2022년 하반기 형법 최신판례정리

…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
1. 위헌결정의 소급효 (大判 2021도14878) ······························································· 3
[2] 정범·공범의 일반이론 ······················································································· 7
2. 대향범과 방조범의 성립여부 (大判 2020도7866) ··················································· 7
3. 특정범죄가중법 제5조의4 제5항에서 ‘징역형을 받은 경우’의 의미 (大判 2020도13705) ···························································································································· 9

…… 형 법 각 론 ……
[1] 강간과 추행의 죄 ··························································································· 11
1. 촬영물의 ‘공공연한 전시’의 의미 (大判 2022도1683) ··········································· 11
2. 아동에 대한 성적 학대행위인가의 판단기준 (大判 2020도12419) ·························· 13
[2] 명예에 관한 죄 ······························································································ 15
3. 명예훼손죄와 모욕죄에서의 공연성과 고의의 내용 (大判 2020도8336) ··················· 15
4. 명예훼손죄에서 ‘사실 적시’의 의미와 판단기준 (大判 2020도15642) ····················· 17
5. ‘비방의 목적’과 ‘공공의 이익을 위한 것’의 관계 (大判 2022도4171) ····················· 19
6. 모욕죄에서 ‘모욕’의 의미 (大判 2019도7370) ····················································· 21
7. 모욕과 사회상규에 위배되지 않는 행위 (大判 2020도16897) ································ 23
[3] 신용·업무·경매에 관한 죄 ·················································································25
8. 주거침입죄에서 ‘침입’의 의미와 업무방해죄에서 ‘위력’의 의미 (大判 2021도9055) ·· 25
9. 컴퓨터등장애업무방해죄의 성립여부 등 (大判 2021도1533) ·································· 27
[4] 주거침입의 죄 ······························································································· 29
10. 주거침입죄에서 ‘침입’의 의미 (大判 2022도3801) ············································· 29
[5] 사기의 죄 ····································································································· 32
11. 소송사기의 성립요건 (大判 2022도1227) ·························································· 32
[6] 횡령의 죄 ····································································································· 34
12. 횡령죄에서 위탁관계의 의미 (大判 2017도21286) ············································· 34
13. 채권양도인의 지위 (大判 2017도3829, 전원합의체 판결) ···································· 36
[7] 배임의 죄 ····································································································· 40
14. 자료 무단반출시 업무상배임죄의 성립을 위한 자료의 성격 (大判 2018도4794) ····· 40
[8] 공안을 해하는 죄 ··························································································· 42
15. 범죄단체 구성·활동죄와 개별범죄의 관계 (大判 2022도6993) ······························ 42
[9] 문서에 관한 죄 ······························································································ 44
16. 허위공문서작성죄에서 ‘허위’의 의미 등 (大判 2020도9714) ································ 44
17. 공문서 부정행사의 의미 (大判 2021도14514) ··················································· 46
[10] 공무원의 직무에 관한 죄 ·············································································· 48
18. 직무유기의 의미 (大判 2021도8361) ································································ 48
[11] 공무방해에 관한 죄 ······················································································ 50
19. 접견교통권 행사의 한계 일탈과 위계에 의한 공무집행방해죄의 성립 여부 (大判 2021도244) ··············································································································· 50
[12] 무고의 죄 ··································································································· 52
20. 무고죄의 고의와 목적 (大判 2022도3413) ························································ 52

※ 참고판례 ········································································································ 53