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- 독자대상 : 변호사 시험 준비생
- 구성 : 이론
- 특징 : 2020년 1월~2020년 6월 판례공보 및 미간행 판례 수록

…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
ㆍ위임입법의 한계(大判 2018도7989) ········································································ 3
[2] 누 범 ············································································································· 6
ㆍ「특정범죄 가중처벌 등에 관한 법률」상의 누범전과의 계산방법(大判 2019도17381) ················· 6
ㆍ「특정범죄 가중처벌 등에 관한 법률」 제5조의4 제5항의 누범전과의 의미(大判 2019도18891) ··· 8

…… 형 법 각 론 ……
[1] 체포와 감금의 죄 ··························································································· 10
ㆍ체포죄의 실행의 착수시기와 기수시기(大判 2016도18713) ······································ 10
[2] 강간과 추행의 죄 ··························································································· 11
ㆍ강제추행죄에서의 폭행과 추행의 정도(大判 2019도15994) ····································· 11
[3] 명예에 관한 죄 ······························································································ 13
ㆍ‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계(大判 2018도15868) ··························· 13
[4] 주거침입의 죄 ······························································································· 15
ㆍ주거침입죄의 객체와 위요지(大判 2019도16484) ··················································· 15
[5] 사기의 죄 ····································································································· 16
ㆍ기망행위에 의하여 국가적·공공적 법익을 침해한 경우(大判 2019도2003) ·················· 16
ㆍ규정을 위반한 공사도급계약체결과 사기죄(大判 2015도10570) ································ 17
[6] 횡령의 죄 ····································································································· 19
ㆍ횡령죄의 객체(大判 2019도9773) ········································································· 19
[7] 배임의 죄 ····································································································· 20
ㆍ채무자의 동산 양도담보 목적물 보관의무(大判 2019도9756, 전원합의체 판결) ·········· 20
ㆍ배임죄에서 ‘타인의 사무를 처리하는 자’의 의미(大判 2014도9907) ·························· 23
ㆍ채무자의 저당권설정의무 및 부동산 양도담보설정의무의 성격(大判 2019도14339, 전원합의체 판결) ··· 25
[8] 손괴의 죄 ····································································································· 27
ㆍ재물손괴죄에서 ‘효용을 해하는 것’의 의미(大判 2017도20455) ································ 27
[9] 유가증권에 관한 죄 ························································································ 29
ㆍ구 「부정수표 단속법」 제5조의 수표 위조·변조의 의미(大判 2019도12022) ·············· 29
[10] 문서에 관한 죄 ···························································································· 30
ㆍ공전자기록위작·변작죄의 객체와 유추해석금지의 원칙(大判 2016도19170) ················ 30
ㆍ공전자기록 등 불실기재죄에서 ‘불실의 사실’의 의미(大判 2019도7729) ···················· 32
ㆍ공문서부정행사죄의 객체(大判 2018도2560) ·························································· 34
[11] 성풍속에 관한 죄 ························································································· 35
ㆍ공연음란죄에서 음란성의 판단기준(大判 2019도14056) ·········································· 35
[12] 공무원의 직무에 관한 죄 ·············································································· 37
ㆍ직권남용죄와 강요죄의 성립요건(大判 2018도2236, 전원합의체 판결) ······················ 37
ㆍ직권남용죄와 강요죄의 성립요건(大判 2019도5186) ··············································· 42
ㆍ실무자의 행위가 ‘의무 없는 일’에 해당하는지의 판단기준(大判 2019도11698) ·········· 45
ㆍ공무원이 횡령한 자금을 공범자끼리 수수한 경우(大判 2019도11766) ····························· 47

…… 형 법 소 송 법 ……
[1] 수사의 방법 ·································································································· 48
ㆍ피의자신문시 보호장비 사용 여부 및 변호인의 피의자신문 참여권 침해 여부(大決 2015모2357) ··· 48
[2] 대물적 강제수사 ···························································································· 50
ㆍ압수·수색과 사건과의 관련성(大判 2019도14341) ·················································· 50
ㆍ입수·수색영장의 제시방법(大決 2019모3526) ························································· 52
[3] 수사의 종결 ·································································································· 53
ㆍ증인에 대한 검찰 진술조서의 증거능력(大判 2013도6825) ···················································· 53
[4] 공소제기의 방식 ···························································································· 55
ㆍ공소사실이 부분적으로 특정되지 않은 경우(大判 2019도10086) ······························ 55
[5] 변호인 ·········································································································· 57
ㆍ반의사불벌죄에서 변호인의 처벌불원의사표시의 대리(大判 2019도10678) ················· 57
[6] 전문법칙 ······································································································· 59
ㆍ‘공범에 대한 사법경찰관 작성 피의자신문조서’ 및 ‘전문진술’의 증거능력(大判 2019도11552) ······· 59
ㆍ압수조서에 기재된 ‘압수경위’의 증거능력 인정요건(大判 2019도13290) ··················· 61
ㆍ정당하지 않은 증언거부와 제314조의 적용여부(大判 2018도13945, 전원합의체 판결) ····· 63
[7] 재 심 ··········································································································· 65
ㆍ합헌결정 이전의 간통에 대한 재심(大判 2019도15167) ·········································· 65
ㆍ재심사유가 되는 위헌결정의 소급효가 미치는 범위(大決 2015모2204) ······················ 66
[8] 약식절차 ······································································································· 68
ㆍ정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부(大判 2019도15700) ······· 68
ㆍ정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부(大判 2020도355) ·········· 69
[9] 즉결심판절차 ··································································································70
ㆍ범칙금 납부기간의 의미(大判 2017도13409) ························································· 70
ㆍ인장이나 지장이 없는 정식재판청구서의 적법성 여부(大決 2017모3458) ··················· 71

참고판례 ············································································································· 72

〈 서 문 〉
“형법·형사소송법 2020년 상반기 최신판례정리”에 대하여

본 “형법·형사소송법 2020년 상반기 최신판례정리”는 ‘2020년 상반기’에 법원공보에 수록된 판례와 미간행 판례를 정리한 자료이다. 본서의 특징을 설명하면 다음과 같다.

1. 정확한 ‘사실관계’의 정리ㆍ소개
판례는 과거에 발생한 범죄에 대한 대법원의 최종적인 판단이다. 그러므로 그 범죄의 사실관계를 모르고서 판례를 공부한다는 것은 ‘어떤 영화를 보지도 않고 또한 그 줄거리도 모르면서 그 영화에 대해서 논하는 것’과 같이 실로 무의미한 일이다. 그래서 본서에서는 대법원 판례에 나타난 사실관계를 정리하여 소개함으로써 법조문과 법리 적용의 전제가 되는 사안을 정확하게 파악할 수 있도록 하였다.

2. ‘주요쟁점’의 명확한 부각
본서에 수록된 판례들은 전부 최종심인 대법원의 판례이다. 사건이 제1심이나 항소심에서 종결되지 않고 대법원에까지 올라왔다는 것은 그 사건에 무엇인가 문제가 있었기 때문이다. 그러므로 대법원 판례를 정확하게 이해하기 위해서는 그 사건에서 검사와 피고인 및 변호인간에 다투어진 “쟁점”이 무엇인지를 알아야 한다. 그래서 본서에서는 그러한 쟁점들을 ‘질문’의 형식으로 부각시킴으로써 그 질문에 대한 대법원의 ‘답변’인 판례의 내용을 보다 정확하게 이해할 수 있도록 하였다.

3. 필요한 ‘판결이유’의 발췌 소개
대법원은 ‘판결문’의 내용을 ‘판결요지’의 형식으로 정리하여 제공하고 있는데, 때로는 그 판결요지의 내용만으로는 판례의 내용을 정확하게 파악하는 것이 어려운 경우가 있다. 이에 본서에서는 필요한 경우에는 ‘판결이유’ 중에서 중요한 부분을 발췌하여 소개함으로써 판례의 정확한 이해에 도움이 되도록 하였다.

4. 꼭 읽고 기억해야 할 ‘중요부분’ 강조
최근의 대법원 판례들은 그 판결문의 분량이 상당히 많다. 판결문 본문의 경우에는 적게는 수 페이지에서 많게는 백여 페이지를 넘는 경우도 있고, 심지어는 판결요지만 수 페이지가 되는 경우도 많다. 이에 본서에서는 객관식 또는 선택형 문제의 지문으로 출제될 가능성이 있는 부분에 대해서는 ‘고딕 내지 underline 등’으로 강조를 함으로써 최종정리시에 효과적으로 활용할 수 있도록 하였다.

아무쪼록 본서의 적절한 활용으로 합격의 영광을 안기를 간절히 기원하면서…
2020.6.22.
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