2022년판 신호진 형법요론 문형사

제목: 2022년판 형법요론
표지:

출판사: 문형사
저자: 신호진
페이지: 1568쪽
가격: 67,000원
발행일: 2022년 1월 24일 (출고가능일 1월 24일)
ISBN: 979-11-6687-048-4

< 서 문 >

2022년판 형법요론에 대해서

형법요론이 형법의 기본교재로서 지향하는 점은, 첫째 이론기본서로서의 역할, 둘째 판례기본서로서의 역할, 그리고 셋째 사례기본서로서의 역할이다.

1. 형법 기본이론의 충실한 정리
형법 공부를 시작한다면 가장 먼저 소화해야 하는 것이 "형법이론"이다. 이는 수학에 비유하자면 "기본공식"과 같다. 공식을 모르고서는 문제를 풀 수 없는 것처럼, 형법의 기본이론을 알지 못하고서는 "판례"를 이해하기가 어렵고, 나아가 "사례형 문제"나 "실제사건"도 해결할 수 없다. 본서는 기출문제 분석을 기초로 문제 해결에 필요한 이론들을 꾸준히 증감 보완함으로써 형법의 필수이론에 대한 기본서가 될 수 있도록 하였다.

2. 판례의 체계적 정리
본서에서는 출제가능한 판례들을 형법의 이론적 체계에 따라 일목요연하게 정리함으로써 판례교재를 별도로 볼 필요가 없도록 하였다. 특히 최근 5년간의 판례에 대해서는 최신이라고 표시하여 최신판례의 높은 출제비중에 효율적으로 대비할 수 있도록 하였고, 같아 보이지만 다른 판례에 대해서는 비교로 정리하여 혼동하지 않도록 하였다. 또한 동일한 쟁점에 대해서는 "긍정한 판례"와 "부정한 판례"를 나누어 정리하였다. 최신판례는 2021년 12월 판례공보까지 수록하였다. 그리고 법학전문대학원협의회가 선정 발표한 "표준판례"도 모두 반영하였고, 표준이라고 표시하였다. 초학자의 경우에는 먼저 "표준판례"와 "5년간의 최신판례"를 중심으로 공부하고, 이에 익숙해진 다음에 다른 판례로 학습범위를 넓히는 방법을 추천한다.

3. 사례형 문제의 체계적 정리
사례형 문제(Case)의 출제경향을 파악하고 답안작성방법을 익힐 수 있도록 2012년부터 2021년까지의 변호사시험, 2001년 이후의 사법시험, 그리고 2011년부터 2021년까지의 5급공채시험 문제 중에서 논점별로 가장 표준적인 130문제를 선정하여 수록하였다. 해설은 "문제의 제기?학설과 판례 및 결론?문제의 해결"이라는 사례형 문제 해결의 기본적인 방식에 맞추어 답안의 골격을 제시하였는데, 각자 답안지에 정식으로 답안작성연습을 해 본다면 사례형 문제에 대해서 큰 자신감을 가질 수 있을 것이다. 또한 최정정리를 할 때 적중률이 높은 매우 효율적인 자료가 될 수 있을 것이다.

아무리 시험제도와 출제경향 등이 변경될지라도 실력이 뛰어난 사람이 승자가 된다는 것 자체는 절대로 변경되지 않는다! 아무쪼록 2022년판 형법요론이 독자 여러분의 꿈의 실현에 조금이나마 도움이 되기를 진심으로 기원하면서…

2022년 1월 5일
법학박사 신 호 진

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형법총론

제1편 형법의 일반이론

제1장 형법의 기본개념
제1절 형법의 의의와 성격 ······················································································ 5
[1] 형법의 의의/ 5 [2] 형법의 성격/ 5
제2절 형법의 기능 ································································································· 7
[1] 규제적 기능/ 7 [2] 보호적 기능/ 7 [3] 보장적 기능/ 8
제3절 형법의 발전 ································································································· 9
[1] 형법의 역사/ 9 [2] 위험사회와 위험형법/ 9

제2장 형법의 기본원리
제1절 죄형법정주의 ······························································································ 11
[1] 죄형법정주의의 의의/ 11 [2] 죄형법정주의의 연혁과 사상적 배경/ 12
[3] 죄형법정주의의 현대적 의의/ 12 [4] 죄형법정주의의 내용/ 13
제2절 형법이론 ···································································································· 41
[1] 형법학파/ 41 [2] 형벌이론/ 44 [3] 범죄이론/ 46

제3장 형법의 적용범위
제1절 형법의 시간적 적용범위 ··············································································· 48
[1] 서 설/ 48 [2] 형법의 태도/ 48 [3] 한시법/ 59
제2절 형법의 장소적 적용범위 ··············································································· 64
[1] 서 설/ 64 [2] 형법의 태도/ 65
제3절 형법의 인적 적용범위 ·················································································· 71
[1] 의 의/ 71 [2] 예 외/ 71

제2편 범 죄 론

제1장 범죄론의 기초
제1절 범죄의 의의와 종류 ····················································································· 75
[1] 범죄의 의의와 본질/ 75 [2] 범죄의 성립요건·처벌조건·소추조건/ 76
[3] 범죄의 종류/ 79
제2절 행위론 ······································································································· 87
[1] 서 설/ 87 [2] 행위론의 종류/ 88
제3절 범죄체계론 ································································································· 91
[1] 범죄체계론의 의의/ 91 [2] 범죄체계론의 현황/ 92
제4절 행위의 주체와 객체 ····················································································· 93
[1] 행위의 주체/ 93 [2] 행위의 객체와 보호의 객체/ 102

제2장 구성요건론
제1절 구성요건의 일반이론 ················································································· 104
[1] 구성요건의 의의/ 104 [2] 구성요건과 위법성의 관계/ 105
[3] 구성요건의 요소/ 106 [4] 구성요건해당성배제사유/ 107
제2절 결과반가치와 행위반가치 ··········································································· 108
[1] 결과반가치와 행위반가치/ 108 [2] 결과반가치론과 행위반가치론/ 108
[3] 결과반가치와 행위반가치의 내용/ 110
제3절 부작위범 ·································································································· 112
[1] 부작위/ 112 [2] 부작위범/ 114
[3] 부진정부작위범의 구성요건/ 118 [4] 관련문제/ 128
제4절 인과관계와 객관적 귀속 ············································································· 131
[1] 서 설/ 131 [2] 인과관계에 관한 학설/ 133
[3] 객관적 귀속이론/ 142 [4] 형법 제17조의 해석/ 149
제5절 구성요건적 고의 ······················································································· 150
[1] 고의의 의의와 본질/ 150 [2] 고의의 체계적 지위/ 151
[3] 고의의 내용/ 152 [4] 고의의 종류/ 154
제6절 구성요건적 착오 ······················································································· 162
[1] 서 설/ 162 [2] 구성요건적 착오의 유형/ 164
[3] 구성요건적 착오에 관한 학설과 판례/ 165
[4] 가감적 구성요건요소에 대한 착오/ 170
[5] 인과관계의 착오와 개괄적 고의/ 172 [6] 관련문제/ 177
제7절 과실범 ····································································································· 178
[1] 서 설/ 178 [2] 과실범의 성립요건/ 182
[3] 객관적 주의의무의 제한원리/ 191 [4] 관련문제/ 198
제8절 결과적 가중범 ·························································································· 199
[1] 서 설/ 199 [2] 결과적 가중범의 성립요건/ 202
[3] 관련문제/ 208

제3장 위법성론
제1절 위법성의 일반이론 ···················································································· 214
[1] 위법성의 의의/ 214 [2] 위법성의 본질/ 215
[3] 위법성의 평가방법/ 216 [4] 위법성조각사유/ 217
제2절 정당방위 ·································································································· 223
[1] 서 설/ 223 [2] 정당방위의 성립요건/ 224
[3] 정당방위의 효과/ 236 [4] 과잉방위와 오상방위/ 237
제3절 긴급피난 ·································································································· 243
[1] 서 설/ 243 [2] 긴급피난의 성립요건/ 245
[3] 긴급피난의 효과/ 251 [4] 과잉피난과 오상피난/ 252
[5] 의무의 충돌/ 253
제4절 자구행위 ·································································································· 257
[1] 서 설/ 257 [2] 자구행위의 성립요건/ 258
[3] 자구행위의 효과/ 262 [4] 과잉자구행위와 오상자구행위/ 263
제5절 피해자의 승낙 ·························································································· 265
[1] 양 해/ 265 [2] 피해자의 승낙/ 267
[3] 추정적 승낙/ 272
제6절 정당행위 ·································································································· 276
[1] 서 설/ 276 [2] 법령에 의한 행위/ 277
[3] 업무로 인한 행위/ 286 [4] 사회상규에 위배되지 않는 행위/ 290

제4장 책임론
제1절 책임의 일반이론 ······················································································· 300
[1] 서 설/ 300 [2] 책임의 근거/ 301
[3] 책임의 본질/ 303 [4] 책임의 판단/ 306
제2절 책임능력 ·································································································· 308
[1] 서 설/ 308 [2] 책임무능력자/ 309
[3] 한정책임능력자/ 314 [4] 원인에 있어서 자유로운 행위/ 316
제3절 위법성의 인식과 금지착오 ········································································· 324
[1] 위법성의 인식/ 324 [2] 금지착오/ 328
[3] 위법성조각사유의 전제사실에 대한 착오/ 341
제4절 기대가능성 ······························································································· 346
[1] 기대가능성이론/ 346 [2] 강요된 행위/ 351
[3] 초법규적 책임조각사유/ 355

제5장 미수론
제1절 미수범의 일반이론 ···················································································· 357
[1] 범죄실현의 단계/ 357 [2] 미수범의 처벌근거/ 359
제2절 장애미수 ·································································································· 361
[1] 의 의/ 361 [2] 장애미수의 성립요건/ 361
[3] 장애미수의 처벌/ 368 [4] 관련문제/ 369
제3절 중지미수 ·································································································· 370
[1] 서 설/ 370 [2] 중지미수의 성립요건/ 371
[3] 중지미수의 처벌/ 379 [4] 관련문제/ 380
제4절 불능미수 ·································································································· 385
[1] 서 설/ 385 [2] 불능미수의 성립요건/ 386
[3] 불능미수의 처벌 및 관련문제/ 392
제5절 예비죄 ···································································································· 395
[1] 서 설/ 395 [2] 예비죄의 법적 성격/ 396
[3] 예비죄의 성립요건/ 397 [4] 관련문제/ 400

제6장 정범 및 공범론
제1절 정범·공범의 일반이론 ················································································ 403
[1] 서 설/ 403 [2] 정범과 공범의 구별/ 408
[3] 공범의 종속성과 처벌근거/ 414
제2절 간접정범 ·································································································· 418
[1] 서 설/ 418 [2] 간접정범의 성립요건/ 419
[3] 간접정범의 처벌/ 425 [4] 관련문제/ 426
[5] 특수교사·방조/ 429
제3절 공동정범 ···························································