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2021년 7월부터 2022년 6월까지 1년간의 대법원 형사판례를 정리한 교재이다. 가장 먼저 판례의 사실관계를 정리하여 소개함으로써 판례를 보다 정확하고 깊게 이해할 수 있도록 하였다. 또한, 판례의 내용을 소개하기 전에 먼저 질문의 형태로 그 사건에서 다투어졌던 쟁점을 세분화하여 구체적으로 부각시킴으로써 판례를 보다 정확하게 이해할 수 있도록 하였다. 판결요지는 전체를 수록하였고, 판결문에서 판결이유를 발췌해서 소개하였다.

…… 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) ·················································································································· 70
[8] 강도의 죄 ····································································································· 73
16. 강도죄와 불법이득의사 (大判 2020도4539) ······················································· 73
[9] 사기의 죄 ····································································································· 75
17. 행정법규 등의 위반과 기망행위 (大判 2016도16343) ········································· 75
18. 부작위에 의한 기망 (大判 2021도8468) ··························································· 77
[10] 횡령의 죄 ··································································································· 78
19. 부동산에 대한 보관자의 지위 (大判 2018도18010) ············································ 78
20. 채권양도인이 양도한 채권을 추심하여 임의로 처분한 경우 (大判 2017도3829, 전원합의체 판결) ·········································································································· 79
[11] 배임의 죄 ··································································································· 81
21. 지입회사 운영자와 지입차주의 관계 (大判 2018도14365) ··································· 81
22. 착오로 이체된 가상자산과 배임죄의 주체 (大判 2020도9789) ····························· 82
23. 채무자의 ‘담보 목적 채권의 담보가치를 유지·보전할 의무’의 성격 (大判 2020도3514) ·························································································································· 84
24. 채권양도담보계약에서 채무자의 지위 (大判 2015도5184) ··································· 86
25. 배임죄에서 ‘재산상 이익 취득’과 ‘재산상 손해 발생’의 관계 (大判 2016도3452) ···· 87
26. 부작위에 의한 업무상배임죄의 실행의 착수시기 (大判 2020도15529) ·················· 89
27. 수분양권 매도인의 지위 (大判 2014도12104) ··················································· 90
28. 배임수재죄에서 ‘부정한 청탁’ 및 ‘제3자’의 의미 (大判 2019도17102) ················· 92
[12] 손괴의 죄 ··································································································· 94
29. ‘기타 방법’에 의한 재물손괴죄 (大判 2019도13764) ·········································· 94
[13] 문서에 관한 죄 ···························································································· 95
30. 명의신탁에서 신탁자가 수탁자 명의의 문서를 작성할 권한의 유무 (大判 2021도17197) ··············································································································· 95
31. 허위공문서작성죄에서 ‘허위’의 대상 (大判 2019도18394) ··································· 97
[14] 공무원의 직무에 관한 죄 ·············································································· 98
32. 공무상비밀누설죄에서 ‘누설’의 의미 (大判 2021도2486) ···································· 98
[15] 공무방해의 죄 ··························································································· 100
33. 공무집행방해죄에서 직무집행의 적법성 (大判 2021도13883) ····························· 100
34. 공무집행의 적법성의 요건과 판단기준 (大判 2018도2993) ································ 102
35. 위계에 의한 공무집행방해죄와 건조물침입죄 (大判 2018도15213) ····················· 104
36. 위계에 의한 공무집행방해죄와 불실기재여권행사죄 (大判 2020도12239) ············ 106

…… 형 법 소 송 법 ……
[1] 대물적 강제수사 ·························································································· 107
1. 압수와 사건과의 관련성 (大判 2021도3756) ····················································· 107
2. 전자정보에 대한 압수의 방법 (大決 2021모1586) ·············································· 109
3. 헌법불합치결정과 그에 따른 개정 형사소송법의 소급적용 여부 (大判 2018도13458) ···· 111
4. 임의제출된 정보저장매체에 대한 압수의 범위 (大判 2016도348, 전원합의체 판결) ·· 113
5. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2019도4938) ··········· 118
6. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2021도11170) ········· 120
[2] 공소와 공소권이론 ······················································································· 125
7. 공소권남용 (大判 2016도14772) ····································································· 125
[3] 공소제기의 방식 ·························································································· 126
8. 공소제기의 방식과 하자의 치유 (大判 2019도17150) ········································· 126
9. 공소제기의 방식 (大判 2019도16259) ······························································ 127
[4] 공소시효 ····································································································· 128
10. 공소시효의 기산점 (大判 2017도18693) ························································· 128
[5] 공판심리의 범위 ·························································································· 129
11. 공소장변경허가신청서 부본을 송달하지 않은 경우 (大判 2019도7217) ··············· 129
[6] 소송행위 ····································································································· 131
12. 재판확정기록의 열람·등사와 정보공개법에 의한 공개청구의 관계 (大決 2021모3175) ·· 131
[7] 증거조사와 강제처분 ···················································································· 133
13. 증인신문시 반대신문의 보장 (大判 2016도17054) ············································ 133
[8] 증명의 기본원칙 ·························································································· 135
14. 증명과 증명력 판단 (大判 2018도19472, 2018전도126) ··································· 135
15. 소추조건의 존재에 대한 증명방법 (大判 2021도404) ········································ 136
16. 검사의 사전면담 후 증인의 증언의 신빙성 (大判 2020도15891) ························ 137
[9] 위법수집증거배제법칙 ··················································································· 139
17. 외국인에 대한 체포·구속시 영사통보권을 고지하지 않은 경우 (大判 2021도17103) ···· 139
[10] 전문법칙 ··································································································· 141
18. 「성폭력처벌법」상 영상녹화물의 증거능력 (大判 2021도14530, 2021전도143) ····· 141
[11] 상소의 일반이론 ························································································ 143
19. 일부상소에 대한 상소심의 파기 범위 (大判 2021도13108) ································ 143
20. 파기환송과 불이익변경금지의 원칙 (大判 2021도1282) ···································· 145
[12] 항 소 ········································································································ 146
21. 변론종결 후 불리한 양형자료가 제출된 경우 법원의 조치 (大判 2021도5777) ····· 146
[13] 상 고 ········································································································ 148
22. 양형부당과 상고이유 (大判 2021도16719) ······················································ 148

※ 참고판례 ······································································································· 149

[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