신호진 형법 형사소송법 1년간 최신판례정리 문형사

제목: 형법·형사소송법 1년간 최신판례정리 (21.7~22.6)
표지:

출판사: 문형사
저자: 신호진
페이지: 152쪽
가격: 12,000원
발행일: 2022년 6월 29일 (출고가능일 6월 29일)
ISBN: 9791166870798

< 서 문 >
"1년간 최신판례"에 대하여…

본서는 2021년 7월부터 2022년 6월까지 1년간의 대법원 형사판례를 정리한 교재이다. 최근 1년 동안에 "전원합의체 판결"이 6개나 나왔고, 특히 형법에서는 '주거침입죄'에 대해서, 형사소송법에서는 '임의제출된 휴대전화'와 관련된 판례가 매우 중요하다.
본서의 특징을 설명하면 다음과 같다.

1. 사실관계의 정리
판례는 구체적이고 특정한 사건에 대한 대법원의 판단이다. 그러므로 그 사건의 사실관계를 모르면서 판결요지만 공부하는 것은 어떤 영화의 줄거리도 모르면서 그 영화에 대해서 논하는 것처럼 실로 무의미하고 어리석은 행동이다. 이에 본서에서는 가장 먼저 판례의 사실관계를 정리하여 소개함으로써 판례를 보다 정확하고 깊게 이해할 수 있도록 하였다. 또한 최근의 문제경향이 "사례형"으로 변화해 가고 있으므로 사례를 중시하는 학습방법의 중요성이 더욱 강조되는 시점이라고 할 수 있다.

2. 쟁점의 부각
어떤 사건이 제1심이나 항소심에서 종결되지 않고 상고심인 대법원까지 올라왔다는 것은 그 사건에서 무엇인가 다투어지는 쟁점이 있었다는 것을 의미한다. 따라서 이러한 쟁점이 무엇인지를 모르고서 판례를 공부하는 것은 어떤 문제의 내용도 모르고서 해설만 읽는 것과 마찬가지로 역시 무의미하다. 이에 본서에서는 판례의 내용을 소개하기 전에 먼저 질문의 형태로 그 사건에서 다투어졌던 쟁점을 세분화하여 구체적으로 부각시킴으로써 판례를 보다 정확하게 이해할 수 있도록 하였다.

3. 중요부분의 강조
판례를 정식으로 공부하기 위해서는 판결문 전체를 읽어야 하겠지만, 그 내용이 방대하기 때문에 대법원은 판례의 핵심적 내용을 "판결요지"의 형태로 정리해서 제공하고 있다. 이에 따라 본서에서는 판결요지는 전체를 수록하였고, 이것만으로 이해가 어려울 경우에는 판결문에서 판결이유를 발췌해서 소개하였다. 그러나 최근에는 이 판결요지의 분량도 매우 많아져서 학습의 부담을 가중시키고 있다. 이에 본서에서는 객관식 문제의 지문으로 출제가 가능하거나 주관식 문제의 답안에 서술해야만 하는 중요부분에 대해서는 언더라인이나 고딕체로 강조함으로써 학습의 능률을 높이고 최종정리시에 신속한 정리가 가능하도록 하였다.

2022. 6. 22.
법학박사 신 호 진

< 목 차 >

…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
1. 위헌결정의 소급효 여부 (大判 2020도68) ···························································· 3
2. 운전면허 취소처분 취소의 소급효 (大判 2019도11826) ········································· 5
3. 공소시효와 소급효금지의 원칙 (大判 2019도5371) ················································ 6
4. 유추해석금지의 원칙 (大判 2020도12017) ···························································· 7
5. 유추해석금지의 원칙 (大判 2017도13182) ···························································· 9
6. 유추해석금지의 원칙 (大判 2021도10981, 大判 2018도18872) ····························· 10
[2] 형법의 시간적 적용범위 ·················································································· 12
7. 형법 제1조 제2항과 동기설 (大判 2017도15175) ················································ 12
[3] 행위의 주체와 객체 ························································································ 13
8. 법인처벌의 근거 (大判 2019도3595) ·································································· 13
9. 양벌규정에 의한 수범자 영역의 확장 (大判 2020도1942) ····································· 14
[4] 부작위범 ······································································································· 16
10. 진정부작위범의 공동정범의 성립요건 (大判 2018도12973) ································· 16
11. 진정부작위범의 공동정범의 성립요건 (大判 2021도11110) ································· 17
[5] 정당방위 ······································································································· 18
12. 싸움과 정당방위 (大判 2020도15812) ······························································ 18
[6] 정당행위 ······································································································· 19
13. 정당행위 (大判 2017도10634) ········································································ 19
14. 사회상규에 위배되지 아니하는 행위 (大判 2021도9680) ····································· 21
15. 모욕과 정당행위 (大判 2020도14576) ······························································ 23
16. 모욕과 정당행위 (大判 2016도88) ··································································· 25
[7] 위법성의 인식과 금지착오 ··············································································· 26
17. 법률의 착오와 정당한 이유 (大判 2021도10903) ··············································· 26
[8] 종 범 ··········································································································· 28
18. 방조의 성립여부 (大判 2017도19025, 전원합의체 판결) ····································· 28
19. 방조행위와 정범행위 사이의 인과관계 등 (大判 2015도12632) ··························· 31
[9] 공범과 신분 ·································································································· 34
20. 공범과 신분 (大判 2021도5000) ······································································ 34
[10] 죄수론 ········································································································ 35
21. 음란물 제작과 소지의 관계 (大判 2021도2993) ················································· 35
22. 형법 제39조 제1항의 적용요건 (大判 2021도8719) ··········································· 36
23. 형법상 몰수의 대상인 '물건'의 의미 (大判 2021도7168) ···································· 37
24. 형법 제48조의 몰수의 대상 (大判 2020도10970) ·············································· 38
[11] 누 범 ········································································································· 39
25. 누범기간의 기산점 (大判 2020도8728) ····························································· 39
26. 두 개의 징역형 중 하나의 형 집행을 마친 후 죄를 범한 경우 (大判 2021도8764) ······ 40

…… 형 법 각 론 ……
[1] 상해와 폭행의 죄 ··························································································· 42
1. 자동차 운전자 폭행 등 죄에서 '자동차'의 의미 (大判 2022도1013) ······················· 42
[2] 강요의 죄 ····································································································· 43
2. 강요죄의 폭행의 의미 (大判 2018도1346) ·························································· 43
[3] 약취와 유인의 죄 ··························································································· 44
3. 부작위에 의한 미성년자약취 (大判 2019도16421) ··············································· 44
[4] 강간과 추행의 죄 ··························································································· 46
4. 주거침입유사강간죄의 주체 및 실행의 착수시기 (大判 2020도17796) ···················· 46
5. 강제추행죄에서 추행의 의미 (大判 2021도7538) ················································· 48
6. 동성인 군인 사이의 추행행위의 가벌성 (大判 2019도3047, 전원합의체 판결) ········· 50
[5] 명예에 관한 죄 ······························································································ 55
7. 명예훼손죄에서 '사실적시'의 의미 (大判 2020도12861) ······································· 55
8. 명예훼손의 고의와 사실의 적시 (大判 2021도17744) ··········································· 57
9. 형법 제310조의 적용요건 (大判 2021도6416) ····················································· 58
[6] 신용·업무와 경매에 관한 죄 ············································································ 59
10. 업무방해죄에서 '허위사실 유포'의 의미와 판단방법 (大判 2021도6634) ··············· 59
11. 업무방해죄에서 위력의 의미 및 기수시기 (大判 2016도3986) ····························· 61
[7] 주거침입의 죄 ······························································································· 62
12. 공동주거자가 다른 공동주거자의 의사에 반하여 들어간 경우 (大判 2020도6085, 전원합의체 판결) ······································································································· 62
13. 주거침입죄에서 '침입'의 의미 (大判 2021도15507) ············································ 65
14. 일반적 출입이 허용된 장소에 불법행위를 목적으로 들어간 경우 (大判 2017도18272, 전원합의체 판결) ································································································· 67
15. 타인이 공동주거자 일부의 동의를 얻어 들어간 경우 (大判 2020도12630, 전원합의체 판결) ·····················