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형법요론이 형법의 기본교재로서 지향하는 점은, 첫째 이론기본서로서의 역할, 둘째 판례기본서로서의 역할, 그리고 셋째 사례기본서로서의 역할이다.

1. 형법 기본이론의 충실한 정리
형법 공부를 시작한다면 가장 먼저 소화해야 하는 것이 “형법이론”이다. 본서는 기출문제 분석을 기초로 문제 해결에 필요한 이론들을 꾸준히 증감 보완함으로써 형법의 필수이론에 대한 기본서가 될 수 있도록 하였다.

2. 판례의 체계적 정리
본서에서는 출제가능한 판례들을 형법의 이론적 체계에 따라 일목요연하게 정리함으로써 판례교재를 별도로 볼 필요가 없도록 하였다. 특히 최근 5년간의 판례에 대해서는 최신이라고 표시하여 최신판례의 높은 출제비중에 효율적으로 대비할 수 있도록 하였고, 같아 보이지만 다른 판례에 대해서는 비교로 정리하여 혼동하지 않도록 하였다. 또한 동일한 쟁점에 대해서는 “긍정한 판례”와 “부정한 판례”를 나누어 정리하였다. 최신판례는 2021년 12월 판례공보까지 수록하였다.

3. 사례형 문제의 체계적 정리
사례형 문제(Case)의 출제경향을 파악하고 답안작성방법을 익힐 수 있도록 2012년부터 2021년까지의 변호사시험, 2001년 이후의 사법시험, 그리고 2011년부터 2021년까지의 5급공채시험 문제 중에서 논점별로 가장 표준적인 130문제를 선정하여 수록하였다.

형법총론

제1편 형법의 일반이론

제1장 형법의 기본개념
제1절 형법의 의의와 성격 ······················································································ 5
[1] 형법의 의의/ 5 [2] 형법의 성격/ 5
제2절 형법의 기능 ································································································· 7
[1] 규제적 기능/ 7 [2] 보호적 기능/ 7 [3] 보장적 기능/ 8
제3절 형법의 발전 ································································································· 9
[1] 형법의 역사/ 9 [2] 위험사회와 위험형법/ 9

제2장 형법의 기본원리
제1절 죄형법정주의 ······························································································ 11
[1] 죄형법정주의의 의의/ 11 [2] 죄형법정주의의 연혁과 사상적 배경/ 12
[3] 죄형법정주의의 현대적 의의/ 12 [4] 죄형법정주의의 내용/ 13
제2절 형법이론 ···································································································· 41
[1] 형법학파/ 41 [2] 형벌이론/ 44 [3] 범죄이론/ 46

제3장 형법의 적용범위
제1절 형법의 시간적 적용범위 ··············································································· 48
[1] 서 설/ 48 [2] 형법의 태도/ 48 [3] 한시법/ 59
제2절 형법의 장소적 적용범위 ··············································································· 64
[1] 서 설/ 64 [2] 형법의 태도/ 65
제3절 형법의 인적 적용범위 ·················································································· 71
[1] 의 의/ 71 [2] 예 외/ 71

제2편 범 죄 론

제1장 범죄론의 기초
제1절 범죄의 의의와 종류 ····················································································· 75
[1] 범죄의 의의와 본질/ 75 [2] 범죄의 성립요건·처벌조건·소추조건/ 76
[3] 범죄의 종류/ 79
제2절 행위론 ······································································································· 87
[1] 서 설/ 87 [2] 행위론의 종류/ 88
제3절 범죄체계론 ································································································· 91
[1] 범죄체계론의 의의/ 91 [2] 범죄체계론의 현황/ 92
제4절 행위의 주체와 객체 ····················································································· 93
[1] 행위의 주체/ 93 [2] 행위의 객체와 보호의 객체/ 102

제2장 구성요건론
제1절 구성요건의 일반이론 ················································································· 104
[1] 구성요건의 의의/ 104 [2] 구성요건과 위법성의 관계/ 105
[3] 구성요건의 요소/ 106 [4] 구성요건해당성배제사유/ 107
제2절 결과반가치와 행위반가치 ··········································································· 108
[1] 결과반가치와 행위반가치/ 108 [2] 결과반가치론과 행위반가치론/ 108
[3] 결과반가치와 행위반가치의 내용/ 110
제3절 부작위범 ·································································································· 112
[1] 부작위/ 112 [2] 부작위범/ 114
[3] 부진정부작위범의 구성요건/ 118 [4] 관련문제/ 128
제4절 인과관계와 객관적 귀속 ············································································· 131
[1] 서 설/ 131 [2] 인과관계에 관한 학설/ 133
[3] 객관적 귀속이론/ 142 [4] 형법 제17조의 해석/ 149
제5절 구성요건적 고의 ······················································································· 150
[1] 고의의 의의와 본질/ 150 [2] 고의의 체계적 지위/ 151
[3] 고의의 내용/ 152 [4] 고의의 종류/ 154
제6절 구성요건적 착오 ······················································································· 162
[1] 서 설/ 162 [2] 구성요건적 착오의 유형/ 164
[3] 구성요건적 착오에 관한 학설과 판례/ 165
[4] 가감적 구성요건요소에 대한 착오/ 170
[5] 인과관계의 착오와 개괄적 고의/ 172 [6] 관련문제/ 177
제7절 과실범 ····································································································· 178
[1] 서 설/ 178 [2] 과실범의 성립요건/ 182
[3] 객관적 주의의무의 제한원리/ 191 [4] 관련문제/ 198
제8절 결과적 가중범 ·························································································· 199
[1] 서 설/ 199 [2] 결과적 가중범의 성립요건/ 202
[3] 관련문제/ 208

제3장 위법성론
제1절 위법성의 일반이론 ···················································································· 214
[1] 위법성의 의의/ 214 [2] 위법성의 본질/ 215
[3] 위법성의 평가방법/ 216 [4] 위법성조각사유/ 217
제2절 정당방위 ·································································································· 223
[1] 서 설/ 223 [2] 정당방위의 성립요건/ 224
[3] 정당방위의 효과/ 236 [4] 과잉방위와 오상방위/ 237
제3절 긴급피난 ·································································································· 243
[1] 서 설/ 243 [2] 긴급피난의 성립요건/ 245
[3] 긴급피난의 효과/ 251 [4] 과잉피난과 오상피난/ 252
[5] 의무의 충돌/ 253
제4절 자구행위 ·································································································· 257
[1] 서 설/ 257 [2] 자구행위의 성립요건/ 258
[3] 자구행위의 효과/ 262 [4] 과잉자구행위와 오상자구행위/ 263
제5절 피해자의 승낙 ·························································································· 265
[1] 양 해/ 265 [2] 피해자의 승낙/ 267
[3] 추정적 승낙/ 272
제6절 정당행위 ·································································································· 276
[1] 서 설/ 276 [2] 법령에 의한 행위/ 277
[3] 업무로 인한 행위/ 286 [4] 사회상규에 위배되지 않는 행위/ 290

제4장 책임론
제1절 책임의 일반이론 ······················································································· 300
[1] 서 설/ 300 [2] 책임의 근거/ 301
[3] 책임의 본질/ 303 [4] 책임의 판단/ 306
제2절 책임능력 ·································································································· 308
[1] 서 설/ 308 [2] 책임무능력자/ 309
[3] 한정책임능력자/ 314 [4] 원인에 있어서 자유로운 행위/ 316
제3절 위법성의 인식과 금지착오 ········································································· 324
[1] 위법성의 인식/ 324 [2] 금지착오/ 328
[3] 위법성조각사유의 전제사실에 대한 착오/ 341
제4절 기대가능성 ······························································································· 346
[1] 기대가능성이론/ 346 [2] 강요된 행위/ 351
[3] 초법규적 책임조각사유/ 355

제5장 미수론
제1절 미수범의 일반이론 ···················································································· 357
[1] 범죄실현의 단계/ 357 [2] 미수범의 처벌근거/ 359
제2절 장애미수 ·································································································· 361
[1] 의 의/ 361 [2] 장애미수의 성립요건/ 361
[3] 장애미수의 처벌/ 368 [4] 관련문제/ 369
제3절 중지미수 ·································································································· 370
[1] 서 설/ 370 [2] 중지미수의 성립요건/ 371
[3] 중지미수의 처벌/ 379 [4] 관련문제/ 380
제4절 불능미수 ·································································································· 385
[1] 서 설/ 385 [2] 불능미수의 성립요건/ 386
[3] 불능미수의 처벌 및 관련문제/ 392
제5절 예비죄 ···································································································· 395
[1] 서 설/ 395 [2] 예비죄의 법적 성격/ 396
[3] 예비죄의 성립요건/ 397 [4] 관련문제/ 400

제6장 정범 및 공범론
제1절 정범·공범의 일반이론 ················································································ 403
[1] 서 설/ 403 [2] 정범과 공범의 구별/ 408
[3] 공범의 종속성과 처벌근거/ 414
제2절 간접정범 ·································································································· 418
[1] 서 설/ 418 [2] 간접정범의 성립요건/ 419
[3] 간접정범의 처벌/ 425 [4] 관련문제/ 426
[5] 특수교사·방조/ 429
제3절 공동정범 ·································································································· 430
[1] 서 설/ 430 [2] 공동정범의 성립요건/ 432
[3] 공동정범의 처벌/ 452 [4] 관련문제/ 453
제4절 교사범 ····································································································· 466
[1] 서 설/ 466 [2] 교사범의 성립요건/ 467
[3] 교사의 착오/ 473 [4] 교사범의 처벌/ 476
[5] 관련문제/ 476
제5절 종 범 ······································································································ 479
[1] 서 설/ 479 [2] 종범의 성립요건/ 480
[3] 종범의 착오/ 489 [4] 종범의 처벌/ 490
[5] 관련문제/ 491
제6절 공범과 신분 ····························································································· 493
[1] 서 설/ 493 [2] 형법 제33조의 해석론/ 495
[3] 소극적 신분과 공범/ 503 [4] 입법론/ 505

제7장 죄수론
제1절 죄수의 일반이론 ······················································································· 506
[1] 죄수론의 의의/ 506 [2] 죄수결정의 기준/ 506
[3] 수죄의 처벌/ 510
제2절 일 죄 ······································································································ 511
[1] 서 설/ 511 [2] 법조경합 / 511 [3] 포괄일죄/ 520
제3절 수 죄 ······································································································ 532
[1] 상상적 경합/ 532 [2] 실체적 경합/ 541

제3편 형 벌 론
제1절 형벌의 종류 ····························································································· 553
[1] 서 설/ 553 [2] 사 형/ 553 [3] 자유형/ 554
[4] 재산형/ 555 [5] 명예형/ 567 [6] 형의 경중/ 568
제2절 형의 양정 ································································································ 570
[1] 의 의/ 570 [2] 형의 양정의 단계/ 570
[3] 형의 가중·감경·면제/ 570 [4] 양 형/ 578
[5] 판결선고 전 구금 및 판결의 공시/ 580
제3절 누 범 ······································································································ 582
[1] 서 설/ 582 [2] 누범가중의 요건/ 583
[3] 누범의 효과/ 586 [4] 판결선고 후의 누범발각/ 587
제4절 집행유예·선고유예·가석방 ··········································································· 589
[1] 집행유예/ 589 [2] 선고유예/ 596 [3] 가석방/ 600
제5절 형의 시효·소멸·기간 ·················································································· 604
[1] 형의 시효/ 604 [2] 형의 소멸·실효와 복권·사면/ 605
[3] 형의 기간/ 608
제6절 보안처분 ·································································································· 609
[1] 보안처분의 일반이론/ 609 [2] 현행법상의 보안처분/ 612

형법각론

제1편 개인적 법익에 대한 죄

제1장 생명과 신체에 대한 죄
제1절 살인의 죄 ································································································ 621
[1] 총 설/ 621 [2] 살인죄/ 621 [3] 존속살해죄/ 627
[4] 영아살해죄/ 629 [5] 촉탁·승낙살인죄/ 632 [6] 자살교사·방조죄/ 633
[7] 위계·위력에 의한 살인죄/ 637 [8] 살인예비·음모죄/ 638
제2절 상해와 폭행의 죄 ······················································································ 639
[1] 총 설/ 639 [2] 상해죄/ 640 [3] 존속상해죄/ 646
[4] 중상해죄/ 646 [5] 존속중상해죄/ 648 [6] 특수상해죄/ 648
[7] 상해치사죄·존속상해치사죄/ 649 [8] 상해의 동시범특례/ 649
[9] 폭행죄/ 650 [10] 존속폭행죄/ 655 [11] 특수폭행죄/ 655
[12] 폭행치사상죄/ 661 [13] 상습상해·폭행죄/ 662
제3절 과실치사상의 죄 ······················································································· 663
[1] 총 설/ 663 [2] 과실치상죄/ 664 [3] 과실치사죄/ 664
[4] 업무상과실·중과실치사상죄/ 665
제4절 낙태의 죄 ································································································ 676
[1] 총 설/ 676 [2] 자기낙태죄/ 678 [3] 동의낙태죄/ 678
[4] 업무상동의낙태죄/ 679 [5] 부동의낙태죄/ 680 [6] 낙태치사상죄/ 681
제5절 유기와 학대의 죄 ······················································································ 682
[1] 총 설/ 682 [2] 유기죄/ 683 [3] 존속유기죄/ 687
[4] 중유기죄·존속중유기죄/ 687 [5] 영아유기죄/ 688
[6] 학대죄/ 688 [7] 존속학대죄/ 690 [8] 아동혹사죄/ 690
[9] 유기치사상죄/ 692
제2장 자유에 대한 죄
제1절 협박의 죄 ································································································ 693
[1] 총 설/ 693 [2] 협박죄/ 694 [3] 존속협박죄/ 703
[4] 특수협박죄/ 703 [5] 상습협박죄/ 703
제2절 강요의 죄 ································································································ 704
[1] 총 설/ 704 [2] 강요죄/ 704 [3] 특수강요죄/ 710 [4] 중강요죄/ 710
[5] 인질강요죄/ 711 [6] 인질상해·치상죄/ 713 [7] 인질살해·치사죄/ 713
제3절 체포와 감금의 죄 ······················································································ 714
[1] 총 설/ 714 [2] 체포·감금죄/ 714 [3] 존속체포·감금죄/ 721
[4] 중체포·감금죄, 존속중체포·감금죄/ 722 [5] 특수체포·감금죄/ 723
[6] 상습체포·감금죄/ 723 [7] 체포·감금치사상죄/ 723
제4절 약취·유인 및 인신매매의 죄 ······································································· 725
[1] 총 설/ 725 [2] 미성년자 약취·유인죄/ 726
[3] 추행·간음·결혼·영리목적 약취·유인죄/ 732
[4] 노동력 착취·성매매와 성적 착취·장기적출목적 약취·유인죄/ 735
[5] 국외이송목적 약취·유인죄/ 735 [6] 피약취·유인자 국외이송죄/ 736
[7] 인신매매죄/ 737 [8] 추행·간음·결혼·영리목적 인신매매죄/ 738
[9] 노동력 착취·성매매와 성적 착취·장기적출목적 인신매매죄/ 738
[10] 국외이송목적 인신매매죄/ 739 [11] 피매매자 국외이송죄/ 739
[12] 피약취·유인·매매·이송자 상해·치상죄/ 739
[13] 피약취·유인·매매·이송자 살인·치사죄/ 740
[14] 피약취·유인·매매·이송자 수수·은닉죄/ 740
[15] 약취·유인·매매·이송목적 모집·운송·전달죄/ 741
제5절 강간과 추행의 죄 ······················································································ 742
[1] 총 설/ 742 [2] 강간죄/ 746 [3] 유사강간죄/ 751
[4] 강제추행죄/ 754 [5] 준강간죄·준강제추행죄/ 758
[6] 미성년자의제강간·강제추행죄/ 762
[7] 강간상해·치상죄, 강간살인·치사죄/ 764
[8] 미성년자·심신미약자 간음·추행죄/ 768
[9] 피감호자간음죄/ 770 [10] 피구금자간음죄/ 772 [11] 상습범/ 773

제3장 명예와 신용에 대한 죄
제1절 명예에 관한 죄 ························································································· 774
[1] 총 설/ 774 [2] 명예훼손죄/ 775 [3] 사자의 명예훼손죄/ 795
[4] 출판물에 의한 명예훼손죄/ 796 [5] 모욕죄/ 801
제2절 신용·업무와 경매에 관한 죄 ······································································· 806
[1] 총 설/ 806 [2] 신용훼손죄/ 806 [3] 업무방해죄/ 809
[4] 컴퓨터업무방해죄/ 827 [5] 경매·입찰방해죄/ 831

제4장 사생활의 평온에 대한 죄
제1절 비밀침해의 죄 ·························································································· 835
[1] 총 설/ 835 [2] 비밀침해죄/ 836 [3] 업무상비밀누설죄/ 839
제2절 주거침입의 죄 ·························································································· 843
[1] 총 설/ 843 [2] 주거침입죄/ 844 [3] 퇴거불응죄/ 857
[4] 특수주거침입죄/ 859 [5] 주거·신체수색죄/ 860

제5장 재산에 대한 죄
제1절 재산죄의 기본개념 ···················································································· 862
[1] 재산죄의 분류/ 862 [2] 재산죄의 객체/ 863 [3] 형법상의 점유/ 871
[4] 불법영득의사/ 881 [5] 친족상도례/ 893
제2절 절도의 죄 ································································································ 900
[1] 총 설/ 900 [2] 절도죄/ 901 [3] 야간주거침입절도죄/ 912
[4] 특수절도죄/ 914 [5] 자동차 등 불법사용죄/ 920 [6] 상습절도죄/ 923
제3절 강도의 죄 ································································································ 925
[1] 총 설/ 925 [2] 강도죄/ 926 [3] 특수강도죄/ 937
[4] 준강도죄/ 939 [5] 인질강도죄/ 949
[6] 강도상해·치상죄/ 951 [7] 강도살인·치사죄/ 954
[8] 강도강간죄/ 957 [9] 해상강도죄, 해상강도상해·치상·살인·치사·강간죄/ 960
[10] 상습강도죄/ 962 [11] 강도예비·음모죄/ 962
제4절 사기의 죄 ································································································ 963
[1] 총 설/ 963 [2] 사기죄/ 964
[3] 컴퓨터 등 사용사기죄/ 1009 [4] 신용카드 관련범죄/ 1015
[5] 준사기죄/ 1025 [6] 편의시설부정이용죄/ 1027
[7] 부당이득죄/ 1028 [8] 상습사기죄/ 1031
제5절 공갈의 죄 ······························································································· 1032
[1] 총 설/ 1032 [2] 공갈죄/ 1033
[3] 특수공갈죄/ 1042 [4] 상습공갈죄/ 1042
제6절 횡령의 죄 ······························································································ 1043
[1] 총 설/ 1043 [2] 횡령죄/ 1044
[3] 업무상횡령죄/ 1088 [4] 점유이탈물횡령죄/ 1089
제7절 배임의 죄 ······························································································· 1091
[1] 총 설/ 1091 [2] 배임죄/ 1093 [3] 업무상배임죄/ 1129
[4] 배임수재죄/ 1130 [5] 배임증재죄/ 1139
제8절 장물의 죄 ······························································································· 1141
[1] 총 설/ 1141 [2] 장물죄/ 1151
[3] 상습장물죄/ 1159 [4] 업무상과실·중과실장물죄/ 1160
제9절 손괴의 죄 ······························································································· 1161
[1] 총 설/ 1161 [2] 재물손괴죄/ 1161
[3] 공익건조물파괴죄/ 1170 [4] 중손괴죄·손괴치사상죄/ 1171
[5] 특수손괴죄/ 1171 [6] 경계침범죄/ 1171
제10절 권리행사를 방해하는 죄 ········································································· 1175
[1] 총 설/ 1175 [2] 권리행사방해죄/ 1175 [3] 점유강취죄/ 1182
[4] 준점유강취죄/ 1183 [5] 중권리행사방해죄/ 1183
[6] 강제집행면탈죄/ 1183

제2편 사회적 법익에 대한 죄

제1장 공공의 안전과 평온에 대한 죄
제1절 공안을 해하는 죄 ···················································································· 1195
[1] 총 설/ 1195 [2] 범죄단체 등 조직죄/ 1195 [3] 소요죄/ 1200
[4] 다중불해산죄/ 1203 [5] 전시공수계약불이행죄/ 1204
[6] 공무원자격사칭죄/ 1205
제2절 폭발물에 관한 죄 ···················································································· 1207
[1] 총 설/ 1207 [2] 폭발물사용죄/ 1207 [3] 전시폭발물사용죄/ 1209
[4] 폭발물사용 예비·음모·선동죄/ 1210
[5] 전시폭발물 제조·수입·수출·수수·소지죄/ 1210
제3절 방화와 실화의 죄 ···················································································· 1211
[1] 총 설/ 1211 [2] 현주건조물 등 방화죄/ 1213
[3] 현주건조물 등 방화치사상죄/ 1218 [4] 공용건조물 등 방화죄/ 1220
[5] 일반건조물 등 방화죄/ 1220 [6] 일반물건방화죄/ 1222
[7] 연소죄/ 1223 [8] 진화방해죄/ 1224
[9] 폭발성물건파열죄/ 1225 [10] 폭발성물건파열치사상죄/ 1225
[11] 가스·전기 등 방류죄/ 1226 [12] 가스·전기 등 방류치사상죄/ 1226
[13] 가스·전기 등 공급방해죄/ 1226 [14] 가스·전기 등 공급방해치사상죄/ 1226
[15] 방화 등 예비·음모죄/ 1227 [16] 실화죄/ 1227
[17] 업무상실화·중실화죄/ 1227 [18] 과실폭발성물건파열 등 죄/ 1228
제4절 일수와 수리에 관한 죄 ············································································ 1230
[1] 총 설/ 1230 [2] 현주건조물 등 일수죄/ 1230
[3] 현주건조물일수치사상죄/ 1231 [4] 공용건조물 등 일수죄/ 1232
[5] 일반건조물 등 일수죄/ 1232 [6] 방수방해죄/ 1232
[7] 과실일수죄/ 1233 [8] 일수예비·음모죄/ 1233 [9] 수리방해죄/ 1234
제5절 교통방해의 죄 ························································································ 1236
[1] 총 설/ 1236 [2] 일반교통방해죄/ 1236 [3] 기차·선박 등 교통방해죄/ 1240
[4] 기차 등 전복죄/ 1241 [5] 교통방해치사상죄/ 1242
[6] 과실교통방해죄/ 1242 [7] 업무상과실·중과실교통방해죄/ 1243

제2장 공공의 신용에 대한 죄
제1절 통화에 관한 죄 ······················································································· 1245
[1] 총 설/ 1245 [2] 내국통화 위조·변조죄/ 1246
[3] 내국유통 외국통화 위조·변조죄/ 1248
[4] 외국통용 외국통화 위조·변조죄/ 1248
[5] 위조·변조통화 행사 등 죄/ 1249 [6] 위조·변조통화취득죄/ 1252
[7] 위조통화취득후지정행사죄/ 1253 [8] 통화유사물제조·수입·수출죄/ 1253
[9] 통화위조·변조 예비·음모죄/ 1254
제2절 유가증권·인지와 우표에 관한 죄 ······························································· 1255
[1] 총 설/ 1255 [2] 유가증권 위조·변조죄/ 1255
[3] 기재의 위조·변조죄/ 1262 [4] 자격모용에 의한 유가증권작성죄/ 1264
[5] 허위유가증권작성죄/ 1265 [6] 위조 등 유가증권 행사·수입·수출죄/ 1267
[7] 인지·우표 위조·변조죄/ 1269
[8] 위조·변조 인지·우표 행사·수입·수출죄/ 1269
[9] 위조·변조 인지·우표 취득죄/ 1270 [10] 소인말소죄/ 1270
[11] 인지·우표유사물 제조·수입·수출죄/ 1270 [12] 예비·음모죄/ 1270
제3절 문서에 관한 죄 ······················································································· 1271
[1] 총 설/ 1271 [2] 사문서위조·변조죄/ 1282
[3] 자격모용에 의한 사문서작성죄/ 1296 [4] 사전자기록 위작·변작죄/ 1299
[5] 공문서위조·변조죄/ 1302 [6] 자격모용에 의한 공문서작성죄/ 1303
[7] 공전자기록 위작·변작죄/ 1304 [8] 허위진단서 등 작성죄/ 1305
[9] 허위공문서작성죄/ 1308 [10] 공정증서원본 등 부실기재죄/ 1316
[11] 위조·변조·작성 사문서행사죄/ 1327
[12] 위조·변조 등 공문서행사죄/ 1329 [13] 사문서부정행사죄/ 1330
[14] 공문서부정행사죄/ 1331
제4절 인장에 관한 죄 ······················································································· 1336
[1] 총 설/ 1336 [2] 사인 등 위조·부정사용죄/ 1338
[3] 위조사인 등 행사죄/ 1340 [4] 공인 등 위조·부정사용죄/ 1341
[5] 위조공인 등 행사죄/ 1342

제3장 공중의 건강에 대한 죄
제1절 먹는 물에 관한 죄 ·················································································· 1343
[1] 총 설/ 1343 [2] 먹는 물 사용방해죄/ 1343
[3] 먹는 물 유해물혼입죄/ 1344 [4] 수돗물사용방해죄/ 1345
[5] 수돗물유해물혼입죄/ 1346 [6] 먹는 물 혼독치사상죄/ 1346
[7] 수도불통죄/ 1346
제2절 아편에 관한 죄 ······················································································· 1348
[1] 총 설/ 1348 [2] 아편흡식죄/ 1348 [3] 아편흡식장소제공죄/ 1349
[4] 아편 등 제조·수입·판매·판매목적소지죄/ 1350
[5] 아편흡식기 제조·수입·판매·판매목적소지죄/ 1350
[6] 세관공무원의 아편 등 수입·수입허용죄/ 1351
[7] 상습아편흡식·제조·수입·판매죄/ 1351 [8] 아편 등 소지죄/ 1351

제4장 사회의 도덕에 대한 죄
제1절 성풍속에 관한 죄 ···················································································· 1352
[1] 총 설/ 1352 [2] 음행매개죄/ 1352
[3] 음화 등 반포·판매·임대·공연전시죄/ 1354
[4] 음화 등 제조·소지·수입·수출죄/ 1358 [5] 공연음란죄/ 1359
제2절 도박과 복표에 관한 죄 ············································································ 1362
[1] 총 설/ 1362 [2] 도박죄/ 1362 [3] 상습도박죄/ 1366
[4] 도박장소 등 개설죄/ 1367 [5] 복표발매·중개·취득죄/ 1369
제3절 신앙에 관한 죄 ······················································································· 1371
[1] 총 설/ 1371 [2] 장례식 등 방해죄/ 1371
[3] 시체 등 오욕죄/ 1373 [4] 분묘발굴죄/ 1374
[5] 시체 등 손괴·유기·은닉·영득죄/ 1376 [6] 변사체검시방해죄/ 1378

제3편 국가적 법익에 대한 죄

제1장 국가의 존립과 권위에 대한 죄
제1절 내란의 죄 ······························································································· 1383
[1] 총 설/ 1383 [2] 내란죄/ 1384 [3] 내란목적살인죄/ 1388
[4] 내란예비·음모·선동·선전죄/ 1389
제2절 외환의 죄 ······························································································· 1391
[1] 총 설/ 1391 [2] 외환유치죄/ 1391 [3] 여적죄/ 1392
[4] 모병이적죄/ 1393 [5] 시설제공이적죄/ 1393
[6] 시설파괴이적죄/ 1393 [7] 물건제공이적죄/ 1393
[8] 일반이적죄/ 1393 [9] 간첩죄/ 1394
[10] 전시군수계약불이행죄/ 1398 [11] 외환예비·음모·선동·선전죄/ 1399
제3절 국기에 관한 죄 ······················································································· 1400
[1] 총 설/ 1400 [2] 국기·국장모독죄/ 1400
[3] 국기·국장비방죄/ 1401
제4절 국교에 관한 죄 ······················································································· 1402
[1] 총 설/ 1402 [2] 외국원수에 대한 폭행 등 죄/ 1403
[3] 외국사절에 대한 폭행 등 죄/ 1403 [4] 외국국기·국장모독죄/ 1404
[5] 외국에 대한 사전죄/ 1404 [6] 중립명령위반죄/ 1405
[7] 외교상기밀누설죄/ 1405

제2장 국가의 기능에 대한 죄
제1절 공무원의 직무에 관한 죄 ········································································· 1407
[1] 총 설/ 1407 [2] 직무유기죄/ 1409 [3] 피의사실공표죄/ 1416
[4] 공무상비밀누설죄/ 1418 [5] 직권남용죄/ 1421
[6] 불법체포·감금죄/ 1428 [7] 폭행·가혹행위죄/ 1429
[8] 선거방해죄/ 1430 [9] 뇌물죄의 일반이론/ 1431
[10] 수뢰죄/ 1447 [11] 사전수뢰죄/ 1454
[12] 제3자뇌물공여죄/ 1456 [13] 수뢰후부정처사죄/ 1460
[14] 부정처사후수뢰죄/ 1461 [15] 사후수뢰죄/ 1462
[16] 알선수뢰죄/ 1463 [17] 증뢰죄/ 1466
제2절 공무방해에 관한 죄 ················································································· 1470
[1] 총 설/ 1470 [2] 공무집행방해죄/ 1470
[3] 직무·사직강요죄/ 1486 [4] 위계에 의한 공무집행방해죄/ 1487
[5] 법정·국회회의장모욕죄/ 1496 [6] 인권옹호직무방해죄/ 1498
[7] 공무상 봉인 등 표시무효죄/ 1499 [8] 공무상비밀침해죄/ 1505
[9] 부동산강제집행효용침해죄/ 1505 [10] 공용서류 등 무효죄/ 1507
[11] 공용물파괴죄/ 1510 [12] 공무상보관물무효죄/ 1511
[13] 특수공무방해죄·특수공무방해치사상죄/ 1512
제3절 도주와 범인은닉의 죄 ·············································································· 1515
[1] 총 설/ 1515 [2] 도주죄/ 1515 [3] 집합명령위반죄/ 1517
[4] 특수도주죄/ 1518 [5] 도주원조죄/ 1519
[6] 간수자도주원조죄/ 1520 [7] 범인은닉죄/ 1521
제4절 위증과 증거인멸의 죄 ·············································································· 1533
[1] 총 설/ 1533 [2] 위증죄/ 1533 [3] 모해위증죄/ 1545
[4] 허위감정·통역·번역죄/ 1545 [5] 증거인멸죄/ 1546
[6] 증인은닉·도피죄/ 1553 [7] 모해증거인멸죄/ 1554
제5절 무고의 죄 ······························································································· 1555
[1] 총 설/ 1555 [2] 무고죄/ 1555

[판례색인] ······································································································ 1569
[사항색인] ······································································································ 1596

〈 서 문 〉

2022년판 형법요론에 대해서

형법요론이 형법의 기본교재로서 지향하는 점은, 첫째 이론기본서로서의 역할, 둘째 판례기본서로서의 역할, 그리고 셋째 사례기본서로서의 역할이다.

1. 형법 기본이론의 충실한 정리
형법 공부를 시작한다면 가장 먼저 소화해야 하는 것이 “형법이론”이다. 이는 수학에 비유하자면 “기본공식”과 같다. 공식을 모르고서는 문제를 풀 수 없는 것처럼, 형법의 기본이론을 알지 못하고서는 “판례”를 이해하기가 어렵고, 나아가 “사례형 문제”나 “실제사건”도 해결할 수 없다. 본서는 기출문제 분석을 기초로 문제 해결에 필요한 이론들을 꾸준히 증감 보완함으로써 형법의 필수이론에 대한 기본서가 될 수 있도록 하였다.

2. 판례의 체계적 정리
본서에서는 출제가능한 판례들을 형법의 이론적 체계에 따라 일목요연하게 정리함으로써 판례교재를 별도로 볼 필요가 없도록 하였다. 특히 최근 5년간의 판례에 대해서는 최신이라고 표시하여 최신판례의 높은 출제비중에 효율적으로 대비할 수 있도록 하였고, 같아 보이지만 다른 판례에 대해서는 비교로 정리하여 혼동하지 않도록 하였다. 또한 동일한 쟁점에 대해서는 “긍정한 판례”와 “부정한 판례”를 나누어 정리하였다. 최신판례는 2021년 12월 판례공보까지 수록하였다. 그리고 법학전문대학원협의회가 선정 발표한 “표준판례”도 모두 반영하였고, 표준이라고 표시하였다. 초학자의 경우에는 먼저 “표준판례”와 “5년간의 최신판례”를 중심으로 공부하고, 이에 익숙해진 다음에 다른 판례로 학습범위를 넓히는 방법을 추천한다.

3. 사례형 문제의 체계적 정리
사례형 문제(Case)의 출제경향을 파악하고 답안작성방법을 익힐 수 있도록 2012년부터 2021년까지의 변호사시험, 2001년 이후의 사법시험, 그리고 2011년부터 2021년까지의 5급공채시험 문제 중에서 논점별로 가장 표준적인 130문제를 선정하여 수록하였다. 해설은 “문제의 제기?학설과 판례 및 결론?문제의 해결”이라는 사례형 문제 해결의 기본적인 방식에 맞추어 답안의 골격을 제시하였는데, 각자 답안지에 정식으로 답안작성연습을 해 본다면 사례형 문제에 대해서 큰 자신감을 가질 수 있을 것이다. 또한 최정정리를 할 때 적중률이 높은 매우 효율적인 자료가 될 수 있을 것이다.

아무리 시험제도와 출제경향 등이 변경될지라도 실력이 뛰어난 사람이 승자가 된다는 것 자체는 절대로 변경되지 않는다! 아무쪼록 2022년판 형법요론이 독자 여러분의 꿈의 실현에 조금이나마 도움이 되기를 진심으로 기원하면서…

2022년 1월 5일
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