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2022년판 ‘MASTER 형법’에 대해서

“MASTER 형법”이 형법의 기본교재로서 지향하는 점은, 첫째로는 이론기본서로서의 역할이고, 둘째로는 판례기본서로서의 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 이해하기 어렵고, 나아가 “사례형 문제”나 “실제 사건”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 최신판례 순으로 정리하였고, 특히 사례문제로 응용이 가능한 판례에 대해서는 “상세한 사실관계”도 소개하였다. 최신판례는 2021년 12월 판례공보까지 수록하였다.

3. 법학전문대학원협의회의“표준판례”반영
2020년에 법학전문대학원협의회는 형법 교육에 있어서 기본이 되는 판례 543개를 “표준판례”로 선정하여 발표하였다. 이 “표준판례”는 변호사시험 뿐만 아니라 다른 국가시험에서도 활용될 가능성이 매우 높기 때문에 2022년판에 전부 반영하였고, 표준이라고 표시하였다. 초학자의 경우에는 먼저 “표준판례”와 “5년간의 최신판례”를 중심으로 공부하고, 이에 익숙해진 다음에 다른 판례로 학습범위를 넓히는 방법을 권한다.

[형 법 총 론]

제1편 형법의 일반이론
제1장 형법의 기본개념
제1절 형법의 의의와 성격 ······················································································ 5
[1] 형법의 의의/ 5 [2] 형법의 성격/ 6
제2절 형법의 기능 ································································································ 7
[1] 규제적 기능/ 7 [2] 보호적 기능/ 7 [3] 보장적 기능/ 8
제3절 형법의 발전 ································································································· 9
제2장 형법의 기본원리
제1절 죄형법정주의 ····························································································· 10
[1] 죄형법정주의의 의의/ 10 [2] 죄형법정주의의 연혁과 사상적 배경/ 10
[3] 죄형법정주의의 현대적 의의/ 11 [4] 죄형법정주의의 내용/ 11
제2절 형법이론 ···································································································· 37
[1] 형법학파/ 37 [2] 형벌이론/ 38 [3] 범죄이론/ 40
제3장 형법의 적용범위
제1절 형법의 시간적 적용범위 ·············································································· 41
[1] 서 설/ 41 [2] 형법의 태도/ 41 [3] 한시법/ 52
제2절 형법의 장소적 적용범위 ··············································································· 57
[1] 서 설/ 57 [2] 형법의 태도/ 58
제3절 형법의 인적 적용범위 ·················································································· 64
[1] 의 의/ 64 [2] 예 외/ 64

제2편 범 죄 론
제1장 범죄론의 기초
제1절 범죄의 의의와 종류 ····················································································· 69
[1] 범죄의 의의와 본질/ 69 [2] 범죄의 성립요건·처벌조건·소추조건/ 70
[3] 범죄의 종류/ 72
제2절 행위론 ······································································································· 79
[1] 서 설/ 79 [2] 행위론의 종류/ 80
제3절 범죄체계론 ································································································· 83
[1] 범죄체계론의 의의/ 83 [2] 범죄체계론의 현황/ 83
제4절 행위의 주체와 객체 ····················································································· 84
[1] 행위의 주체/ 84 [2] 행위의 객체와 보호의 객체/ 91
제2장 구성요건론
제1절 구성요건의 일반이론 ··················································································· 92
[1] 구성요건의 의의/ 92 [2] 구성요건이론의 발전/ 92
[3] 구성요건과 위법성의 관계/ 93 [4] 구성요건의 유형/ 94
[5] 구성요건의 요소/ 96 [6] 구성요건해당성배제사유/ 97
제2절 결과반가치와 행위반가치 ············································································· 98
[1] 결과반가치와 행위반가치/ 98 [2] 결과반가치론과 행위반가치론/ 98
[3] 결과반가치와 행위반가치의 내용/ 100
제3절 부작위범 ·································································································· 102
[1] 부작위/ 102 [2] 부작위범/ 104
[3] 부진정부작위범의 구성요건/ 107 [4] 관련문제/ 116
제4절 인과관계와 객관적 귀속 ············································································· 119
[1] 서 설/ 119 [2] 인과관계에 관한 학설/ 121
[3] 객관적 귀속이론/ 129 [4] 형법 제17조의 해석/ 133
제5절 구성요건적 고의 ······················································································· 134
[1] 고의의 의의와 본질/ 134 [2] 고의의 체계적 지위/ 135
[3] 고의의 내용/ 136 [4] 고의의 종류/ 137
제6절 구성요건적 착오 ······················································································· 144
[1] 서 설/ 144 [2] 구성요건적 착오의 유형/ 146
[3] 구성요건적 착오에 관한 학설과 판례/ 147
[4] 가감적 구성요건요소에 대한 착오/ 151
[5] 인과관계의 착오와 개괄적 고의/ 152 [6] 관련문제/ 155
제7절 과실범 ····································································································· 156
[1] 서 설/ 156 [2] 과실범의 성립요건/ 159
[3] 객관적 주의의무의 제한원리/ 166 [4] 관련문제/ 173
제8절 결과적 가중범 ·························································································· 174
[1] 서 설/ 174 [2] 결과적 가중범의 성립요건/ 177
[3] 관련문제/ 182
제3장 위법성론
제1절 위법성의 일반이론 ···················································································· 186
[1] 위법성의 의의/ 186 [2] 위법성의 본질/ 187
[3] 위법성의 평가방법/ 188 [4] 위법성조각사유/ 189
제2절 정당방위 ·································································································· 195
[1] 서 설/ 195 [2] 정당방위의 성립요건/ 196
[3] 정당방위의 효과/ 206 [4] 과잉방위와 오상방위/ 208
제3절 긴급피난 ·································································································· 213
[1] 서 설/ 213 [2] 긴급피난의 성립요건/ 214
[3] 긴급피난의 효과/ 220 [4] 과잉피난과 오상피난/ 221
[5] 의무의 충돌/ 221
제4절 자구행위 ·································································································· 226
[1] 서 설/ 226 [2] 자구행위의 성립요건/ 227
[3] 자구행위의 효과/ 232 [4] 과잉자구행위와 오상자구행위/ 232
제5절 피해자의 승낙 ·························································································· 234
[1] 양 해/ 234 [2] 피해자의 승낙/ 236
[3] 추정적 승낙/ 240
제6절 정당행위 ·································································································· 244
[1] 서 설/ 244 [2] 법령에 의한 행위/ 245
[3] 업무로 인한 행위/ 253 [4] 사회상규에 위배되지 않는 행위/ 258
제4장 책임론
제1절 책임의 일반이론 ······················································································· 267
[1] 서 설/ 267 [2] 책임의 근거/ 268
[3] 책임의 본질/ 270 [4] 책임의 판단/ 273
제2절 책임능력 ·································································································· 274
[1] 서 설/ 274 [2] 책임무능력자/ 275
[3] 한정책임능력자/ 280 [4] 원인에 있어서 자유로운 행위/ 282
제3절 위법성의 인식과 금지착오 ·········································································· 287
[1] 위법성의 인식/ 287 [2] 금지착오/ 291
[3] 위법성조각사유의 전제사실에 대한 착오/ 302
제4절 기대가능성 ······························································································· 306
[1] 기대가능성이론/ 306 [2] 강요된 행위/ 310
[3] 초법규적 책임조각사유/ 313
제5장 미수론
제1절 미수범의 일반이론 ···················································································· 316
[1] 범죄실현의 단계/ 316 [2] 미수범의 처벌근거/ 317
제2절 장애미수 ·································································································· 320
[1] 의 의/ 320 [2] 장애미수의 성립요건/ 320
[3] 장애미수의 처벌/ 327 [4] 관련문제/ 327
제3절 중지미수 ·································································································· 328
[1] 서 설/ 328 [2] 중지미수의 성립요건/ 329
[3] 중지미수의 처벌/ 335 [4] 관련문제/ 335
제4절 불능미수 ·································································································· 338
[1] 서 설/ 338 [2] 불능미수의 성립요건/ 339
[3] 불능미수의 처벌 및 관련문제/ 344
제5절 예비죄 ····································································································· 346
[1] 서 설/ 346 [2] 예비죄의 법적 성격/ 347
[3] 예비죄의 성립요건/ 348 [4] 관련문제/ 350
제6장 정범 및 공범론
제1절 정범·공범의 일반이론 ················································································ 353
[1] 서 설/ 353 [2] 정범과 공범의 구별/ 358
[3] 공범의 종속성과 처벌근거/ 362
제2절 간접정범 ································································································· 366
[1] 서 설/ 366 [2] 간접정범의 성립요건/ 367
[3] 간접정범의 처벌/ 372 [4] 관련문제/ 372
[5] 특수교사·방조/ 375
제3절 공동정범 ·································································································· 376
[1] 서 설/ 376 [2] 공동정범의 성립요건/ 378
[3] 공동정범의 처벌/ 393 [4] 관련문제/ 394
제4절 교사범 ····································································································· 404
[1] 서 설/ 404 [2] 교사범의 성립요건/ 405
[3] 교사의 착오/ 410 [4] 교사범의 처벌/ 412
[5] 관련문제/ 413
제5절 종 범 ······································································································ 415
[1] 서 설/ 415 [2] 종범의 성립요건/ 416
[3] 종범의 착오/ 423 [4] 종범의 처벌/ 425
[5] 관련문제/ 425
제6절 공범과 신분 ···························································································· 427
[1] 서 설/ 427 [2] 형법 제33조의 해석론/ 429
[3] 소극적 신분과 공범/ 435
제7장 죄수론
제1절 죄수의 일반이론 ······················································································· 437
[1] 죄수론의 의의/ 437 [2] 죄수결정의 기준/ 437
[3] 수죄의 처벌/ 441
제2절 일 죄 ······································································································ 442
[1] 서 설/ 442 [2] 법조경합 / 442 [3] 포괄일죄/ 450
제3절 수 죄 ······································································································ 461
[1] 상상적 경합/ 461 [2] 실체적 경합/ 469

제3편 형 벌 론
제1절 형벌의 종류 ····························································································· 481
[1] 서 설/ 481 [2] 사 형/ 482 [3] 자유형/ 483
[4] 재산형/ 484 [5] 명예형/ 494 [6] 형의 경중/ 496
제2절 형의 양정 ································································································ 497
[1] 의 의/ 497 [2] 형의 양정의 단계/ 497
[3] 형의 가중·감경·면제/ 498 [4] 양 형/ 505
[5] 판결선고 전 구금 및 판결의 공시/ 507
제3절 누 범 ······································································································ 509
[1] 서 설/ 509 [2] 누범가중의 요건/ 510
[3] 누범의 효과/ 513[4] 판결선고 후의 누범발각/ 514
제4절 집행유예·선고유예·가석방 ··········································································· 515
[1] 집행유예/ 515 [2] 선고유예/ 521 [3] 가석방/ 525
제5절 형의 시효·소멸·기간 ·················································································· 529
[1] 형의 시효/ 529 [2] 형의 소멸·실효와 복권·사면/ 530
[3] 형의 기간/ 533
제6절 보안처분 ·································································································· 534
[1] 보안처분의 일반이론/ 534 [2] 현행법상의 보안처분/ 536
[판례색인] ········································································································ 540