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…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
1. 위헌결정의 소급효 (大判 2021도14878) ······························································· 3
2. 위헌결정의 소급효 여부 (大判 2020도68) ···························································· 6
3. 유추해석금지의 원칙 (大判 2021도10981/ 大判 2018도18872) ······························ 8
[2] 형법의 시간적 적용범위 ·················································································· 10
4. 형법 제1조 제2항과 동기설 (大判 2017도15175) ················································ 10
[3] 행위의 주체와 객체 ························································································ 11
5. 양벌규정에 의한 수범자 영역의 확장 (大判 2020도1942) ····································· 11
[4] 부작위범 ······································································································· 13
6. 진정부작위범의 공동정범의 성립요건 (大判 2021도11110) ··································· 13
[5] 정당행위 ······································································································· 14
7. 정당행위 (大判 2017도10634) ·········································································· 14
8. 사회상규에 위배되지 아니하는 행위 (大判 2021도9680) ······································ 16
[6] 위법성의 인식과 금지착오 ··············································································· 18
9. 법률의 착오와 정당한 이유 (大判 2021도10903) ················································· 18
[7] 정범·공범의 일반이론 ····················································································· 20
10. 대향범과 방조범의 성립여부 (大判 2020도7866) ··············································· 20
[8] 수 죄 ··········································································································· 22
11. 형법 제39조 제1항의 적용요건 (大判 2021도8719) ··········································· 22
[9] 형벌의 종류 ·································································································· 23
12. 형법상 몰수의 대상인 ‘물건’의 의미 (大判 2021도7168) ···································· 23
[10] 누 범 ········································································································· 24
13. 누범기간의 기산점 (大判 2020도8728) ····························································· 24
14. 두 개의 징역형 중 하나의 형 집행을 마친 후 죄를 범한 경우 (大判 2021도8764) ·· 25
15. 특정범죄가중법 제5조의4 제5항에서 ‘징역형을 받은 경우’의 의미 (大判 2020도13705) ·························································································································· 26

…… 형 법 각 론 ……
[1] 상해와 폭행의 죄 ··························································································· 28
1. 자동차 운전자 폭행 등 죄에서 ‘자동차’의 의미 (大判 2022도1013) ······················· 28
[2] 강요의 죄 ····································································································· 29
2. 강요죄의 폭행의 의미 (大判 2018도1346) ·························································· 29
[3] 강간과 추행의 죄 ··························································································· 30
3. 강제추행죄에서 추행의 의미 (大判 2021도7538) ················································· 30
4. 동성인 군인 사이의 추행행위의 가벌성 (大判 2019도3047, 전원합의체 판결) ········· 32
5. 촬영물의 ‘공공연한 전시’의 의미 (大判 2022도1683) ··········································· 37
6. 아동에 대한 성적 학대행위인가의 판단기준 (大判 2020도12419) ·························· 38
[4] 명예에 관한 죄 ······························································································ 40
7. 명예훼손죄와 모욕죄에서의 공연성과 고의의 내용 (大判 2020도8336) ··················· 40
8. 명예훼손죄에서 ‘사실 적시’의 의미와 판단기준 (大判 2020도15642) ····················· 42
9. 명예훼손의 고의와 사실의 적시 (大判 2021도17744) ··········································· 44
10. ‘비방의 목적’과 ‘공공의 이익을 위한 것’의 관계 (大判 2022도4171) ···················· 45
11. 모욕죄에서 ‘모욕’의 의미 (大判 2019도7370) ··················································· 47
12. 모욕과 사회상규에 위배되지 않는 행위 (大判 2020도16897) ······························ 49
[5] 신용·업무와 경매에 관한 죄 ············································································ 51
13. 업무방해죄에서 위력의 의미 및 기수시기 (大判 2016도3986) ····························· 51
14. 주거침입죄에서 ‘침입’의 의미와 업무방해죄에서 ‘위력’의 의미 (大判 2021도9055) · 53
15. 컴퓨터등장애업무방해죄의 성립여부 등 (大判 2021도1533) ································ 55
[6] 주거침입의 죄 ······························································································· 57
16. 주거침입죄에서 ‘침입’의 의미 (大判 2021도15507) ············································ 57
17. 일반적 출입이 허용된 장소에 불법행위를 목적으로 들어간 경우 (大判 2017도18272, 전원합의체 판결) ································································································· 59
18. 주거침입죄에서 ‘침입’의 의미 (大判 2022도3801) ············································· 62
[7] 사기의 죄 ····································································································· 65
19. 행정법규 등의 위반과 기망행위 (大判 2016도16343) ········································· 65
20. 소송사기의 성립요건 (大判 2022도1227) ·························································· 67
[8] 횡령의 죄 ····································································································· 69
21. 횡령죄에서 위탁관계의 의미 (大判 2017도21286) ············································· 69
22. 채권양도인의 지위 (大判 2017도3829, 전원합의체 판결) ···································· 71
[9] 배임의 죄 ····································································································· 75
23. 착오로 이체된 가상자산과 배임죄의 주체 (大判 2020도9789) ····························· 75
24. 자료 무단반출시 업무상배임죄의 성립을 위한 자료의 성격 (大判 2018도4794) ····· 77
25. 배임죄에서 ‘재산상 이익 취득’과 ‘재산상 손해 발생’의 관계 (大判 2016도3452) ··· 79
[10] 공안을 해하는 죄 ························································································· 81
26. 범죄단체 구성·활동죄와 개별범죄의 관계 (大判 2022도6993) ······························ 81
[11] 문서에 관한 죄 ···························································································· 83
27. 명의신탁에서 신탁자가 수탁자 명의의 문서를 작성할 권한의 유무 (大判 2021도17197) ··············································································································· 83
28. 허위공문서작성죄에서 ‘허위’의 의미 등 (大判 2020도9714) ································ 85
29. 공문서 부정행사의 의미 (大判 2021도14514) ··················································· 87
[12] 공무원의 직무에 관한 죄 ·············································································· 89
30. 직무유기의 의미 (大判 2021도8361) ································································ 89
31. 공무상비밀누설죄에서 ‘누설’의 의미 (大判 2021도2486) ···································· 91
[13] 공무방해에 관한 죄 ······················································································ 93
32. 공무집행방해죄에서 직무집행의 적법성 (大判 2021도13883) ······························ 93
33. 공무집행의 적법성의 요건과 판단기준 (大判 2018도2993) ·································· 95
34. 위계에 의한 공무집행방해죄와 건조물침입죄 (大判 2018도15213) ······················· 97
35. 위계에 의한 공무집행방해죄와 불실기재여권행사죄 (大判 2020도12239) ·············· 99
36. 접견교통권 행사의 한계 일탈과 위계에 의한 공무집행방해죄의 성립 여부 (大判 2021도244) ·············································································································· 100
[14] 무고의 죄 ·································································································· 102
37. 무고죄의 고의와 목적 (大判 2022도3413) ······················································ 102

…… 수 사 와 증 거 ……
[1] 수사의 개시 ································································································ 103
1. 부재자 재산관리인의 고소권 (大判 2021도2488) ··············································· 103
2. 반의사불벌죄에서 처벌불원의사표시의 시기 (大判 2021도10010) ························ 105
[2] 대물적 강제수사 ·························································································· 107
3. 압수·수색절차의 적법성 (大決 2019모2584) ······················································ 107
4. 정보저장매체에 대한 압수의 절차와 방법 (大判 2022도2960) ····························· 110
5. 전자정보에 대한 압수의 방법 (大決 2021모1586) ·············································· 112
6. 압수·수색절차의 적법성 (大決 2016모587) ······················································· 114
7. 원격지 서버 저장정보에 대한 압수·수색의 적법성 (大決 2020모735) ··················· 116
8. 임의제출된 정보저장매체에 대한 압수의 범위 (大判 2016도348, 전원합의체 판결) · 118
9. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2019도4938) ··········· 123
10. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2019도7342) ········· 125
11. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2021도11170) ······· 129
12. 통신비밀보호법상의 ‘공개되지 아니한 타인간의 대화’의 의미 (大判 2020도1007) · 134
[3] 증거법의 기본개념 ······················································································· 136
13. 간접증거에 의한 증명의 정도 (大判 2022도2236) ············································ 136
[4] 증명의 기본원칙 ·························································································· 138
14. 증명과 증명력 판단 (大判 2018도19472, 2018전도126) ·································· 138
15. 소추조건의 존재에 대한 증명방법 (大判 2021도404) ······································· 139
16. 주관적 구성요건요소의 증명방법 (大判 2018도18045) ····································· 140
17. ‘위드마크 공식’의 적용을 위한 증명의 방법 (大判 2021도14074) ······················ 141
18. 성폭력 피해자의 진술의 신빙성 판단방법 (大判 2021도3451) ··························· 143
19. 성폭력 피해자의 진술의 증명력 판단방법 등 (大判 2020도11185) ····················· 145
[5] 위법수집증거배제법칙 ··················································································· 147
20. 외국인에 대한 체포·구속시 영사통보권을 고지하지 않은 경우 (大判 2021도17103) · 147
[6] 전문법칙 ····································································································· 149
21. 진술조서의 실질적 진정성립을 증명할 수 있는 영상녹화물의 의미 (大判 2022도364) · 149
22. 「성폭력처벌법」상 영상녹화물의 증거능력 (大判 2021도14530, 2021전도143) ···· 153

※ 참고판례 ······································································································· 155

[서 문 ]

“2022년 1년간 최신판례”에 대하여…

본서는 2021년 12월부터 2022년 11월까지 1년간의 대법원 형사판례를 정리한 교재이다. 최근의 출제경향을 보면 최신판례의 출제비중이 상당히 높다.
본서를 통해서 최신판례에 대한 충분한 준비를 할 수 있도록 내용을 구성하였다.

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. 또한 최근의 문제경향이 “사례형”으로 변화해 가고 있으므로 사례를 중시하는 학습방법의 중요성이 더욱 강조되는 시점이라고 할 수 있다.

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. 11. 28.
법학박사 신 호 진