가중 감면 사유 ························································································ 159
Ⅲ 형의 가감례 ···································································································· 160
Ⅳ 형의 면제 ········································································································ 161

CHAPTER 03 누범···························································163
Ⅰ 의의 ··············································································································· 163
Ⅱ 누범가중의 요건 ······························································································ 163
Ⅲ 누범가중 관련판례 ··························································································· 164

CHAPTER 04 선고유예·집행유예·가석방·····································165
01 선고유예 ········································································································· 165
Ⅰ 요건 ··············································································································· 165
Ⅱ 보호관찰명령 ·································································································· 165
Ⅲ 효과 ··············································································································· 165
Ⅳ 선고유예 관련판례 ··························································································· 166
02 집행유예 ········································································································· 167
Ⅰ 요건 ··············································································································· 167
Ⅱ 사례1 ············································································································· 167
Ⅲ 사례2 ············································································································· 168
Ⅳ 효과와 실효요건 ······························································································ 168
Ⅴ 집행유예 관련판례 ··························································································· 169
03 가석방 ············································································································ 170
Ⅰ 요건 ·············································································································· 170
Ⅱ 가석방 기간 ···································································································· 170
Ⅲ 효과 ·············································································································· 170
04 선고유예·집행유예·가석방 요약 ··································································· 171
05 형의 시효와 소멸 ····························································································· 172
Ⅰ 형의 시효의 기간 ····························································································· 172
Ⅱ 정지와 중단 ···································································································· 172
Ⅲ 형의 소멸 ········································································································ 173