2025 PARFAIT 형법 총론 기본서

▶ 제1편 서 론 ◀

제1장 형법의 기본개념 2

제1절 형법의 의의 ··············································································································· 2
Ⅰ. 개 념/2
Ⅱ. 형식적 의미의 형법과 실질적 의미의 형법/2

제2절 형법의 지위와 성격 ··································································································· 3
Ⅰ. 형법의 법체계적 지위/3
Ⅱ. 형법의 규범적 성격/3

제3절 형법의 기능 ··············································································································· 4
Ⅰ. 규제적 기능/4
Ⅱ. 보호적 기능/4
Ⅲ. 보장적 기능/5

제2장 형법의 발전 6

제1절 형법의 역사 ·············································································································· 6

제2절 형법의 학파 ·············································································································· 6
Ⅰ. 고전학파(구파)/6
Ⅱ. 근대학파(신파)/6
Ⅲ. 형법학파의 비교/7

제3절 범죄이론 ···················································································································· 7
Ⅰ. 객관주의/7
Ⅱ. 주관주의/7
Ⅲ. 양자의 비교/8

제3절 형벌이론 ···················································································································· 9
Ⅰ. 응보형주의/9
Ⅱ. 목적형주의/9
Ⅲ. 결합설/10

제3장 죄형법정주의 11

제1절 죄형법정주의의 의의 ·································································································· 11
Ⅰ. 의 의/11
Ⅱ. 기 능/11
Ⅲ. 법적 근거/11

제2절 죄형법정주의의 내용 ·································································································· 12
Ⅰ. 성문법률주의(법률주의)/12
Ⅱ. 명확성의 원칙/16
Ⅲ. 소급효금지의 원칙/23
Ⅳ. 유추해석의 금지의 원칙/32
Ⅴ. 적정성의 원칙/55

제4장 형법의 적용범위 60

제1절 시간의 적용범위 ········································································································ 60
Ⅰ. 행위시법주의(원칙)/60
Ⅱ. 재판시법주의(예외)/61
Ⅲ. 한시법/68

제2절 장소적 적용범위········································································································· 69
Ⅰ. 개 설/69
Ⅱ. 속지주의/69
Ⅲ. 속인주의/70
Ⅳ. 기국주의/70
Ⅴ. 보호주의/71
Ⅵ. 세계주의/73
Ⅶ. 외국에서 받은 형의 집행/73




제3절 인적 적용범위 ········································································································· 74
Ⅰ. 원 칙/74
Ⅱ. 예 외/74

▶ 제2편 범죄론 ◀

제1장 범죄론의 기초 78

제1절 범죄의 의의와 종류 ·································································································· 78
Ⅰ. 범죄의 의의/78

Ⅱ. 범죄의 성립요건·처벌조건·소추조건/78
Ⅲ. 범죄의 종류/84

제2절 행위론 ······················································································································· 90
Ⅰ. 행위론의 의의/90
Ⅱ. 행위의 기능/91
Ⅲ. 행위론의 종류/91

제3절 범죄체계론 ················································································································ 92
Ⅰ. 범죄체계론의 의의/92
Ⅱ. 범죄체계론의 분류/92

제4절 행위와 주체와 객체 ·································································································· 93
Ⅰ. 행위의 주체/93
Ⅱ. 행위의 객체와 보호의 객체/101

제2장 구성요건론 102

제1절 구성요건의 일반이론 ······························································································· 102
Ⅰ. 구성요건의 의의/102
Ⅱ. 구성요건이론의 발전/102
Ⅲ. 구성요건과 위법성의 관계/103
Ⅳ. 구성요건의 유형/104
Ⅴ. 구성요건의 요소/105


제2절 결과반가치와 행위반가치 ························································································ 106
Ⅰ. 결과반가치와 행위반가치/106
Ⅱ. 결과반가치론과 행위반가치론/106
Ⅲ. 불법의 내용/106

제3절 부작위범 ·················································································································· 107
Ⅰ. 개 설/107
Ⅱ. 부작위범의 의의 및 종류/109
Ⅲ. 부작위범의 (일반적) 성립요건/111
Ⅳ. 부진정부작위범의 특유한 요건/112
Ⅴ. 부진정부작위범의 구성요건/112
Ⅵ. 관련문제/116

제4절 인과관계와 객관적 귀속 ·························································································· 118
Ⅰ. 인과관계의 의의/118
Ⅱ. 인과관계의 유형/118
Ⅲ. 인과관계에 대한 학설/119
Ⅳ. 객관적 귀속이론/124
Ⅴ. 제17조의 해석/128

제5절 구성요건적 고의 ······································································································ 129
Ⅰ. 고의의 의의/129
Ⅱ. 고의의 체계적 지위/130
Ⅲ. 고의의 내용/131
Ⅳ. 고의의 종류/132

제6절 구성요건적 착오 ······································································································ 138
Ⅰ. 개 설/139
Ⅱ. 구성요건적 착오의 유형/140
Ⅲ. 구성요건적 착오에 대한 학설과 판례/141

Ⅳ. 가감적 구성요건에 대한 착오/142
Ⅴ. 인과관계의 착오와 개괄적 고의/143

제7절 과실범 ····················································································································· 145
Ⅰ. 서 설/145
Ⅱ. 과실범의 성립요건/150
Ⅲ. 객관적 주의의무의 제한원리/153
Ⅳ. 관련문제/165

제8절 결과적 가중범 ········································································································· 166
Ⅰ. 결과적 가중범의 의의/166
Ⅱ. 결과적 가중범의 종류/166
Ⅲ. 결과적 자중범의 성립요건/168
Ⅳ. 관련문제/171

제3장 위법성론 174

제1절 위법성의 일반이론 ·································································································· 174
Ⅰ. 위법성의 의의/174
Ⅱ. 위법성의 본질/174
Ⅲ. 위법성의 평가방법/175
Ⅳ. 위법성의 조각사유/175

제2절 정당방위 ·················································································································· 177
Ⅰ. 정당방위의 의의/177
Ⅱ. 정당방위의 성립요건/177
Ⅲ. 정당방위의 효과/184
Ⅳ. 과잉방위와 오상방위/184

제3절 긴급피난 ·················································································································· 186
Ⅰ. 긴급피난의 의의/186
Ⅱ. 긴급피난의 성립요건/187
Ⅲ. 긴급피난의 효과/190
Ⅳ. 과잉피난와 오상피난/190
Ⅴ. 의무의 충돌/190

제4절 자구행위 ·················································································································· 191
Ⅰ. 자구행위의 의의/191
Ⅱ. 자구행위의 성립요건/192
Ⅲ. 자구행위의 효과/194
Ⅳ. 과잉자구행위와 오상자구행위/194

제5절 피해자의 승낙 ·········································································································· 195
Ⅰ. 형법상 피해자의 동의/196
Ⅱ. 양 해/196
Ⅲ. 피해자의 승낙/197
Ⅳ. 추정적 승낙/198

제6절 정당행위 ·················································································································· 199
Ⅰ. 의 의/199
Ⅱ. 법령에 의한 행위/200
Ⅲ. 업무로 인한 행위/209
Ⅳ. 사회상규에 반하지 않는 행위/211

제4장 책임론 224

제1절 책임의 일반이론 ······································································································ 224
Ⅰ. 책임의 의의/224
Ⅱ. 책임의 근거/224
Ⅲ. 책임의 본질/2224

제2절 책임능력 ················································································································ 226
Ⅰ. 책임능력의 의의/226
Ⅱ. 책임무능력자/226
Ⅲ. 한정책임능력자/232
Ⅳ. 원인에 있어 자유로운 행위/234

제3절 위법성의 인식과 금지착오 ······················································································· 236
Ⅰ. 위법성의 인식/236
Ⅱ. 금지착오/237
Ⅲ. 위법성조각사유의 전제사실에 대한 착오/249

제4절 기대가능성 ················································································································ 253
Ⅰ. 기대가능성이론/253
Ⅱ. 강요된 행위/256
Ⅲ. 초법규적 책임조각사유/258

제5장 미수론 260

제1절 미수범의 일반이론 ··································································································· 260
Ⅰ. 범죄실현의 단계/260
Ⅱ. 미수범의 처벌근거/260

제2절 장애미수 ··················································································································· 261
Ⅰ. 의 의/262
Ⅱ. 장애미수의 성립요건/262
Ⅲ. 장애미수의 처벌/263
Ⅳ. 범죄유형별 실행의 착수/263
Ⅴ. 실행의 착수 관련 판례/263

제3절 중지미수 ··················································································································· 271
Ⅰ. 의 의/271
Ⅱ. 중지미수의 성립요건/272
Ⅲ. 중지미수의 처벌/273
Ⅳ. 관련문제/273

제4절 불능미수 ··················································································································· 276
Ⅰ. 의 의/276
Ⅱ. 불능미수의 성립요건/276
Ⅲ. 불능미수의 처벌/278
Ⅳ. 환각범/278

제5절 예비죄 ······················································································································ 281
Ⅰ. 개 설/281
Ⅱ. 예비죄의 법적성격/282
Ⅲ. 예비죄의 성립요건/284
Ⅳ. 관련문제/286

제6장 정범 및 공범론 288

제1절 정범 및 공범의 일반이론 ························································································· 288
Ⅰ. 개 설/288
Ⅱ. 임의적 공범과 필요적 공범/288
Ⅲ. 정범과 공범의 구별/293
Ⅳ. 공범의 종속성/295

제2절 간접정범 ·················································································································· 297
Ⅰ. 개 설/297
Ⅱ. 간접정범의 성립요건/298
Ⅲ. 간접정범의 처벌/299
Ⅳ. 관련문제/300

제3절 공동정범 ··················································································································· 304
Ⅰ. 의 의/304
Ⅱ. 공동정범의 성립요건/305
Ⅲ. 공동정범의 처벌/320
Ⅳ. 공동정범의 착오/320
Ⅴ. 동시범/321
Ⅵ. 합동범/324

제4절 교사범 ······················································································································ 326
Ⅰ. 의 의/326
Ⅱ. 교사범의 성립요건/326
Ⅲ. 교사범의 처벌/330
Ⅳ. 교사의 착오/330
Ⅴ. 관련문제/332

제5절 종 범 ························································································································ 333
Ⅰ. 의 의/333
Ⅱ. 종범의 성립요건/333
Ⅲ. 종범의 처벌/340
Ⅳ. 방조의 착오/341
Ⅴ. 관련문제/342

제6절 공범과 신분 ·············································································································· 343
Ⅰ. 개 설/343
Ⅱ. 제33조 해석론/344
Ⅲ. 소극적 신분과 공범/348

제7장 죄수론 351

제1절 죄수의 일반이론 ······································································································· 351
Ⅰ. 죄수론의 의의/351
Ⅱ. 죄수결정의 기준/351
Ⅲ. 수죄의 처벌/351

제2절 일 죄 ························································································································ 352
Ⅰ. 개 설/352
Ⅱ. 법조경합/352
Ⅲ. 포괄일죄/356

제3절 수 죄 ························································································································· 366
Ⅰ. 상상적 경합/366
Ⅱ. 실체적 경합/371

▶ 제3편 형벌론 ◀

제1절 형벌의 종류 ·············································································································· 386
Ⅰ. 형벌의 의의/386
Ⅱ. 형벌의 종류/386
Ⅲ. 사 형/386
Ⅳ. 자유형/387
Ⅴ. 명예형/387
Ⅵ. 재산형/388
Ⅶ. 형의 경중/400

제2절 형의 양정 ················································································································· 401
Ⅰ. 의 의/401
Ⅱ. 형의 가중·감경·면제/401
Ⅲ. 양 형/408
Ⅳ. 미결구금 및 판결의 공시/409
Ⅴ. 판결의 공시/410

제3절 누 범 ························································································································ 411
Ⅰ. 의 의/411
Ⅱ. 누범가중의 요건/411
Ⅲ. 누범의 효과/412
Ⅳ. 특가법상 누범 등 가중처벌/415

제4절 선고유예·집행유예·가석방 ···················································································· 418
Ⅰ. 선고유예/418
Ⅱ. 집행유예/421
Ⅲ. 가석방/427

제5절 형의 시효·소멸·기간 ····························································································· 430
Ⅰ. 형의 시효/430
Ⅱ. 형의 소멸·실효/431
Ⅲ. 복권과 사면/432
Ⅳ. 형의 기간/433

제6절 보안처분 ··················································································································· 433
Ⅰ. 의 의/433
Ⅱ. 형벌과 보안처분의 관계/434
Ⅲ. 현행법상 보안처분/434

판례색인 ····························································································································· 436