형법.형사소송법 1년간 최신판례정리

…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
1. 헌법불합치결정의 성격 및 효력(大判 2017도8610) ················································ 3
2. 음주운전전과의 계산과 소급효금지의 원칙(大判 2020도7154) ································· 4
3. 공소시효의 정지·연장·배제와 소급효(大判 2020도3694) ········································· 5
[2] 정당행위 ········································································································ 8
4. 노동조합 조합활동의 정당성 인정요건(大判 2017도2478) ······································· 8
5. 쟁의행위의 정당성(大判 2015도1927) ································································ 10
[3] 정범·공범의 일반이론 ····················································································· 12
6. 대향범과 공범규정의 적용 여부(大判 2016도3048) ·············································· 12
[4] 수 죄 ··········································································································· 14
7. 포괄일죄와 실체적 경합범의 구별기준(大判 2020도1355) ····································· 14
[5] 형의 양정 ····································································································· 17
8. 형의 임의적 감경의 방법(大判 2018도5475, 전원합의체 판결) ······························ 17
[6] 누 범 ··········································································································· 19
9. 특가법 제5조의4 제5항의 절도와 누범가중(大判 2019도18947) ···························· 19
[7] 집행유예·선고유예·가석방 ················································································ 20
10. 사회봉사명령시 원상회복명령의 부과 여부(大判 2017도18291) ··························· 20

…… 형 법 각 론 ……
[1] 강간과 추행의 죄 ··························································································· 22
1. 알코올 블랙아웃(black out)과 심신상실(大判 2018도9781) ··································· 22
2. 위계에 의한 간음죄에서 ‘위계’의 의미(大判 2015도9436, 전원합의체 판결) ············ 25
3. 업무상 위력에 의한 추행의 객체 등(大判 2020도5646) ········································ 27
4. 공중 밀집장소에서의 추행의 의미(大判 2015도7102) ··········································· 28
[2] 명예에 관한 죄 ······························································································ 30
5. 전파가능성과 공연성(大判 2020도5813, 전원합의체 판결) ···································· 30
6. 공적인 인물에 대한 명예훼손(大判 2016도14995) ··············································· 36
7. ‘사실을 드러내어’의 의미와 정도(大判 2019도12750) ·········································· 38
8. ‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계(大判 2020도11471) ··········· 40
9. 모욕과 사회상규에 위배되지 않는 행위(大判 2017도17643) ·································· 42
[3] 신용·업무와 경매에 관한 죄 ············································································ 44
10. 업무담당자의 심사의무와 업무방해죄의 기수시기(大判 2017도19283) ·················· 44
[4] 주거침입의 죄 ······························································································· 46
11. 공동주택 출입에 대한 동의권자(大判 2017도21323) ·········································· 46
[5] 사기의 죄 ····································································································· 48
12. 부작위에 의한 기망과 고지의무(大判 2018도13696) ·········································· 48
[6] 횡령의 죄 ····································································································· 51
13. 채권 양도담보계약에서 채무자의 지위(大判 2020도12927) ································· 51
14. 양자간 명의신탁과 횡령죄(大判 2016도18761, 전원합의체 판결) ························· 52
[7] 배임의 죄 ····································································································· 54
15. 채무자의 ‘동산채권담보법’상 담보로 제공된 동산에 대한 보관의무(大判 2019도14770, 전원합의체 판결) ································································································· 54
16. 동산 저당권 설정의무와 사무의 타인성(大判 2020도6258, 전원합의체 판결) ········· 56
17. 주권발행 전 주식의 이중양도(大判 2015도6057) ··············································· 58
18. 채무자의 저당권설정의무 및 부동산 양도담보설정의무의 성격(大判 2019도14340, 전원합의체 판결) · 59
19. 매도인이 매수인에게 가등기를 해 준 후 이중매매를 한 경우(大判 2019도16228) ·· 61
20. 채무자의 저당권설정의무 및 부동산 양도담보설정의무의 성격(大判 2019도14340, 전원합의체 판결) · 62
[8] 공안을 해하는 죄 ··························································································· 64
21. 범죄를 목적으로 하는 단체 및 집단의 의미(大判 2019도16263) ·························· 64
[9] 문서에 관한 죄 ······························································································ 66
22. 사문서와 공문서의 구별(大判 2020도14666) ····················································· 66
23. 문서 위조의 정도(大判 2019도8443) ································································ 67
24. 공문서변조의 정도(大判 2018도19043) ···························································· 69
25. 사전자기록위작죄에서 ‘위작’의 의미(大判 2019도11294, 전원합의체 판결) ··········· 70
[10] 도박과 복표에 관한 죄 ················································································· 76
26. 도박공간개설죄와 ‘영리의 목적’(大判 2020도8978) ············································ 76
[11] 공무원의 직무에 관한 죄 ·············································································· 77
27. 직권남용의 의미 및 판단기준(大判 2020도12583) ············································· 77
28. 직권남용과 의무 없는 일(大判 2019도17879) ··················································· 80
29. 공여자와 수뢰자 사이의 뇌물의 직접 수수 여부(大判 2017도12389) ···················· 81
30. 수뢰후부정처사죄에서 부정행위의 시기(大判 2020도12103) ································ 82
[12] 공무방해에 관한 죄 ······················································································ 83
31. 위계에 의한 공무집행방해죄의 기수시기(大判 2018도18582) ······························ 83
32. 공무소에서 사용하는 전자기록의 의미(大判 2015도19296) ································· 85
[13] 위증과 증거인멸의 죄 ··················································································· 87
33. 증거위조죄에서 ‘증거’ 및 ‘위조’의 개념(大判 2020도2642) ································· 87

…… 형 법 소 송 법 ……
[1] 수사의 방법 ·································································································· 89
1. 임의동행의 종류(大判 2020도398) ····································································· 89
[2] 대물적 강제수사 ···························································································· 90
2. 압수·수색에의 참여권(大判 2020도10729) ·························································· 90
[3] 증거조사와 강제처분 ······················································································ 92
3. 증인의 불출석에 대한 법원의 조치(大判 2020도2623) ········································· 92
[4] 증명의 기본원칙 ···························································································· 94
4. 성폭행 피해자의 진술의 증명력 판단방법 등(大判 2020도6965,2020전도74) ·········· 94
[5] 전문법칙 ······································································································· 96
5. 형사소송법 제312조 제3항의 적용범위(大判 2016도9367) ···································· 96
[6] 재판의 기본개념 ···························································································· 98
6. 재판서 경정의 방법(大判 2017도18536) ····························································· 98
[7] 상소의 일반이론 ···························································································· 99
7. 부정기형과 불이익변경금지의 원칙(大判 2020도4140, 전원합의체 판결) ················ 99
[8] 항 소 ········································································································· 103
8. 항소이유서 제출기간의 계산방법(大決 2020모3694) ··········································· 103
9. 항소심에서 변호인의 피고인신문권(大判 2020도10778) ······································ 104
10. 항소기각의 방법(大判 2019도17995) ······························································ 105
[9] 상 고 ········································································································· 106
11. 양형부당과 상고이유(大判 2020도8358) ························································· 106
[10] 재 심 ········································································································ 108
12. 군사법원의 판결에 대한 재심사건의 관할(大決 2019모3197) ····························· 108
13. 재심개시절차에서의 사실조사(大決 2019모3554) ············································· 109
[11] 비상상고 ··································································································· 110
14. 비상상고의 대상(大判 2019오1) ····································································· 110
15. 사실오인과 비상상고(大判 2018오2) ······························································· 111
[12] 재판의 집행 ······························································································· 113
16. 추징판결 집행의 대상(大決 2020모4058) ························································ 113

참고판례 ··········································································································· 114