김원욱 형법 2.1

제1부❙형법 총론

제1편 형법서론

제1장 ❙ 형법의 기본개념 / 18

제1절 형법의 의의와 종류 ······························18
Ⅰ 법률의 의의와 종류 ···································18
Ⅱ 형법의 의의와 종류 ···································18
Ⅲ 형법의 지위와 성격 ···································18

제2절 형법의 기능 ··········································19
Ⅰ 규제적 기능 ···············································19
Ⅱ 보호적 기능 ···············································19
Ⅲ 보장적 기능 ···············································19

제3절 형법의 발전 ·········································20
Ⅰ 법익 보호기능과 사회윤리적 행위가치
보호기능 ····················································21
Ⅱ 형벌이론 ····················································21
Ⅲ 형법학파의 비교 ········································22

제2장 ❙ 죄형법정주의 / 23

제1절 죄형법정주의의 개관 ···························23

제2절 죄형법정주의의 내용 ···························23
Ⅰ 법률주의(관습형법금지원칙, 포괄위임금지원칙)
·································································23
Ⅱ 명확성원칙 ················································26
Ⅲ 소급금지원칙(형벌불소급원칙) ····················31
Ⅳ 유추해석금지원칙 ·····································35
Ⅴ 적정성원칙 ················································52

제3장 ❙ 형법의 적용범위 / 54

제1절 형법의 시간적 적용범위 ······················54
Ⅰ 제1조 1항의 해석 ·······································54
Ⅱ 제1조 2항의 해석 ·······································55
Ⅲ 제1조 3항의 해석 ······································58
Ⅳ 제1조 2항·3항의 예외 ·······························58
Ⅴ 한시법과 백지형법 ····································59

제2절 형법의 장소적 적용범위 ······················67
Ⅰ 속지주의 ···················································67
Ⅱ 기국주의 ···················································67
Ⅲ 속인주의 ···················································68
Ⅳ 제5조의 보호주의 ·····································69
Ⅴ 제6조의 보호주의 ·····································69
Ⅵ 세계주의 ···················································70
Ⅶ 국가간 법률충돌의 해결 ·····························71

제3절 형법의 인적 적용범위 ··························72
Ⅰ 인적 적용범위의 원칙 ·······························72
Ⅱ 인적 적용범위의 예외 ·······························72

제4절 특별법과의 관계 ··································73

제2편 범죄론

제1장 ❙ 범죄론의 기초 / 76

제1절 행위요건·성립요건·처벌조건·소추조건
·····························································76
Ⅰ 행위요건 ···················································76
Ⅱ 성립요건 ···················································76
Ⅲ 처벌조건 ···················································76
Ⅳ 소추조건 ····················································77
 7급 이론 ····················································79

제2절 범죄의 의의와 종류 ·····························80
Ⅰ 범죄주체별 분류 ·······································80
Ⅱ 기수시기별 분류 ·······································80
Ⅲ 기수요건별 분류 ········································81
Ⅳ 종료시기별 분류 ········································81
Ⅴ 초과주관적 구성요건 ·································81

제3절 결과반가치와 행위반가치 ····················83
Ⅰ 불법의 의미 ··············································83
Ⅱ 불법의 내용 ··············································83

제2장 ❙ 구성요건론 / 84

제1절 구성요건의 일반이론 ···························84
Ⅰ 구성요건의 의의 ·······································84
Ⅱ 구성요건이론의 발전 ································84
Ⅲ 구성요건과 위법성의 관계 ························84
Ⅳ 소극적 구성요건표지이론 ·························84
Ⅴ 구성요건의 요소 ·······································85
 7급 이론 ····················································86

제2절 행위의 주체와 객체 ·····························88
Ⅰ 행위의 주체 ··············································88
Ⅱ 행위의 객체와 보호법익 ····························91
 7급 이론 ····················································92

제3절 부작위범 ··············································95
Ⅰ 부작위범과 작위범 ····································95
Ⅱ 진정부작위범과 부진정부작위범 ···············95
Ⅲ 부작위범의 요건 ·······································96
Ⅳ 법적 작위의무 ···········································97
Ⅴ 작위와 부작위의 적용 ·······························98
Ⅵ 관련문제 ··················································100
 7급 이론 ···················································101

제4절 인과관계와 객관적 귀속 ····················103
Ⅰ 인과관계의 의의 ······································103
Ⅱ 인과관계에 관한 학설 ······························103
Ⅲ 인과관계의 유형 ······································104
Ⅳ 인과관계의 입증 ······································106
 7급 이론 ····················································111

제5절 구성요건적 고의 ·································116
Ⅰ 고의의 개관 ··············································116
Ⅱ 고의의 인식대상 ·······································116
Ⅲ 고의의 종류 ··············································117
 7급 이론 ···················································124

제6절 구성요건적 착오 ·································126
Ⅰ 구성요건적 착오의 의의 ··························126
Ⅱ 구성요건적 착오의 종류 ··························126
Ⅲ 기타 협의의 착오의 종류 ·························127
Ⅳ 판례와 학설의 해결 ··································127
Ⅴ 사례의 해결 ·············································128
Ⅵ 병발사례 ··················································128
Ⅶ 개괄적 고의 과실 사례 ·····························129

제7절 과실범 ·················································131
Ⅰ 과실범의 개관 ··········································131
Ⅱ 과실범의 구성요건 ···································134
Ⅲ 관련문제 ··················································134
Ⅳ 신뢰의 원칙 ·············································143
 7급 이론 ···················································150

제8절 결과적 가중범 ····································152
Ⅰ 결과적 가중범의 의미 ······························152
Ⅱ 결과적 가중범의 종류 ······························152
Ⅲ 구성요건 ··················································153
Ⅳ 행위책임주의 ···········································153
Ⅴ 관련문제 ··················································156

제3장 ❙ 위법성론 / 159

제1절 위법성의 일반이론 ·····························159
Ⅰ 위법성과 불법 ··········································159
Ⅱ 위법성조각사유 ·······································159
Ⅲ 주관적 정당화의사 ···································159
 7급 이론 ···················································160

제2절 정당방위 ·············································163
Ⅰ 정당방위의 개념 ······································163
Ⅱ 성립요건 ··················································163
Ⅲ 정당방위의 효과 ······································168
Ⅳ 기타의 방위 ·············································168

제3절 긴급피난 ·············································170
Ⅰ 긴급피난의 개념 ······································170
Ⅱ 성립요건 ··················································170
Ⅲ 긴급피난의 효과 ·······································171
Ⅳ 기타의 피난 ·············································172
Ⅴ 의무의 충돌 ·············································172

제4절 자구행위 ·············································173
Ⅰ 자구행위의 개념 ······································173
Ⅱ 자구행위의 요건 ······································173
Ⅲ 자구행위의 효과 ······································174
Ⅳ 과잉자구행위와 야간과잉자구행위 ···········174

제5절 피해자의 승낙 ····································176
Ⅰ 피해자의 동의의 의미 ······························176
Ⅱ 피해자의 동의를 양해로 해석하는 경우 ··· 176
Ⅲ 피해자의 동의를 피해자의 승낙으로 해석하는
경우 ·························································177
Ⅳ 추정적 승낙 ·············································179

제6절 정당행위 ············································180
Ⅰ 법령에 의한 행위 ·····································180
Ⅱ 업무로 인한 행위 ·····································186
Ⅲ 기타 사회상규에 합치하는 행위 ···············188

제4장 ❙ 책임론 / 197

제1절 책임의 일반이론 ·································197
Ⅰ 책임주의 ··················································197
Ⅱ 책임의 근거 ·············································197
Ⅲ 책임의 본질 ·············································198
Ⅳ 범죄체계론 ··············································198
 7급 이론 ···················································199

제2절 책임능력 ············································203
Ⅰ 책임능력의 개념 ·····································203
Ⅱ 책임무능력자 ··········································203
Ⅲ 한정책임능력자 ·······································208
Ⅳ 원인에 있어서 자유로운 행위 ··················210

제3절 위법성의 인식과 금지착오 ·················212
Ⅰ 금지착오의 개념 ······································212
Ⅱ 금지착오의 유형 ······································212
Ⅲ 금지착오의 효과 ······································213
Ⅳ 위법성조각사유의 전제사실의 착오 ·········221
 7급 이론 ··················································223

제4절 기대가능성 ·········································227
Ⅰ 기대가능성의 판단기준 ···························227
Ⅱ 기대불가능성의 유형 ·······························228
Ⅲ 강요된 행위 ·············································229

제5장 ❙ 미수론 / 232

제1절 미수범의 일반이론 ·····························232
Ⅰ 범죄실현의 단계 ······································232
Ⅱ 미수범의 유형 ·········································232
Ⅲ 미수범의 처벌근거 ··································232

제2절 음모·예비죄 ·······································233
Ⅰ 선전․선동의 개념 ·····································233
Ⅱ 음모․예비의 개념 ·····································233
Ⅲ 음모예비의 법적성격 ·······························234
Ⅳ 관련문제 ·················································235

제3절 장애미수 ············································240
Ⅰ 개념 ························································240
Ⅱ 성립요건 ·················································240
Ⅲ 실행의 착수 ············································240
 7급 이론 ··················································246

제4절 중지미수 ············································247
Ⅰ 개념 ·························································247
Ⅱ 성립요건 ··················································247
Ⅲ 자의성 ·····················································247
Ⅳ 범행의 중지 또는 결과의 방지 ················250
Ⅴ 공범과 중지미수 ·····································250
Ⅵ 관련문제 ·················································252
 7급 이론 ··················································253

제5절 불능미수 ············································254
Ⅰ 개념 ························································254
Ⅱ 성립요건 ·················································254
Ⅲ 불능미수의 판단 ······································255
 7급 이론 ··················································258

제6장 ❙ 공범론 / 260

제1절 공범의 일반이론 ································260
Ⅰ 서설 ························································260
Ⅱ 필요적 공범 ············································260
Ⅲ 정범과 공범의 관계(다수설) ·····················263
Ⅳ 기도된 교사·방조 ····································264
 7급 이론 ··················································265

제2절 간접정범 ············································268
Ⅰ 정범과 공범의 구별 ·································268
Ⅱ 간접정범의 이용행위 ·······························270
Ⅲ 간접정범의 처벌 ·······································271
Ⅳ 간접정범과 착오 ······································272
Ⅴ 특수교사·방조 ·········································272
Ⅵ 각칙에 문제되는 간접정범 ·······················272
 7급 이론 ··················································274

제3절 공동정범 ············································276
Ⅰ 공동정범의 개념 ······································276
Ⅱ 주관적 요건 ·············································277
Ⅲ 객관적 요건 ············································284
Ⅳ 공동정범의 책임 ·····································289
Ⅴ 동시범 ·····················································290
Ⅵ 합동범 ·····················································292

제4절 교사범 ················································294
Ⅰ 개념 ························································294
Ⅱ 성립요건 ·················································294
Ⅲ 교사의 착오 ············································298
Ⅳ 관련문제 ·················································299

제5절 방조범 ···············································300
Ⅰ 총칙상 방조범의 개념 ·····························300
Ⅱ 성립요건 ·················································300
Ⅲ 방조의 착오 ············································304
Ⅳ 관련문제 ·················································304

제6절 공범과 신분 ·······································307
Ⅰ 형법상 신분 ·············································307
Ⅱ 적극적 신분(제33조의 해석) ·····················308
Ⅲ 소극적 신분 ··············································311
 7급 이론 ···················································312

제7장 ❙ 죄수론 / 316

제1절 죄수의 일반이론 ·································316
Ⅰ 죄수론의 의의 ··········································316
Ⅱ 죄수결정의 기준 ······································316

제2절 일죄 ····················································317
Ⅰ 법조경합 ··················································317
Ⅱ 포괄일죄 ··················································321

제3절 상상적 경합 ·······································328
Ⅰ 개념 ························································328
Ⅱ 요건 ························································328
Ⅲ 효과 ························································328

제4절 실체적 경합 ·······································333
Ⅰ 경합범의 개념 ·········································333
Ⅱ 실체법적 요건 ·········································333
Ⅲ 소송법적 요건 ·········································333
Ⅳ 경합범의 효과 ·········································335
 7급 이론 ··················································340

제3편 형벌론

.제1절 형벌의 종류 ·······································346
Ⅰ 형벌의 종류 ············································346
Ⅱ 사형 ························································346
Ⅲ 자유형 ·····················································346
Ⅳ 명예형 ·····················································347
Ⅴ 재산형 ·····················································347

제2절 형의 양정 ···········································356
Ⅰ 양형단계 ·················································356
Ⅱ 양형기준 ·················································356
Ⅲ 형의 가중 감경 면제 ·······························356
Ⅳ 미결구금 ·················································359
Ⅴ 판결의 공시 ············································360
Ⅵ 자수와 자복 ·············································361
Ⅶ 형사절차의 개관 ·····································363

제3절 누범 ···················································364
Ⅰ 서설 ························································364
Ⅱ 누범가중의 요건 ·····································365
Ⅲ 누범의 효과 ·············································367
Ⅳ 특가법상 누범 ·········································367

제4절 선고유예·집행유예·가석방 ···············369
Ⅰ 선고유예 ·················································369
Ⅱ 집행유예 ··················································371
Ⅲ 가석방 ·····················································375
 7급 이론 ··················································378

제5절 형의 시효·소멸·기간 ·························380
Ⅰ 형의 시효 ················································380
Ⅱ 형의 소멸 ·················································381
Ⅲ 사면·감형·복권 ·······································382
Ⅳ 형의 기간 ················································383

제6절 보안처분 ············································384
Ⅰ 서설 ························································384
Ⅱ 형벌과 보안처분의 관계 ··························384
Ⅲ 현행법상 보안처분 ··································384

제2부❙형법 각론

제1편 개인적 법익에 대한 죄

제1장 ❙ 생명과 신체에 대한 죄 / 390

제1절 살인의 죄 ··········································390
Ⅰ 서설 ························································390
Ⅱ 살인죄 ·····················································390
Ⅲ 존속살해죄 ··············································393
Ⅳ 영아살해죄 ··············································394
Ⅴ 기타범죄 ·················································395

제2절 상해와 폭행의 죄 ·······························397
Ⅰ 서설 ························································397
Ⅱ 상해죄와 폭행죄의 비교 ··························397
Ⅲ 상해죄 ·····················································398
Ⅳ 폭행죄 ·····················································403

제3절 과실치사상의 죄 ································410
Ⅰ 서설 ·························································410
Ⅱ 과실치사상죄 ···········································410

제4절 낙태의 죄 ···········································414
Ⅰ 서설 ·························································414
Ⅱ 낙태죄 ·····················································414

제5절 유기와 학대의 죄 ·······························416
Ⅰ 서설 ·························································416
Ⅱ 유기죄 ·····················································416
Ⅲ 기타 범죄 ·················································418

제2장 ❙ 자유에 대한 죄 / 421

제1절 협박의 죄 ···········································421
Ⅰ 서설 ·························································421
Ⅱ 협박죄 ······················································421
Ⅲ 기타 범죄 ················································427

제2절 강요의 죄 ···········································428
Ⅰ 서설 ························································428
Ⅱ 강요죄 ·····················································428
Ⅲ 기타 범죄 ················································430
제3절 체포와 감금의 죄 ·······························432
Ⅰ 서설 ························································432
Ⅱ 체포·감금죄 ············································432
Ⅲ 기타 범죄 ················································435

제4절 약취와 유인의 죄 ·······························437
Ⅰ 서설 ························································437
Ⅱ 조문의 분석 - 2013년 개정 ·····················437
Ⅲ 미성년자 약취·유인죄 ·····························438
Ⅳ 기타 범죄 ·················································441

제5절 강간과 추행의 죄 ·······························444
Ⅰ 서설 ························································444
Ⅱ 조문의 분석 ············································444
Ⅲ 강간죄 ·····················································444
Ⅳ 기타 범죄 ················································448
Ⅴ 성폭력범죄의 처벌 등에 관한 특례법 ······455
Ⅵ 아동·청소년의 성보호에 관한 법률 ·········458

제3장 ❙ 명예와 신용에 대한 죄 / 459

제1절 명예에 관한 죄 ··································459
Ⅰ 서설 ························································459
Ⅱ 조문의 분석 ············································459
Ⅲ 명예훼손죄 ··············································459
Ⅳ 기타 범죄 ·················································471

제2절 신용·업무·경매에 관한 죄 ················476
Ⅰ 서설 ························································476
Ⅱ 조문의 분석 ·············································476
Ⅲ 신용훼손죄 ··············································476
Ⅳ 업무방해죄 ··············································478
Ⅴ 기타 범죄 ·················································491

제4장 ❙ 사생활의 평온에 대한 죄 / 495

제1절 비밀침해의 죄 ····································495
Ⅰ 서설 ························································495
Ⅱ 개인의 비밀 ············································495

제2절 주거침입의 죄 ····································497
Ⅰ 서설 ························································497
Ⅱ 조문의 분석 ············································498
Ⅲ 주거침입죄 ··············································498
Ⅳ 기타 범죄 ················································503

제5장 ❙ 재산에 대한 죄 / 506

제1절 재산죄의 기본개념 ····························506
Ⅰ 재산죄의 분류 ·········································506
Ⅱ 재산죄의 객체 ·········································507
Ⅲ 형법상 점유 ··············································511
Ⅳ 불법영득의사 ···········································516
Ⅴ 친족상도례 ··············································520

제2절 절도의 죄 ···········································524
Ⅰ 서설 ························································524
Ⅱ 절도죄 ·····················································524
Ⅲ 기타 범죄 ················································530

제3절 강도의 죄 ···········································532
Ⅰ 서설 ························································532
Ⅱ 강도죄 ·····················································532
Ⅲ 특수강도죄 ··············································535
Ⅳ 준강도죄 ·················································536
Ⅴ 기타 범죄 ················································540

제4절 사기의 죄 ···········································546
Ⅰ 서설 ························································546
Ⅱ 사기죄 ·····················································546
Ⅲ 삼각사기 ··················································572
Ⅳ 신용카드 관련 범죄 ·································579
Ⅴ 기타 범죄 ················································584

제5절 공갈의 죄 ···········································588
Ⅰ 서설 ························································588
Ⅱ 공갈죄 ·····················································588
Ⅲ 기타 범죄 ················································593

제6절 횡령의 죄 ···········································594
Ⅰ 서설 ························································594
Ⅱ 횡령죄의 본질 ·········································594
Ⅲ 횡령죄 ·····················································594
Ⅳ 기타의 횡령죄 ··········································616
Ⅴ 기타 범죄 ················································622

제7절 배임의 죄 ···········································624
Ⅰ 서설 ························································624
Ⅱ 배임죄의 본질 ·········································624
Ⅲ 배임죄 ·····················································624
Ⅳ 기타 범죄 ·················································651

제8절 장물의 죄 ···········································659
Ⅰ 서설 ························································659
Ⅱ 장물죄의 본질 ·········································659
Ⅲ 장물의 개념 ············································660
Ⅳ 장물죄 ·····················································662
Ⅴ 기타 범죄 ················································666

제9절 손괴의 죄 ···········································668
Ⅰ 서설 ························································668
Ⅱ 재물손괴죄 ··············································668
Ⅲ 기타 범죄 ················································672

제10절 권리행사를 방해하는 죄 ··················674
Ⅰ 서설 ························································674
Ⅱ 권리행사방해죄 ·······································674
Ⅲ 기타 범죄 ················································679
Ⅳ 강제집행면탈죄 ·······································679

제2편 사회적 법익에 대한 죄

제1장 ❙공공의 안전과 평온에 대한 죄 / 688

제1절 공안을 해하는 죄 ······························688
Ⅰ 서설 ························································688
Ⅱ 공안을 해하는 죄 ····································688
제2절 폭발물에 관한 죄 ·······························692
Ⅰ 서설 ························································692
Ⅱ 폭발물에 관한 죄 ····································692

제3절 방화와 실화의 죄 ·······························694
Ⅰ 서설 ························································694
Ⅱ 현주건조물등방화죄 ································695
Ⅲ 기타 범죄 ················································697

제4절 일수와 수리에 관한 죄 ·······················701
Ⅰ 서설 ·························································701
Ⅱ 일수와 수리에 관한 죄 ·····························701

제5절 교통방해의 죄 ····································704
Ⅰ 서설 ························································704
Ⅱ 일반교통방해죄 ·······································704
Ⅲ 기타 범죄 ················································708

제2장 ❙ 공중의 건강에 대한 죄 / 710

제1절 음용수에 관한 죄 ·······························710
Ⅰ 서설 ·························································710
Ⅱ 음용수에 관한 죄 ·····································710

제2절 아편에 관한 죄 ···································712
Ⅰ 서설 ·························································712
Ⅱ 아편에 관한 죄 ·········································712

제3장 ❙ 공공의 신용에 대한 죄 / 714

제1절 통화에 관한 죄 ···································714
Ⅰ 서설 ·························································714
Ⅱ 통화위조·변조죄 ······································714
Ⅲ 기타 범죄 ·················································716

제2절 유가증권·인지·우표에 관한 죄 ··········718
Ⅰ 서설 ·························································718
Ⅱ 유가증권 위조·변조죄 ······························718
Ⅲ 자격모용에 의한 유가증권작성죄 ············723
Ⅳ 허위유가증권작성죄 ································724
Ⅴ 기타 범죄 ················································726

제3절 문서에 관한 죄 ··································729
Ⅰ 서설 ·························································729
Ⅱ 문서 위조·변조죄 ····································729
Ⅲ 자격모용에 의한 문서작성죄 ···················744
Ⅳ 전자기록 위작·변작죄 ·····························746
Ⅴ 허위문서작성죄 ·······································748
Ⅵ 기타 범죄 ·················································761

제4절 인장에 관한 죄 ··································765
Ⅰ 서설 ························································765
Ⅱ 인장에 관한 죄 ········································765

제4장 ❙ 사회의 도덕에 대한 죄 / 768

제1절 성풍속에 관한 죄 ·······························768
Ⅰ 서설 ························································768
Ⅱ 성풍속에 관한 죄 ····································768

제2절 도박과 복표에 관한 죄 ·······················772
Ⅰ 서설 ·························································772
Ⅱ 도박과 복표에 관한 죄 ····························772

제3절 신앙에 관한 죄 ···································776
Ⅰ 서설 ·························································776
Ⅱ 신앙에 관한 죄 ········································776

제3편 국가적 법익에 대한 죄

제1장 ❙국가의 존립과 권위에 대한 죄 / 782

제1절 내란의 죄 ···········································782
Ⅰ 서설 ························································782
Ⅱ 내란죄 ·····················································782

제2절 외환의 죄 ···········································784
Ⅰ 서설 ························································784
Ⅱ 외환죄 ·····················································784

제3절 국기에 관한 죄 ··································789
Ⅰ 서설 ························································789
Ⅱ 국기에 관한 죄 ········································789

제4절 국교에 관한 죄 ··································790
Ⅰ 서설 ························································790
Ⅱ 국교에 관한 죄 ········································790

제2장 ❙ 국가의 기능에 대한 죄 / 793

제1절 공무원의 직무에 관한 죄 ···················793
Ⅰ 서설 ························································793
Ⅱ 공무원의 개념 ·········································793
Ⅲ 직무유기죄 ··············································793
Ⅳ 직권남용죄 ··············································798
Ⅴ 기타 범죄 ················································802

제2절 뇌물에 관한 죄 ··································805
Ⅰ 서설 ························································805
Ⅱ 뇌물성 ·····················································805
Ⅲ 뇌물에 관한 죄 ·········································811
Ⅳ 뇌물의 몰수·추징 ····································825

제3절 공무방해에 관한 죄 ···························829
Ⅰ 서설 ························································829
Ⅱ 공무집행방해죄 ·······································829
Ⅲ 위계에 의한 공무집행방해죄 ···················838
Ⅳ 기타 범죄 ················································843

제4절 도주죄 ················································853
Ⅰ 서설 ························································853
Ⅱ 도주죄 ·····················································853

제5절 범인은닉과 증거인멸의 죄 ················855
Ⅰ 서설 ························································855
Ⅱ 범인은닉죄 ··············································855
Ⅲ 증거인멸죄 ··············································860
Ⅳ 기타 범죄 ················································863
Ⅴ 친족간 특례 ············································863

제6절 위증죄·무고죄 ···································865
Ⅰ 서설 ························································865
Ⅱ 위증죄 ·····················································865
Ⅲ 기타 위증죄 ·············································871
Ⅳ 무고죄 ······················································871
Ⅴ 자수·자백의 특례 ····································881