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2019년 하반기부터 2022년 상반기까지 총 3년간의 대법원 판례를 정리한 교재이다. 가장 먼저 판례의 사실관계를 정리하여 소개함으로써 판례를 보다 정확하고 깊게 이해할 수 있도록 하였고, 판례의 내용을 소개하기 전에 먼저 질문의 형태로 그 사건에서 다투어졌던 쟁점을 세분화하여 구체적으로 부각시킴으로써 판례를 보다 정확하게 이해할 수 있도록 하였다.

…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
1. 위임입법의 한계 (大判 2018도7989) ··································································· 3
2. 헌법불합치결정의 성격 및 효력 (大判 2017도8610) ·············································· 6
3. 위헌결정의 소급효가 인정되지 않는 경우 (大判 2020도68) ···································· 7
4. 음주운전전과의 계산과 소급효금지의 원칙 (大判 2020도7154) ······························· 8
5. 운전면허 취소처분 취소의 소급효 (大判 2019도11826) ········································· 9
6. 공소시효의 정지·연장·배제와 소급효 (大判 2020도3694) ······································ 10
7. 명확성의 원칙 (大判 2016도1306) ····································································· 12
8. 유추해석금지의 원칙 (大判 2017도13182) ·························································· 13
9. 유추해석금지의 원칙 (大判 2020도12017) ·························································· 15
[2] 형법의 시간적 적용범위 ·················································································· 19
10. 형법 제1조 제2항과 동기설 (大判 2017도15175) ·············································· 19
[3] 행위의 주체와 객체 ························································································ 20
11. 법인처벌의 근거 (大判 2019도3595) ································································ 20
12. 양벌규정에 의한 수범자 영역의 확장 (大判 2020도1942) ··································· 21
[4] 부작위범 ······································································································· 23
13. 진정부작위범의 공동정범의 성립요건 (大判 2018도12973) ································· 23
[5] 정당방위 ······································································································· 25
14. 싸움과 정당방위 (大判 2020도15812) ······························································ 25
[6] 정당행위 ······································································································· 26
15. 정당행위 (大判 2017도10634) ········································································ 26
16. 노동조합 조합활동의 정당성 인정요건 (大判 2017도2478) ·································· 28
17. 쟁의행위의 정당성 (大判 2015도1927) ····························································· 30
18. 사회상규에 위배되지 아니하는 행위 (大判 2021도9680) ····································· 32
[7] 위법성의 인식과 금지착오 ··············································································· 33
19. 법률의 착오와 정당한 이유 (大判 2021도10903) ··············································· 33
[8] 불능미수 ······································································································· 35
20. 불능미수의 성립요건 (大判 2019도97) ····························································· 35
[9] 정범·공범의 일반이론 ····················································································· 36
21. 대향범과 공범규정의 적용 여부 (大判 2016도3048) ··········································· 36
[10] 종 범 ········································································································· 38
22. 방조의 성립여부 (大判 2017도19025, 전원합의체 판결) ····································· 38
23. 방조행위와 정범행위 사이의 인과관계 등 (大判 2015도12632) ··························· 41
[11] 공범과 신분 ································································································ 44
24. 공범과 신분 (大判 2021도5000) ······································································ 44
[12] 죄수론 ········································································································ 45
25. 음란물 제작과 소지의 관계 (大判 2021도2993) ················································· 45
26. 포괄일죄와 실체적 경합범의 구별기준 (大判 2020도1355) ·································· 46
27. 재심대상사건과 재심판결 확정 전에 범한 범죄의 관계 (大判 2018도20698, 전원합의체 판결) ·················································································································· 49
28. 형법 제39조 제1항의 적용요건 (大判 2021도8719) ··········································· 51
[13] 형벌론 ········································································································ 52
29. 형법상 몰수의 대상인 ‘물건’의 의미 (大判 2021도7168) ···································· 52
30. 형법 제48조의 몰수의 대상 (大判 2020도10970) ·············································· 53
31. 형의 임의적 감경의 방법 (大判 2018도5475, 전원합의체 판결) ··························· 54
32. 누범기간의 기산점 (大判 2020도8728) ····························································· 56
33. 두 개의 징역형 중 하나의 형 집행을 마친 후 죄를 범한 경우 (大判 2021도8764) ··· 57
34. 특가법 제5조의4 제5항의 절도와 누범가중 (大判 2019도18947) ························· 58
35. ‘특정범죄 가중처벌 등에 관한 법률’상의 누범전과의 계산방법 (大判 2019도17381) ···· 59
36. ‘특정범죄 가중처벌 등에 관한 법률’ 제5조의4 제5항의 누범전과의 의미 (大判 2019도18891) ··············································································································· 61
37. 사회봉사명령시 원상회복명령의 부과 여부 (大判 2017도18291) ·························· 63

…… 형 법 각 론 ……
[1] 상해와 폭행의 죄 ··························································································· 65
1. 자동차 운전자 폭행 등 죄에서 ‘자동차’의 의미 (大判 2022도1013) ······················· 65
[2] 강요의 죄 ····································································································· 67
2. 강요죄의 폭행의 의미 (大判 2018도1346) ·························································· 67
[3] 체포와 감금의 죄 ··························································································· 68
3. 체포죄의 실행의 착수시기와 기수시기 (大判 2016도18713) ·································· 68
[4] 약취·유인 및 인신매매의 죄 ············································································ 69
4. 부작위에 의한 미성년자약취 (大判 2019도16421) ··············································· 69
[5] 강간과 추행의 죄 ··························································································· 71
5. 주거침입유사강간죄의 주체 및 실행의 착수시기 (大判 2020도17796) ···················· 71
6. 강제추행죄에서의 폭행과 추행의 정도 (大判 2019도15994) ·································· 73
7. 강제추행죄에서 추행의 의미 (大判 2021도7538) ················································· 76
8. 동성인 군인 사이의 추행행위의 가벌성 (大判 2019도3047, 전원합의체 판결) ········· 77
9. 알코올 블랙아웃(black out)과 심신상실 (大判 2018도9781) ································· 82
10. 위계에 의한 간음죄에서 ‘위계’의 의미 (大判 2015도9436, 전원합의체 판결) ········ 84
11. 위력에 의한 심신미약자 추행죄의 성립 여부 (大判 2019도3341) ························· 87
12. 업무상 위력에 의한 추행의 객체 등 (大判 2020도5646) ····································· 89
13. 공중 밀집장소에서의 추행의 의미 (大判 2015도7102) ········································ 90
[6] 명예에 관한 죄 ······························································································ 94
14. 전파가능성과 공연성 (大判 2020도5813, 전원합의체 판결) ································· 94
15. 명예훼손죄에서 ‘사실적시’의 의미 (大判 2020도12861) ···································· 100
16. 공적인 인물에 대한 명예훼손 (大判 2016도14995) ·········································· 102
17. ‘사실을 드러내어’의 의미와 정도 (大判 2019도12750) ····································· 104
18. 명예훼손의 고의와 사실의 적시 (大判 2021도17744) ······································· 106
19. 형법 제310조의 적용요건 (大判 2021도6416) ················································· 107
20. ‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계 (大判 2018도15868) ······ 108
21. ‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계 (大判 2020도11471) ··········· 110
22. 모욕과 사회상규에 위배되지 않는 행위 (大判 2017도17643) ·································· 113
23. 모욕과 사회상규에 위배되지 않는 행위 (大判 2020도14576) ·································· 115
24. 모욕과 사회상규에 위배되지 않는 행위 (大判 2016도88) ·································· 117
[7] 신용·업무와 경매에 관한 죄 ·········································································· 118
25. 업무방해죄에서 ‘허위사실 유포’의 의미와 판단방법 (大判 2021도6634) ···················· 118
26. 위계의 의미 및 업무방해죄의 기수시기 (大判 2016도14415) ····························· 120
27. 업무담당자의 심사의무와 업무방해죄의 기수시기 (大判 2017도19283) ··············· 121
28. 업무방해죄에서 위력의 의미 및 기수시기 (大判 2016도3986) ··························· 123
[8] 주거침입의 죄 ····························································································· 125
29. 공동주거자가 다른 공동주거자의 의사에 반하여 들어간 경우 (大判 2020도6085, 전원합의체 판결) ····································································································· 125
30. 주거침입죄의 객체와 위요지 (大判 2019도16484) ············································ 128
31. 주거침입죄에서 ‘침입’의 의미 (大判 2021도15507) ·········································· 129
32. 일반적 출입이 허용된 장소에 불법행위를 목적으로 들어간 경우 (大判 2017도18272, 전원합의체 판결) ······························································································· 131
33. 공동주택 출입에 대한 동의권자 (大判 2017도21323) ······································· 134
34. 타인이 공동주거자 일부의 동의를 얻어 들어간 경우 (大判 2020도12630, 전원합의체 판결) ················································································································ 136
[9] 강도의 죄 ··································································································· 139
35. 강도죄에서 ‘재산상 이익’의 의미 (大判 2020도7218) ······································· 139
36. 강도죄와 불법이득의사 (大判 2020도4539) ····················································· 140
[10] 사기의 죄 ·································································································· 141
37. 기망행위에 의하여 국가적·공공적 법익을 침해한 경우 (大判 2019도2003) ················· 141
38. 규정을 위반한 공사도급계약체결과 사기죄 (大判 2015도10570) ························ 142
39. 행정법규 등의 위반과 기망행위 (大判 2016도16343) ······································· 144
40. 요양급여비용에 대한 사기죄의 성립 여부 (大判 2019도1839) ··························· 146
41. 부작위에 의한 기망 (大判 2021도8468) ························································· 147
42. 부작위에 의한 기망과 고지의무 (大判 2018도13696) ······································· 148
[11] 횡령의 죄 ·································································································· 150
43. 부동산에 대한 보관자의 지위 (大判 2018도18010) ·········································· 150
44. 채권양도인이 양도한 채권을 추심하여 임의로 처분한 경우 (大判 2017도3829, 전원합의체 판결) ········································································································ 151
45. 채권 양도담보계약에서 채무자의 지위 (大判 2020도12927) ······························ 153
46. 횡령죄의 객체 (大判 2019도9773) ································································· 154
47. 양자간 명의신탁과 횡령죄 (大判 2016도18761, 전원합의체 판결) ······················ 155
48. 법인·단체의 자금으로 대표자의 소송비용을 지급한 경우 (大判 2016도5816) ······· 157
[12] 배임의 죄 ·································································································· 158
49. 지입회사 운영자와 지입차주의 관계 (大判 2018도14365) ································· 158
50. 배임죄에서 ‘타인의 사무를 처리하는 자’의 의미 (大判 2014도9907) ·················· 159
51. 착오로 이체된 가상자산을 영득한 경우 (大判 2020도9789) ······························ 161
52. 동산 저당권 설정의무와 사무의 타인성 (大判 2020도6258, 전원합의체 판결) ····· 163
53. 채무자의 ‘담보 목적 채권의 담보가치를 유지·보전할 의무’의 성격 (大判 2020도3514) ························································································································· 165
54. 채무자의 동산 양도담보 목적물 보관의무 (大判 2019도9756, 전원합의체 판결) ·· 167
55. 채권양도담보계약에서 채무자의 지위 (大判 2015도5184) ································· 170
56. 채무자의 ‘동산채권담보법’상 담보로 제공된 동산에 대한 보관의무 (大判 2019도14770, 전원합의체 판결) ···················································································· 171
57. 배임죄에서 ‘재산상 이익 취득’과 ‘재산상 손해 발생’의 관계 (大判 2016도3452) ························································································································· 173
58. 부작위에 의한 업무상배임죄의 실행의 착수시기 (大判 2020도15529) ················ 175
59. 매도인이 매수인에게 가등기를 해 준 후 이중매매를 한 경우 (大判 2019도16228) ························································································································· 176
60. 주권발행 전 주식의 이중양도 (大判 2015도6057) ············································ 177
61. 수분양권 매도인의 지위 (大判 2014도12104) ·················································· 178
62. 채무자의 저당권설정의무 및 부동산 양도담보설정의무의 성격 (大判 2019도14340, 전원합의체 판결) ·································································································· 179
63. 배임수재죄에서 ‘부정한 청탁’ 및 ‘제3자’의 의미 (大判 2019도17102) ················ 181
[13] 손괴의 죄 ·································································································· 183
64. ‘기타 방법’에 의한 재물손괴죄 (大判 2019도13764) ········································ 183
65. 재물손괴죄에서 ‘효용을 해하는 것’의 의미 (大判 2017도20455) ························ 184
[14] 권리행사를 방해하는 죄 ·············································································· 186
66. 권리행사방해죄에서 ‘자기의 물건’의 의미 (大判 2020도9801) ··························· 186
67. 채무자가 근저당권의 목적물을 처분한 경우 (大判 2020도14735) ······················ 188
[15] 공안을 해하는 죄 ························································································189
68. 범죄를 목적으로 하는 단체 및 집단의 의미 (大判 2019도16263) ······················ 189
[16] 유가증권에 관한 죄 ···················································································· 191
69. 구 부정수표단속법 제5조의 수표 위조·변조의 의미 (大判 2019도12022) ············ 191
[17] 문서에 관한 죄 ·························································································· 192
70. 사문서와 공문서의 구별 (大判 2020도14666) ·················································· 192
71. 명의신탁에서 신탁자가 수탁자 명의의 문서를 작성할 권한의 유무 (大判 2021도17197) ············································································································· 193
72. 문서 위조의 정도 (大判 2019도8443) ···························································· 194
73. 문서 변조의 대상 (大判 2020도3809) ···························································· 196
74. 공문서변조의 정도 (大判 2018도19043) ························································· 197
75. 사전자기록위작죄에서 ‘위작’의 의미 (大判 2019도11294, 전원합의체 판결) ········ 198
76. 공전자기록위작·변작죄의 객체와 유추해석금지의 원칙 (大判 2016도19170) ········ 204
77. 허위공문서작성죄에서 ‘허위’의 대상 (大判 2019도18394) ································· 206
78. 공전자기록 등 불실기재죄에서 ‘불실의 사실’의 의미 (大判 2019도7729) ············ 207
79. 자동차 중간생략형 명의신탁 (大判 2019도12042) ············································ 209
80. 공문서부정행사죄의 객체 (大判 2018도2560) ·················································· 210
[18] 인장에 관한 죄 ·························································································· 211
81. 서명 위조의 정도 (大判 2020도14045) ··························································· 211
[19] 성풍속에 관한 죄 ······················································································· 212
82. 공연음란죄에서 음란성의 판단기준 (大判 2019도14056) ··································· 212
[20] 도박과 복표에 관한 죄 ··············································································· 214
83. 도박공간개설죄와 ‘영리의 목적’ (大判 2020도8978) ········································· 214
[21] 공무원의 직무에 관한 죄 ············································································ 215
84. 공무상비밀누설죄에서 ‘누설’의 의미 (大判 2021도2486) ·································· 215
85. 직권남용죄와 강요죄의 성립요건 (大判 2018도2236, 전원합의체 판결) ·············· 217
86. 직권남용죄와 강요죄의 성립요건 (大判 2019도5186) ······································· 222
87. 실무자의 행위가 ‘의무 없는 일’에 해당하는지의 판단기준 (大判 2019도11698) ···· 225
88. 직권남용과 의무 없는 일 (大判 2019도17879) ················································ 227
89. 직권남용의 의미 및 판단기준 (大判 2020도12583) ·········································· 228
90. 공무원이 횡령한 자금을 공범자끼리 수수한 경우 (大判 2019도11766) ··············· 231
91. 뇌물수수죄와 제3자뇌물수수죄 및 강요죄의 성립 여부 (大判 2018도13792,2018도2738, 전원합의체 판결) ······················································································ 232
92. 공여자와 수뢰자 사이의 뇌물의 직접 수수 여부 (大判 2017도12389) ················ 237
93. 수뢰후부정처사죄에서 부정행위의 시기 (大判 2020도12103) ····························· 238
[22] 공무방해에 관한 죄 ···················································································· 239
94. 공무집행방해죄에서 직무집행의 적법성 (大判 2021도13883) ····························· 239
95. 공무집행의 적법성의 요건과 판단기준 (大判 2018도2993) ································ 241
96. 위계에 의한 공무집행방해죄와 불실기재여권행사죄 (大判 2020도12239) ············ 243
97. 위계에 의한 공무집행방해죄와 건조물침입죄 (大判 2018도15213) ····················· 244
98. 위계에 의한 공무집행방해죄의 기수시기 (大判 2018도18582) ··························· 246
99. 공무소에서 사용하는 전자기록의 의미 (大判 2015도19296) ······························ 248
[23] 위증과 증거인멸의 죄 ················································································· 250
100. 증거위조죄에서 ‘증거’ 및 ‘위조’의 개념 (大判 2020도2642) ···························· 250
[24] 무고의 죄 ·································································································· 252
101. 무고죄에서 ‘허위’의 증명 정도 (大判 2018도2614) ········································ 252
102. 무고죄에서 자백의 절차와 시기 (大判 2020도13077) ····································· 254

참고판례 ··········································································································· 255
판례색인 ··········································································································· 265

〈 서 문 〉

“3년간 최신판례”에 대하여…

본서는 2019년 하반기부터 2022년 상반기까지 총 3년간의 대법원 판례를 정리한 교재이다. 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.

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. 23.
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