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- 특징 :
① 정확한 '사실관계' 의 정리 소개
② '주요쟁점' 의 명확한 부각
③ 필요한 '판결이유' 의 발췌 소개
④ 꼭 읽고 기억해야 할 '중요부분' 강조

…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
1. 헌법불합치결정의 성격 및 효력(大判 2017도8610) ················································ 3
2. 음주운전전과의 계산과 소급효금지의 원칙(大判 2020도7154) ································· 4
[2] 정당행위 ········································································································ 7
3. 노동조합 조합활동의 정당성 인정요건(大判 2017도2478) ······································ 7
4. 쟁의행위의 정당성(大判 2015도1927) ·································································· 9
[3] 정범·공범의 일반이론 ····················································································· 11
5. 대향범과 공범규정의 적용 여부(大判 2016도3048) ······················································· 11
[4] 죄수론 ·········································································································· 13
6. 포괄일죄와 실체적 경합범의 구별기준(大判 2020도1355) ··········································· 13
[5] 형벌론 ·········································································································· 15
7. 특가법 제5조의4 제5항의 절도와 누범가중(大判 2019도18947) ······························ 15
8. 「특정범죄 가중처벌 등에 관한 법률」상의 누범전과의 계산방법(大判 2019도17381) ········· 16
9. 「특정범죄 가중처벌 등에 관한 법률」 제5조의4 제5항의 누범전과의 의미(大判 2019도18891) ····· 18

…… 형 법 각 론 ……
[1] 체포와 감금의 죄 ··························································································· 20
1. 체포죄의 실행의 착수시기와 기수시기(大判 2016도18713) ··································· 20
[2] 강간과 추행의 죄 ··························································································· 21
2. 강제추행죄에서의 폭행과 추행의 정도(大判 2019도15994) ··································· 21
3. 위력에 의한 간음죄에서 ‘위계’의 의미(大判 2015도9436, 전원합의체 판결) ············ 23
4. 업무상 위력에 의한 추행의 객체 등(大判 2020도5646) ········································ 25
5. 공중 밀집장소에서의 추행의 의미(大判 2015도7102) ··········································· 26
[3] 명예에 관한 죄 ······························································································ 27
6. 전파가능성과 공연성(大判 2020도5813, 전원합의체 판결) ···································· 27
7. ‘사실을 드러내어’의 의미와 정도(大判 2019도12750) ····················································· 29
8. ‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계(大判 2018도15868) ························ 31
[4] 신용·업무와 경매에 관한 죄 ············································································ 33
9. 업무담당자의 심사의무와 업무방해죄의 기수시기(大判 2017도19283) ···················· 33
[5] 주거침입의 죄 ······························································································· 35
10. 주거침입죄의 객체와 위요지(大判 2019도16484) ··············································· 35
[6] 사기의 죄 ····································································································· 36
11. 기망행위에 의하여 국가적·공공적 법익을 침해한 경우(大判 2019도2003) ············· 36
12. 규정을 위반한 공사도급계약체결과 사기죄(大判 2015도10570) ··························· 37
13. 부작위에 의한 기망과 고지의무(大判 2018도13696) ·········································· 39
[7] 횡령의 죄 ····································································································· 42
14. 횡령죄의 객체(大判 2019도9773) ···································································· 42
[8] 배임의 죄 ····································································································· 43
15. 주권발행 전 주식의 이중양도(大判 2015도6057) ··············································· 43
16. 채무자의 동산 양도담보 목적물 보관의무(大判 2019도9756, 전원합의체 판결) ······ 44
17. 동산 저당권설정 채무자의 사무의 성격 등(大判 2020도6258, 전원합의체 판결)······ 47
18. 채무자가 「동산채권담보법」상 담보로 제공된 동산을 처분한 경우(大判 2019도14770, 전원합의체 판결) · 49
19. 배임죄에서 ‘타인의 사무를 처리하는 자’의 의미(大判 2014도9907) ····················· 51
20. 매도인이 매수인에게 가등기를 해 준 후 이중매매를 한 경우(大判 2019도16228) ·· 53
21. 채무자의 저당권설정의무 및 부동산 양도담보설정의무의 성격(大判 2019도14340, 전원합의체 판결) ·· 54
[9] 손괴의 죄 ····································································································· 56
22. 재물손괴죄에서 ‘효용을 해하는 것’의 의미(大判 2017도20455) ··························· 56
[10] 권리행사를 방해하는 죄 죄 ··········································································· 58
23. 권리행사방해죄의 객체(大判 2019도14623) ······················································ 58
[11] 공안을 해하는 죄 죄 ···················································································· 59
24. 범죄를 목적으로 하는 단체 및 집단의 의미(大判 2019도16263) ·························· 59
[12] 유가증권에 관한 죄 ······················································································ 61
25. 구 「부정수표 단속법」 제5조의 수표 위조·변조의 의미(大判 2019도12022) ········· 61
[13] 문서에 관한 죄 ···························································································· 62
26. 사전자기록위작죄에서 ‘위작’의 의미(大判 2019도11294, 전원합의체 판결) ··········· 62
27. 공전자기록위작·변작죄의 객체와 유추해석금지의 원칙(大判 2016도19170) ··········· 68
28. 공전자기록 등 불실기재죄에서 ‘불실의 사실’의 의미(大判 2019도7729) ··············· 70
29. 공문서부정행사죄의 객체(大判 2018도2560) ····················································· 72
[14] 성풍속에 관한 죄 ························································································· 73
30. 공연음란죄에서 음란성의 판단기준(大判 2019도14056) ······································ 73
[15] 도박과 복표에 관한 죄 ················································································· 75
31. ‘영리의 목적’의 의미(大判 2020도8978) ··························································· 75
[16] 공무원의 직무에 관한 죄 ·············································································· 76
32. 직권남용죄와 강요죄의 성립요건(大判 2018도2236, 전원합의체 판결) ·················· 76
33. 직권남용죄와 강요죄의 성립요건(大判 2019도5186) ··········································· 81
34. 실무자의 행위가 ‘의무 없는 일’에 해당하는지의 판단기준(大判 2019도11698) ······ 84
35. 공무원이 횡령한 자금을 공범자끼리 수수한 경우(大判 2019도11766) ····················· 86
36. 공여자와 수뢰자 사이의 뇌물의 직접 수수 여부(大判 2017도12389) ···················· 87

…… 형 법 소 송 법 ……
[1] 수사의 기본개념 ···························································································· 89
1. 위법한 함정수사의 요건 등(大判 2019도12987) ·························································· 89
[2] 수사의 방법 ·································································································· 91
2. 임의동행의 종류(大判 2020도398) ··········································································· 91
3. 피의자신문시 보호장비 사용 여부 및 변호인의 피의자신문 참여권 침해 여부(大決 2015모2357) ·· 92
[3] 대물적 강제수사 ···························································································· 94
4. 압수·수색과 사건과의 관련성(大判 2019도14341) ··············································· 94
5. 입수·수색영장의 제시방법(大決 2019모3526) ······················································ 96
[4] 수사의 종결 ·································································································· 97
6. 증인에 대한 검찰 진술조서의 증거능력(大判 2013도6825) ················································· 97
[5] 공소제기의 방식 ···························································································· 99
7. 공소사실이 부분적으로 특정되지 않은 경우(大判 2019도10086) ···························· 99
[6] 공소시효 ····································································································· 101
8. 「공직선거법」 위반죄의 공소시효 기산일(大判 2019도8815) ································ 101
[7] 변호인 ········································································································ 102
9. 반의사불벌죄에서 변호인의 처벌불원의사표시의 대리(大判 2019도10678) ············ 102
[8] 증명의 기본원칙 ·························································································· 104
10. 성폭행 피해자의 진술의 증명력 판단방법 등(大判 2020도6965,2020전도74) ······· 104
[9] 전문법칙 ····································································································· 106
11. ‘공범에 대한 사법경찰관 작성 피의자신문조서’ 및 ‘전문진술’의 증거능력(大判 2019도11552) ··· 106
12. 형사소송법 제312조 제3항의 적용범위(大判 2016도9367) ································ 108
13. 압수조서에 기재된 ‘압수경위’의 증거능력 인정요건(大判 2019도13290) ············· 110
14. 정당하지 않은 증언거부와 제314조의 적용여부(大判 2018도13945, 전원합의체 판결) · 112
[10] 상소의 일반이론 ························································································ 114
15. 부정기형과 불이익변경금지의 원칙(大判 2020도4140, 전원합의체 판결) ············· 114
16. 보안처분과 불이익변경금지의 원칙(大判 2019도11540) ···································· 116
17. 보안처분과 불이익변경금지의 원칙(大判 2019도11609) ···································· 118
18. 파기판결의 구속력(大判 2019도15117) ··························································· 119
[11] 항 소 ········································································································ 121
19. 항소심에서의 불출석재판의 허용요건(大判 2019도5426) ··································· 121
20. 항소기각의 방법(大判 2019도17995) ······························································ 122
21. 동시적 경합범애 대한 항소기각판결의 방법(大判 2019도12560) ························ 123
[12] 상 고 ········································································································ 124
22. 양형부당과 상고이유(大判 2020도8358) ························································· 124
[13] 재 심 ········································································································ 126
23. 군사법원의 판결에 대한 재심사건의 관할(大決 2019모3197) ····························· 126
24. 합헌결정 이전의 간통에 대한 재심(大判 2019도15167) ···································· 127
25. 재심사유가 되는 위헌결정의 소급효가 미치는 범위(大決 2015모2204) ··············· 128
[14] 약식절차 ··································································································· 130
26. 정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부(大判 2019도15700) ···· 130
27. 정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부(大判 2020도355) ······· 131
[15] 즉결심판절차 ····························································································· 132
28. 범칙금 납부기간의 의미(大判 2017도13409) ··················································· 132
29. 인장이나 지장이 없는 정식재판청구서의 적법성 여부(大決 2017모3458) ············ 133

참고판례 ··········································································································· 134

〈 서 문 〉
“형법·형사소송법 1년간 최신판례정리”에 대하여

본 “형법·형사소송법 1년간 최신판례정리”는 ‘2019년 12월부터 2020년 11월까지’의 법원공보에 수록된 판례와 법원공보에 수록되지 않은 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…

2020.11.22. 법학박사 신 호 진