2025 이윤탁 형법 필기노트

형법 총론
제1편 형법의 일반이론
제1장 형법의 기본개념
Ⅰ. 형법의 의의 ······································································· 3
Ⅱ. 형법의 성격 ······································································· 3
Ⅲ. 형법의 기능 ······································································· 3
제2장 형법이론
Ⅰ. 형법 학파 ··········································································· 4
Ⅱ. 범죄이론 ············································································ 5
Ⅲ. 형벌이론 ············································································ 6
제3장 죄형법정주의
Ⅰ. 서 론 ················································································· 7
Ⅱ. 내 용 ················································································· 7
제4장 형법의 적용범위
Ⅰ. 시간적 적용범위 ······························································ 14
Ⅱ. 장소적 적용범위 ······························································ 16
Ⅲ. 인적 적용범위 ·································································· 18
Ⅳ. 형법 총칙의 적용 ····························································· 18
제2편 범죄론
제1장 범죄론의 기초
제1절 범죄의 의의와 종류
Ⅰ. 범죄의 의의 ····································································· 20
Ⅱ. 범죄의 성립요건 ······························································ 20
Ⅲ. 범죄의 처벌조건 ······························································ 20
Ⅳ. 범죄의 소추조건 ······························································ 21
Ⅴ. 범죄의 종류 ····································································· 21
제2절 범죄체계론 ······························································· 25
제3절 행위의 주체와 객체 ················································ 26
Ⅰ. 범죄의 의의 ····································································· 20
Ⅱ. 범죄의 성립요건 ······························································ 20
Ⅲ. 범죄의 처벌조건 ······························································ 20
Ⅳ. 범죄의 소추조건 ······························································ 21
Ⅴ. 범죄의 종류 ····································································· 21
제2장 구성요건론
제1절 구성요건의 일반이론
Ⅰ. 구성요건의 의의 ······························································ 29
Ⅱ. 구성요건과 위법성의 관계 ··············································· 29
Ⅲ. 구성요건의 요소 ······························································ 30
제2절 인과관계와 객관적 귀속
Ⅰ. 의의와 적용범위 ······························································ 31
Ⅱ. 인과관계의 유형 ······························································ 31
Ⅲ. 인과관계에 관한 학설 ······················································ 32
Ⅳ. 객관적 귀속이론 ······························································ 33
Ⅴ. 인과관계에 대한 판례정리 ··············································· 33
제3절 구성요건적 고의
Ⅰ. 의 의 ··············································································· 35
Ⅱ. 고의의 본질(인식 + 의사) ················································ 35
Ⅲ. 고의의 내용 ····································································· 35
Ⅳ. 고의의 종류 ····································································· 36
제4절 구성요건적 착오
Ⅰ. 의 의 ··············································································· 39
Ⅱ. 구성요건적 착오의 유형 ··················································· 39
Ⅲ. 구성요건적 착오의 해결 ··················································· 40
Ⅳ. 가감적 구성요건요소에 대한 착오 ··································· 41
Ⅴ. 인과관계의 착오(인과관계 착오에 대한 학설 정리) ·········· 42
Ⅵ. 병발사례 ·········································································· 42
제3장 위법성
제1절 위법성의 이론
Ⅰ.위법성의 의의 ··································································· 43
Ⅱ. 위법성의 본질(무엇을 위반.) ··········································· 43
Ⅲ. 위법성의 평가방법(누구 기준.) ······································· 44
Ⅳ. 위법성조각사유 ······························································· 44
Ⅴ. 불법의 본질(결과반가치와 행위 반가치) ·························· 44
Ⅵ. 주관적 정당화요소 ··························································· 45
제2절 정당방위
Ⅰ.의 의 ················································································ 47
Ⅱ. 성립요건 ·········································································· 47
Ⅲ. 정당방위의 효과 ······························································ 49
Ⅳ. 과잉방위와 오상방위 ······················································· 49
제3절 긴급피난
제4절 자구행위
Ⅰ. 의 의 ··············································································· 54
Ⅱ. 성립요건 ·········································································· 54
Ⅲ. 효 과 ··············································································· 55
Ⅳ. 과잉자구행위와 오상자구행위 ········································· 55
제5절 피해자의 승낙
Ⅰ. 의 의 ··············································································· 57
Ⅱ. 양 해 ··············································································· 57
Ⅲ. 피해자의 승낙 ·································································· 58
Ⅳ. 추정적 승낙 ····································································· 59
제6절 정당행위
Ⅰ. 서 론 ·············································································· 60
Ⅱ. 법령에 의한 행위 ····························································· 60
Ⅲ. 업무로 인한 행위 ····························································· 62
Ⅳ. 사회상규에 위배되지 않는 행위 ······································· 62
제4장 책임론
제1절 책임이론
Ⅰ. 책임의 의의와 근거 ·························································· 65
Ⅱ. 책임의 본질 ····································································· 66
제2절 책임능력
Ⅰ. 서 론 ··············································································· 67
Ⅱ. 책임무능력자 ··································································· 67
Ⅲ. 한정 책임능력자 ······························································ 70
Ⅳ. 원인에 있어서 자유로운 행위 ·········································· 71
제3절 위법성의 인식
Ⅰ. 서 설 ··············································································· 73
Ⅱ. 위법성 인식의 체계적 지위 ·············································· 73
제4절 법률의 착오
Ⅰ. 의 의 ··············································································· 75
Ⅱ. 법률의 착오의 유형 ·························································· 75
Ⅲ. 법률의 착오의 효과 ·························································· 76
Ⅳ. 형법 제16조와 정당한 이유 ············································· 77
Ⅴ. 위법성조각사유의 전제사실에 관한 착오 ························· 79
제5절 기대가능성
Ⅰ. 서 설 ··············································································· 81
Ⅱ. 기대가능성의 판단기준 ···················································· 81
Ⅲ. 강요된 행위 ····································································· 82
제5장 미수론
제1절 미수범의 일반이론
Ⅰ. 범죄의 실현단계 ······························································ 84
Ⅱ. 미수범의 처벌근거 ··························································· 84
Ⅲ. 형법상 미수범의 체계 ······················································ 85
Ⅳ. 형법상 미수범 처벌규정 ················································· 85
제2절 장애미수 ····································································· 87
제3절 중지미수 ····································································· 90
제4절 불능미수 ····································································· 92
제5절 예비죄 ········································································· 95
제6장 공범론
제1절 공범이론
Ⅰ. 서 론 ··············································································· 97
Ⅱ. 정범과 공범의 구별 ·························································· 98
Ⅲ. 공범의 종속성과 종속의 정도 ·········································· 99
제2절 공동정범
제3절 합동범
제4절 동시범
Ⅰ. 의 의 ············································································ 108
Ⅱ. 제19조의 동시범 ··························································· 108
Ⅲ. 제263조의 동시범 ························································· 108
제5절 간접정범
Ⅰ. 의 의 ············································································ 110
Ⅱ. 성립요건 ········································································ 110
Ⅲ. 간접정범의 처벌 ···························································· 110
Ⅳ. 관련문제 ········································································ 111
제6절 교사범
Ⅰ. 의 의 ············································································ 113
Ⅱ. 성립요건 ········································································ 113
Ⅲ. 교사의 착오 ··································································· 114
Ⅳ. 관련문제 ········································································ 116
제7절 방조범(종범)
Ⅰ. 의 의 ············································································ 117
Ⅱ. 성립요건 ········································································ 117
Ⅲ. 방조범의 처벌 ······························································· 119
Ⅳ. 관련문제 ········································································ 119
제8절 공범과 신분
Ⅰ. 서 론 ············································································ 121
Ⅱ. 형법 제33조의 해석 ······················································ 121
Ⅲ. 진정신분범과 공범 ························································ 122
Ⅳ. 부진정신분범과 공범 ····················································· 123
Ⅴ. 소극적 신분과 공범 ······················································· 124
제7장 특수한 형태의 범죄
제1절 부작위범
Ⅰ. 서 론 ············································································ 126
Ⅱ. 부작위범의 종류 ···························································· 127
Ⅲ. 부작위범 성립요건 ························································ 127
Ⅳ. 부진정부작위범의 특유한 구성요건(부작위의 동치성) ··· 128
Ⅴ. 관련문제 ········································································ 131
제2절 과실범
Ⅰ. 개념과 종류 ··································································· 132
Ⅱ. 성립요건 ········································································ 134
Ⅲ. 객관적 주의의무 제한원리 ············································· 135
제3절 결과적 가중범
Ⅰ. 서 론 ············································································ 138
Ⅱ. 결과적 가중범의 유형 ···················································· 138
Ⅲ. 결과적 가중범의 성립요건 ············································· 140
Ⅳ. 관련문제 ········································································ 141
제8장 죄수론
제1절 죄수이론
Ⅰ. 의 의 ············································································ 142
Ⅱ. 죄수결정의 기준 ···························································· 142
Ⅲ. 수죄에 대한 처벌 ··························································· 143
제2절 일죄
Ⅰ. 법조경합 ········································································ 144
Ⅱ. 포괄일죄 ········································································ 146
제3절 수죄
Ⅰ. 상상적 경합 ··································································· 150
Ⅱ. 실체적 경합 ··································································· 151
제3편 형벌론
제1장 형벌의 종류 ······························································ 156
제2장 형의 양정 ·································································· 162
제3장 누범 ············································································ 167
제4장 선고유예·집행유예·가석방 ··································· 169
제5장 형의 시효와 소멸 ····················································· 175
제6장 보안처분 ···································································· 178

형법 각론
제1편 개인적 법익에 대한 죄
제1장 생명과 신체에 대한 죄
제1절 살인의 죄
Ⅰ. 의 의 ············································································ 182
Ⅱ. 구성요건의 체계 ···························································· 182
Ⅲ. 보통살인죄 ···································································· 183
Ⅳ. 존속살해죄(가중적 구성요건) ········································ 185
Ⅴ. 영아살해죄(삭제) ··························································· 185
Ⅵ. 촉탁.승낙에 의한 살인죄 ············································ 186
Ⅶ. 자살교사.방조죄 ························································· 186
Ⅷ. 위계.위력에 의한 살인죄 ············································ 187
Ⅸ. 살인 예비.음모죄 ························································ 187
제2절 상해와 폭행의 죄
Ⅰ. 의 의 ············································································ 189
Ⅱ. 구성요건의 체계 ···························································· 189
Ⅲ 상해죄, 존속상해죄 ························································ 190
Ⅳ. 중상해죄, 존속중상해죄 ················································ 191
Ⅴ. 특수상해죄 ···································································· 192
Ⅵ. 상해치사죄.존속상해치사죄 ········································ 193
Ⅶ. 상해죄의 동시범 특례 ···················································· 193
Ⅷ. 폭행죄.존속폭행죄 ······················································ 193
Ⅸ. 특수폭행죄 ···································································· 195
Ⅹ. 폭행치사상죄 ································································· 196
.. 상습상해.상습폭행죄 ·················································· 196
제3절 과실치사상의 죄
Ⅰ. 의 의 ············································································ 197
Ⅱ. 과실치상죄.과실치사죄 ··············································· 197
Ⅲ. 업무상 과실.중과실치사상죄 ······································· 198
제4절 낙태의 죄
Ⅰ. 의 의 ············································································ 200
Ⅱ. 모자보건법상 인공임신중절 ··········································· 200
Ⅲ. 자기낙태죄와 의사낙태죄에 대한 헌법불합치 결정 ········ 200
제5절 유기와 학대의 죄
Ⅰ. 의 의 ············································································ 201
Ⅱ. 구성요건의 체계 ···························································· 201
Ⅲ. 유기죄 ··········································································· 202
Ⅳ. 존속유기죄 ···································································· 202
Ⅴ. 중유기죄.존속중유기죄 ··············································· 203
Ⅵ. 영아유기죄 (삭제) ························································· 203
Ⅶ. 유기치사상죄.존속유기치사상죄 ································· 203
Ⅷ. 학대죄 ··········································································· 203
Ⅸ. 존속학대죄 ···································································· 204
Ⅹ. 아동혹사죄 ···································································· 204
제2장 자유에 관한 죄
제1절 협박의 죄
Ⅰ. 의 의 ············································································ 205
Ⅱ. 구성요건의 체계 ···························································· 205
Ⅲ. 협박죄 ··········································································· 205
Ⅳ. 가중적 구성요건 ···························································· 207
Ⅴ. 스토킹 범죄 ··································································· 207
제2절 강요의 죄
Ⅰ. 의 의 ············································································ 208
Ⅱ. 구성요건의 체계 ···························································· 208
Ⅲ. 강요죄 ··········································································· 208
Ⅳ. 특수강요죄 ···································································· 209
Ⅴ. 중강요죄 ········································································ 210
Ⅵ. 인질강요죄 등 ······························································· 210
제3절 체포와 감금의 죄
Ⅰ. 의 의 ············································································ 211
Ⅱ. 구성요건의 체계 ···························································· 211
Ⅲ. 체포.감금죄 ································································ 211
Ⅳ. 가중적 구성요건 ···························································· 212
제4절 약취와 유인 및 인신매매의 죄
Ⅰ. 의 의 ············································································ 215
Ⅱ. 구성요건의 체계 ···························································· 215
Ⅲ. 미성년자 약취.유인죄 ················································· 216
Ⅳ. 가중적 구성요건 ···························································· 217
제5절 강간과 추행의 죄
Ⅰ. 의 의 ············································································ 219
Ⅱ. 구성요건의 체계 ···························································· 219
Ⅲ. 강간죄 ··········································································· 220
Ⅳ. 준강간죄와 준강제추행죄 ·············································· 222
Ⅴ. 미성년자 의제강간.의제강제추행죄 ···························· 223
Ⅵ. 강간 등 상해.치상죄 ··················································· 223
Ⅶ. 강간 등 살인.치사죄 ··················································· 224
Ⅷ. 그 밖의 구성요건 ··························································· 224
Ⅸ. 성범죄에 대한 특별형법 ················································ 226
제3장 명예와 신용에 관한 죄
제1절 명예에 관한 죄
Ⅰ. 의 의 ············································································ 229
Ⅱ. 구성요건의 체계 ···························································· 229
Ⅲ. 명예훼손에 관한 죄 ······················································· 230
Ⅳ. 모욕죄 ··········································································· 234
제2절 신용·업무와 경매에 관한 죄
Ⅰ. 의 의 ············································································ 236
Ⅱ.구성요건의 체계 ····························································· 236
Ⅲ. 신용훼손죄 ···································································· 236
Ⅳ. 업무방해죄 ···································································· 238
Ⅴ. 컴퓨터등 장애 업무방해죄 ············································· 241
Ⅵ. 경매.입찰방해죄 ························································· 241
제4장 사생활의 평온에 관한 죄
제1절 비밀침해의 죄
Ⅰ. 의 의 ············································································ 242
Ⅱ. 구성요건의 체계 ···························································· 242
Ⅲ. 비밀침해죄 ···································································· 242
Ⅳ. 업무상 비밀누설죄 ························································ 244
제2절 주거침입의 죄
Ⅰ. 의 의 ············································································ 245
Ⅱ. 구성요건의 체계 ···························································· 245
Ⅲ. 주거침입죄 ···································································· 245
Ⅳ.퇴거불응죄 ····································································· 248
Ⅴ. 특수주거침입죄 ····························································· 248
Ⅵ. 주거.신체수색죄 ························································· 249
제5장 재산에 관한 죄
제1절 재산죄 일반
Ⅰ. 서 설 ············································································ 250
Ⅱ. 재산죄의 객체 ······························································· 250
Ⅲ. 형법상 점유 ··································································· 251
Ⅳ. 불법영득의사 ································································· 253
제2절 절도의 죄
Ⅰ.의 의 ············································································· 255
Ⅱ. 구성요건의 체계 ···························································· 255
제3절 강도의 죄
Ⅰ.의 의 ············································································· 259
Ⅱ. 구성요건의 체계 ···························································· 259
제4절 사기의 죄
Ⅰ.의 의 ············································································· 266
Ⅱ. 구성요건의 체계 ···························································· 266
CONTENTS
제5절 공갈의 죄
Ⅰ.의 의 ············································································· 275
Ⅱ. 구성요건의 체계 ···························································· 275
제6절 횡령의 죄
Ⅰ.서 론 ············································································· 278
Ⅱ. 구성요건의 체계 ···························································· 278
제7절 배임의 죄
Ⅰ.서 론 ············································································· 288
Ⅱ. 구성요건의 체계 ···························································· 288
제8절 장물의 죄
Ⅰ.서 론 ············································································· 295
Ⅱ. 구성요건의 체계 ···························································· 295
제9절 손괴의 죄
Ⅰ.서 론 ············································································· 297
Ⅱ. 구성요건의 체계 ···························································· 297
제10절 권리행사를 방해하는 죄
Ⅰ. 의 의 ············································································ 300
Ⅱ. 구성요건의 체계 ···························································· 300
제2편 사회적 법익에 대한 죄
제1장 공공의 안전과 평온에 관한 죄
제1절 공안을 해하는 죄
Ⅰ. 의 의 ············································································ 304
Ⅱ. 구성요건의 체계 ···························································· 304
제2절 폭발물에 관한 죄
Ⅰ. 의 의 ············································································ 307
Ⅱ. 구성요건의 체계 ···························································· 307
제3절 방화와 실화의 죄
Ⅰ. 서 론 ············································································ 309
Ⅱ. 구성요건의 체계 ···························································· 310
제4절 일수와 수리에 관한 죄
Ⅰ. 서 론 ············································································ 314
Ⅱ. 구성요건의 체계 ···························································· 314
제5절 교통방해의 죄
Ⅰ. 서 론 ············································································ 317
Ⅱ. 구성요건의 체계 ···························································· 317
제2장 공공의 신용에 관한 죄
제1절 문서에 관한 죄
Ⅰ. 서 론 ············································································ 321
Ⅱ. 구성요건의 체계 ···························································· 324
제2절 통화에 관한 죄
Ⅰ. 서 론 ············································································ 335
Ⅱ. 구성요건의 체계 ···························································· 335
제3절 유가증권·인지와 우표에 관한 죄
Ⅰ. 서 론 ············································································ 339
Ⅱ. 구성요건의 체계 ···························································· 340
제4절 인장에 관한 죄
Ⅰ. 서 론 ············································································ 343
Ⅱ. 구성요건의 체계 ···························································· 343
제3장 공중의 건강에 관한 죄
제1절 먹는 물에 관한 죄
Ⅰ. 서 론 ············································································ 345
Ⅱ. 구성요건의 체계 ···························································· 345
제2절 아편에 관한 죄
Ⅰ. 서 론 ············································································ 347
Ⅱ. 구성요건의 체계 ···························································· 347
제4장 사회의 도덕에 관한 죄
제1절 성풍속에 관한 죄
Ⅰ. 서 론 ············································································ 350
Ⅱ. 구성요건의 체계 ···························································· 350
제2절 도박과 복표에 관한 죄
Ⅰ. 서 론 ············································································ 353
Ⅱ. 구성요건의 체계 ···························································· 353
제3절 신앙에 관한 죄
Ⅰ. 서 론 ············································································ 355
Ⅱ. 구성요건의 체계 ···························································· 355
제3편 국가적 법익에 대한 죄
제1장 국가의 존립과 권위에 관한 죄
제1절 내란의 죄
Ⅰ. 서 론 ············································································ 358
Ⅱ. 구성요건의 체계 ···························································· 358
제2절 외환의 죄
Ⅰ. 서 론 ············································································ 361
Ⅱ. 구성요건의 체계 ···························································· 361
제3절 국기에 관한 죄
Ⅰ. 서 론 ············································································ 365
Ⅱ. 구성요건 ········································································ 365
제4절 국교에 관한 죄
Ⅰ. 서 론 ············································································ 366
Ⅱ. 구성요건 ········································································ 366
제2장 국가의 기능에 관한 죄
제1절 공무원의 직무에 관한 죄
Ⅰ. 서 론 ············································································ 368
Ⅱ. 구성요건의 체계 ···························································· 368
제2절 공무방해에 관한 죄
Ⅰ. 서 론 ············································································ 374
Ⅱ. 구성요건의 체계 ···························································· 374
제3절 도주와 범인은닉의 죄
Ⅰ. 서 론 ············································································ 379
Ⅱ. 구성요건의 체계 ···························································· 379
제4절 위증과 증거인멸의 죄
Ⅰ. 서 론 ············································································ 383
Ⅱ. 구성요건의 체계 ···························································· 383
제5절 무고의 죄
Ⅰ. 서 론 ············································································ 388
Ⅱ. 구성요건 ········································································ 388