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2022년 12월부터 2023년 6월까지의 대법원 형법 판례를 정리한 교재이다. 최신판례에 대한 충분한 준비를 할 수 있도록 내용을 구성하였다. 가장 먼저 판례의 사실관계를 정리하여 소개함으로써 판례를 보다 정확하고 깊게 이해할 수 있도록 하였다. 판례의 내용을 소개하기 전에 먼저 질문의 형태로 그 사건에서 다투어졌던 쟁점을 세분화하여 구체적으로 부각시킴으로써 판례를 보다 정확하게 이해할 수 있도록 하였다. 판결요지는 전체를 수록하였고, 이것만으로 이해가 어려울 경우에는 판결문에서 판결이유를 발췌해서 소개하였다.

…… 형 법 총 론 ……
[1] 죄형법정주의···································································································· 3
1. 죄형법정주의에 맞는 형벌법규의 해석원칙 (大判 2022도7290)································· 3
2. 확장해석금지의 원칙 (大判 2019도16782)····························································· 5
[2] 형법의 시간적 적용범위····················································································· 7
3. 포괄일죄의 신설과 소급효 (大判 2022도10660)····················································· 7
4. 형법 제1조 제2항과 ‘동기설’의 폐기 (大判 2020도16420, 전원합의체 판결)·············· 9
5. 형법 제1조 제2항의 적용요건 (大判 2022도4610)················································ 14
[3] 행위의 주체와 객체························································································· 16
6. 대표자가 법규위반행위를 한 경우 법인처벌의 근거 (大判 2021도701)····················· 16
[4] 인과관계와 객관적 귀속··················································································· 17
7. 실화죄와 이중적 인과관계 (大判 2022도16120)···················································· 17
[5] 과실범··········································································································· 19
8. 의료사고에서 의사에게 업무상과실치사상죄를 인정하기 위한 요건 (大判 2022도11163)················································································································ 19
9. 수직적 분업과 신뢰의 원칙 (大判 2022도1499)···················································· 21
[6] 정당방위········································································································ 24
10. 정당방위에서 침해의 현재성 판단 (大判 2020도6874)········································· 24
[7] 정당행위········································································································ 26
11. 근로자의 쟁의행위가 정당행위가 되기 위한 요건 (大判 2019도10516)·················· 26
[8] 종 범············································································································· 27
12. 목적범에 대한 방조범의 성립요건 (大判 2020도12563)······································· 27
[9] 공범과 신분···································································································· 29
13. 간호사의 행위가 무면허 의료행위인가의 판단기준 (大判 2017도10007)················· 29
[10] 일 죄··········································································································· 31
14. 포괄일죄와 공소사실의 동일성 판단 (大判 2022도8806)······································ 31
[11] 형벌의 종류·································································································· 33
15. 몰수·추징과 불고불리의 원칙 (大判 2022도8592)················································ 33
16. 몰수·추징과 불고불리의 원칙 (大判 2022도8662)················································ 35
[12] 형의 시효·소멸·기간······················································································· 37
17. 추징형 시효중단의 효력 (大決 2021모3227)······················································· 37

…… 형 법 각 론 ……
[1] 과실치사상의 죄······························································································ 39
1. 업무상과실치상죄에서의 주의의무의 내용 (大判 2022도11950)······························· 39
[2] 협박의 죄······································································································· 41
2. 협박죄에서 고지된 해악의 내용 (大判 2022도9187)·············································· 41
[3] 강간과 추행의 죄···························································································· 43
3. 주거침입강제추행죄에 대한 위헌결정 (大判 2023도162)········································ 43
[4] 명예에 관한 죄······························································································· 44
4. 형법 제310조의 적용요건 (大判 2022도13425)···················································· 44
5. 모욕죄에서 추상적 판단 표현의 정도 (大判 2022도4719)······································ 46
6. 표현의 자유와 명예보호가 충돌하는 경우 모욕죄의 성립여부의 판단방법 (大判 2017도19229)················································································································ 47
7. 모욕과 사회상규에 위배되지 않는 행위 (大判 2019도14421)·································· 49
[5] 신용·업무·경매에 관한 죄················································································· 50
8. 집행관의 강제집행의 업무성 여부 (大判 2020도34)··············································· 50
9. 업무의 보호가치 (大判 2021도16482)································································· 51
10. 업무방해죄에서 ‘위력’의 의미 (大判 2019도7446)··············································· 53
[6] 사기의 죄······································································································· 55
11. 도급계약 등이 행정법규 등을 위반한 경우 사기죄의 성립 여부 (大判 2017도14104)················································································································ 55
12. 절취와 사취의 구별기준 (大判 2022도12494)····················································· 57
13. 기망하여 취득한 신용카드 사용의 의미 (大判 2022도10629)································ 59
[7] 횡령의 죄······································································································· 60
14. ‘반환의 거부’가 횡령죄를 구성하기 위한 요건 (大判 2021도2088)························ 60
[8] 배임의 죄······································································································· 62
15. 채무자의 양도담보 목적물 보관 등 의무의 성격 (大判 2020도8682, 전원합의체 판결)······················································································································ 62
16. 배임죄에서 재산상 손해의 의미 (大判 2018도13604)·········································· 64
[9] 손괴의 죄······································································································· 66
17. 재물손괴죄와 영득죄의 구별기준 (大判 2022도1410)··········································· 66
[10] 권리행사를 방해하는 죄················································································· 67
18. 권리행사방해죄의 주체 및 객체 (大判 2022도5827) 〈미간행〉······························ 67
[11] 문서에 관한 죄····························································································· 68
19. 허위공문서작성죄에서 ‘허위’의 의미 (大判 2022도6886)······································ 68
20. 공문서 부정행사의 의미 (大判 2021도14514)····················································· 70
[12] 공무원의 직무에 관한 죄················································································ 72
21. 직권남용권리행사방해죄의 성립요건 (大判 2020도15105)···································· 72
22. ‘의무 없는 일을 하게 한 때’인가의 판단방법 (大判 2020도18296)························ 75
[13] 무고의 죄····································································································· 77
23. ‘성명불상자’에 대한 무고죄의 성립여부 (大判 2020도11754) 〈미간행〉················· 77

…… 수 사 와 증 거 ……
[1] 대물적 강제수사······························································································ 78
1. 「통신비밀보호법」상 전기통신 감청의 의미 (大判 2022도9877)······························· 78
2. 수사기관의 영장 없는 사진촬영의 적법성 (大判 2018도8161)································ 80
[2] 증명의 기본원칙······························································································ 82
3. 증명력의 판단방법 (大判 2022도11245, 2022보도52)··········································· 82
4. 성폭력 피해자의 진술의 증명력 판단방법 등 (大判 2020도11185)·························· 84
[3] 전문법칙········································································································ 86
5. 공사사실 중 범죄 ‘일시’ 특정의 정도 및 검찰 피의자신문조서의 증거능력 (大判 2023도2102)·················································································································· 86
6. 수사과정에서 작성한 진술서의 증거능력 (大判 2022도9510)·································· 88
7. 세무공무원이 작성한 범칙혐의자심문조서의 증거능력 (大判 2022도8824)················ 90

※ 참고판례·········································································································· 92

〈 서 문 〉

“2023년 상반기 최신판례”에 대하여

본서는 2022년 12월부터 2023년 6월까지의 대법원 형법 판례를 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 문제인지도 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.
2023. 6. 25.
법학박사 신 호 진