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신호진의 『2023 형법 3년간 판례정리』는 〈죄형법정주의〉, 〈형법의 시간적 적용범위〉, 〈행위의 주체와 객체〉 등이 수록되어 있는 책이다.

…… 형 법 총 론 ……
[1] 죄형법정주의 ·································································································· 3
1. 헌법불합치결정의 성격 및 효력 (大判 2017도8610) ·············································· 3
2. 위헌결정의 소급효 (大判 2021도14878) ······························································· 4
3. 위헌결정의 소급효가 인정되지 않는 경우 (大判 2020도68) ···································· 7
4. 음주운전전과의 계산과 소급효금지의 원칙 (大判 2020도7154) ······························· 8
5. 운전면허 취소처분 취소의 소급효 (大判 2019도11826) ········································· 9
6. 공소시효의 정지·연장·배제와 소급효 (大判 2020도3694) ······································ 10
7. 죄형법정주의에 맞는 형벌법규의 해석원칙 (大判 2022도7290) ····························· 12
8. 유추해석금지의 원칙 (大判 2017도13182) ·························································· 14
9. 확장해석금지의 원칙 (大判 2019도16782) ·························································· 16
10. 유추해석금지의 원칙 (大判 2020도12017) ························································ 18
[2] 형법의 시간적 적용범위 ·················································································· 21
11. 포괄일죄의 신설과 소급효 (大判 2022도10660) ················································ 21
12. 형법 제1조 제2항과 ‘동기설’의 폐기 (大判 2020도16420, 전원합의체 판결) ········· 23
13. 형법 제1조 제2항의 적용요건 (大判 2022도4610) ············································· 28
[3] 행위의 주체와 객체 ························································································ 30
14. 대표자가 법규위반행위를 한 경우 법인처벌의 근거 (大判 2021도701) ················· 30
15. 법인처벌의 근거 (大判 2019도3595) ································································ 31
16. 양벌규정에 의한 수범자 영역의 확장 (大判 2020도1942) ··································· 32
[4] 부작위범 ······································································································· 34
17. 진정부작위범의 공동정범 성립요건 (大判 2018도12973) ···································· 34
[5] 인과관계와 객관적 귀속 ·················································································· 36
18. 실화죄와 이중적 인과관계 (大判 2022도16120) ················································ 36
[6] 과실범 ·········································································································· 38
19. 의료사고에서 의사에게 업무상과실치사상죄를 인정하기 위한 요건 (大判 2022도11163) ··············································································································· 38
20. 수직적 분업과 신뢰의 원칙 (大判 2022도1499) ················································· 40
21. 신뢰의 원칙의 적용한계 (大判 2022도1401) 〈미간행〉 ······································· 43
[7] 정당방위 ······································································································· 45
22. 정당방위에서 침해의 현재성 판단 (大判 2020도6874) ········································ 45
23. 싸움과 정당방위 (大判 2020도15812) ······························································ 47
[8] 정당행위 ······································································································· 48
24. 정당행위 (大判 2017도10634) ········································································ 48
25. 근로자의 쟁의행위가 정당행위가 되기 위한 요건 (大判 2019도10516) ················· 50
26. 노동조합 조합활동의 정당성 인정요건 (大判 2017도2478) ·································· 51
27. 쟁의행위의 정당성 (大判 2015도1927) ····························································· 53
28. 사회상규에 위배되지 아니하는 행위 (大判 2021도9680) ····································· 55
[9] 위법성의 인식과 금지착오 ··············································································· 56
29. 법률의 착오와 정당한 이유 (大判 2021도10903) ··············································· 56
[10] 정범·공범의 일반이론 ··················································································· 58
30. 대향범과 방조범의 성립여부 (大判 2020도7866) ··············································· 58
31. 대향범과 공범규정의 적용 여부 (大判 2016도3048) ··········································· 60
[11] 종 범 ········································································································· 62
32. 종범의 성립요건 (大判 2022도649) 〈미간행〉 ··················································· 62
33. 목적범에 대한 방조범의 성립요건 (大判 2020도12563) ······································ 63
34. 방조의 성립여부 (大判 2017도19025, 전원합의체 판결) ····································· 65
35. 방조행위와 정범행위 사이의 인과관계 등 (大判 2015도12632) ··························· 68
[12] 공범과 신분 ································································································ 71
36. 공범과 신분 (大判 2021도5000) ······································································ 71
37. 간호사의 행위가 무면허 의료행위인가의 판단기준 (大判 2017도10007) ··············· 72
[13] 죄수론 ········································································································ 74
38. 도로교통법상 무면허운전죄의 죄수판단의 기준 (大判 2021도17110) 〈미간행〉 ····· 74
39. 포괄일죄와 공소사실의 동일성 판단 (大判 2022도8806) ····································· 75
40. 음란물 제작과 소지의 관계 (大判 2021도2993) ················································· 77
41. 포괄일죄와 실체적 경합범의 구별기준 (大判 2020도1355) ·································· 78
42. 형법 제39조 제1항의 적용요건 (大判 2021도8719) ··········································· 81
[14] 형벌론 ········································································································ 82
43. 몰수·추징과 불고불리의 원칙 (大判 2022도8592) ·············································· 82
44. 몰수·추징과 불고불리의 원칙 (大判 2022도8662) ·············································· 84
45. 형법상 몰수의 대상인 ‘물건’의 의미 (大判 2021도7168) ···································· 86
46. 형법 제48조의 몰수의 대상 (大判 2020도10970) ·············································· 87
47. 형의 임의적 감경의 방법 (大判 2018도5475, 전원합의체 판결) ··························· 88
48. 누범기간의 기산점 (大判 2020도8728) ····························································· 90
49. 두 개의 징역형 중 하나의 형 집행을 마친 후 죄를 범한 경우 (大判 2021도8764) ·· 91
50. 특정범죄가중법 제5조의4 제5항에서 ‘징역형을 받은 경우’의 의미 (大判 2020도13705) ·························································································································· 92
51. 특가법 제5조의4 제5항의 절도와 누범가중 (大判 2019도18947) ························· 94
52. 사회봉사명령시 원상회복명령의 부과 여부 (大判 2017도18291) ·························· 96
53. 추징형 시효중단의 효력 (大決 2021모3227) ····················································· 98

…… 형 법 각 론 ……
[1] 상해와 폭행의 죄 ··························································································· 99
1. 자동차 운전자 폭행 등 죄에서 ‘자동차’의 의미 (大判 2022도1013) ······················· 99
[2] 과실치사상의 죄 ·························································································· 101
2. 업무상과실치상죄에서의 주의의무의 내용 (大判 2022도11950) ··························· 101
[3] 협박의 죄 ··································································································· 103
3. 협박죄에서 고지된 해악의 정도 (大判 2022도9187) ··········································· 103
[4] 강요의 죄 ··································································································· 105
4. 강요죄의 폭행의 의미 (大判 2018도1346) ························································ 105
[5] 약취·유인 및 인신매매의 죄 ·········································································· 106
5. 부작위에 의한 미성년자약취 (大判 2019도16421) ············································· 106
[6] 강간과 추행의 죄 ························································································· 108
6. 강제추행죄에서 추행의 의미 (大判 2021도7538) ··············································· 108
7. 동성인 군인 사이의 추행행위의 가벌성 (大判 2019도3047, 전원합의체 판결) ······· 111
8. 알코올 블랙아웃(black out)과 심신상실 (大判 2018도9781) ······························· 116
9. 위계에 의한 간음죄에서 ‘위계’의 의미 (大判 2015도9436, 전원합의체 판결) ········ 118
10. 위계에 의한 간음죄에서 오인·착각·부지의 대상 (大判 2021도9041) 〈미간행〉 ····· 121
11. 업무상 위력에 의한 추행의 객체와 위력의 의미 (大判 2020도5646) ·················· 122
12. 주거침입강제추행죄에 대한 위헌결정 (大判 2023도162) ··································· 123
13. 주거침입유사강간죄의 주체 및 실행의 착수시기 (大判 2020도17796) ················ 124
14. 공중 밀집장소에서의 추행의 의미 (大判 2015도7102) ······································ 126
[7] 명예에 관한 죄 ···························································································· 131
15. 전파가능성과 공연성 (大判 2020도5813, 전원합의체 판결) ······························· 131
16. 명예훼손죄와 모욕죄에서의 공연성과 고의의 내용 (大判 2020도8336) ··············· 137
17. 명예훼손죄에서 ‘사실 적시’의 의미와 판단기준 (大判 2020도15642) ·················· 139
18. 명예훼손죄에서 ‘사실적시’의 의미 (大判 2020도12861) ···································· 141
19. 명예훼손죄의 성립요건 (大判 2021도1089) 〈미간행〉 ······································· 143
20. 공적인 인물에 대한 명예훼손 (大判 2016도14995) ·········································· 144
21. ‘사실을 드러내어’의 의미와 정도 (大判 2019도12750) ····································· 146
22. 명예훼손의 고의와 사실의 적시 (大判 2021도17744) ······································· 148
23. 형법 제310조의 적용요건 (大判 2022도13425) ··············································· 149
24. 형법 제310조의 적용요건 (大判 2021도10827) 〈미간행〉 ································· 151
25. 형법 제310조의 적용요건 (大判 2020도8421) 〈미간행〉 ··································· 153
26. 형법 제310조의 적용요건 (大判 2021도6416) ················································· 155
27. ‘사람을 비방할 목적’과 ‘공공의 이익을 위한 것’의 관계 (大判 2020도11471) ····· 156
28. ‘비방의 목적’과 ‘공공의 이익을 위한 것’의 관계 (大判 2022도4171) ·················· 159
29. 모욕죄에서 추상적 판단 표현의 정도 (大判 2022도4719) ································· 161
30. 모욕죄에서 ‘모욕’의 의미 (大判 2019도7370) ·················································· 162
31. 표현의 자유와 명예보호가 충돌하는 경우 모욕죄의 성립여부의 판단방법 (大判 2017도19229) ············································································································· 164
32. 모욕과 사회상규에 위배되지 않는 행위 (大判 2017도17643) ····························· 166
33. 모욕과 사회상규에 위배되지 않는 행위 (大判 2020도14576) ····························· 168
34. 모욕과 사회상규에 위배되지 않는 행위 (大判 2019도14421) ····························· 170
35. 모욕과 사회상규에 위배되지 않는 행위 (大判 2020도16897) ····························· 171
36. 모욕과 사회상규에 위배되지 않는 행위 (大判 2016도88) ·································· 172
[8] 신용·업무와 경매에 관한 죄 ·········································································· 173
37. 집행관의 강제집행의 업무성 여부 (大判 2020도34) ········································· 173
38. 업무의 보호가치 (大判 2021도16482) ···························································· 174
39. 업무방해죄에서 ‘허위사실 유포’의 의미와 판단방법 (大判 2021도6634) ············· 176
40. 업무방해죄에서 ‘위계’의 의미 (大判 2021도15246) 〈미간행〉 ···························· 177
41. 위계의 의미 및 업무방해죄의 기수시기 (大判 2016도14415) ····························· 178
42. 업무담당자의 심사의무와 업무방해죄의 기수시기 (大判 2017도19283) ··············· 179
43. 주거침입죄에서 ‘침입’의 의미와 업무방해죄에서 ‘위력’의 의미 (大判 2021도9055) ························································································································· 181
44. 업무방해죄에서 ‘위력’의 의미 (大判 2019도7446) ············································ 183
45. 업무방해죄에서 위력의 의미 및 기수시기 (大判 2016도3986) ··························· 185
46. 컴퓨터등장애업무방해죄의 성립여부 등 (大判 2021도1533) ······························ 187
[9] 비밀침해의 죄 ····························································································· 189
47. 전자기록 등 내용탐지죄의 객체 (大判 2021도8900) 〈미간행〉 ··························· 189
[10] 주거침입의 죄 ··························································································· 191
48. 공동주거자가 다른 공동주거자의 의사에 반하여 들어간 경우 (大判 2020도6085, 전원합의체 판결) ····································································································· 191
49. 주거침입죄에서 ‘침입’의 의미 (大判 2021도15507) ·········································· 194
50. 주거침입죄에서 침입행위인가의 판단기준 (大判 2022도419) 〈미간행〉 ··············· 196
51. 주거침입죄에서 침입행위인가의 판단기준 (大判 2021도7087) 〈미간행〉 ············· 197
52. 주거침입죄에서 침입행위인가의 판단기준 (大判 2022도1717) 〈미간행〉 ············· 198
53. 주거침입죄에서 침입행위인가의 판단기준 (大判 2022도1272, 2022전도9) 〈미간행〉 ························································································································· 200
54. 일반적 출입이 허용된 장소에 불법행위를 목적으로 들어간 경우 (大判 2017도18272, 전원합의체 판결) ······························································································· 201
55. 타인이 공동주거자 일부의 동의를 얻어 들어간 경우 (大判 2020도12630, 전원합의체 판결) ················································································································ 204
[11] 절도의 죄 ·································································································· 207
56. 야간건조물침입절도죄의 성립 여부 (大判 2022도5659) 〈미간행〉 ······················ 207
[12] 강도의 죄 ·································································································· 208
57. 강도죄에서 ‘재산상 이익’의 의미 (大判 2020도7218) ······································· 208
58. 강도죄와 불법이득의사 (大判 2020도4539) ····················································· 209
[13] 사기의 죄 ·································································································· 210
59. 도급계약 등이 행정법규 등을 위반한 경우 사기죄의 성립 여부 (大判 2017도14104) ························································································································· 210
60. 행정법규 등의 위반과 기망행위 (大判 2016도16343) ······································· 212
61. 부작위에 의한 기망 (大判 2021도8468) ························································· 214
62. 부작위에 의한 기망과 고지의무 (大判 2018도13696) ······································· 215
63. 절취와 사취의 구별기준 (大判 2022도12494) ·················································· 217
64. 소송사기의 성립요건 (大判 2022도1227) ························································ 219
65. 기망하여 취득한 신용카드 사용의 의미 (大判 2022도10629) ····························· 221
[14] 횡령의 죄 ·································································································· 222
66. 부동산에 대한 보관자의 지위 (大判 2018도18010) ·········································· 222
67. 횡령죄에서 위탁관계의 의미 (大判 2017도21286) ············································ 223
68. 채권양도인의 지위 (大判 2017도3829, 전원합의체 판결) ·································· 225
69. 채권 양도담보계약에서 채무자의 지위 (大判 2020도12927) ······························ 229
70. 양자간 명의신탁과 횡령죄 (大判 2016도18761, 전원합의체 판결) ······················ 230
71. ‘반환의 거부’가 횡령죄를 구성하기 위한 요건 (大判 2021도2088) ····················· 232
[15] 배임의 죄 ·································································································· 234
72. 지입회사 운영자와 지입차주의 관계 (大判 2018도14365) ································· 234
73. 채무자의 양도담보 목적물 보관 등 의무의 성격 (大判 2020도8682, 전원합의체 판결) ························································································································· 235
74. 착오로 이체된 가상자산을 영득한 경우 (大判 2020도9789) ······························ 237
75. 동산 저당권 설정의무와 사무의 타인성 (大判 2020도6258, 전원합의체 판결) ····· 239
76. 채무자의 ‘담보 목적 채권의 담보가치를 유지·보전할 의무’의 성격 (大判 2020도3514) ························································································································· 241
77. 채권양도담보계약에서 채무자의 지위 (大判 2015도5184) ································· 243
78. 채무자의 ‘동산채권담보법’상 담보로 제공된 동산에 대한 보관의무 (大判 2019도14770, 전원합의체 판결) ···················································································· 244
79. 자료 무단반출시 업무상배임죄의 성립을 위한 자료의 성격 (大判 2018도4794) ··· 246
80. 신주인수권부사채의 인수대금이 납입되지 않은 경우 (大判 2022도3784) 〈미간행〉 ························································································································· 248
81. 배임죄에서 재산상 손해의 의미 (大判 2018도13604) ······································· 249
82. 대표권을 남용하여 약속어음을 발행한 경우 배임죄의 기수시기 (大判 2021도8833) 〈미간행〉 ·········································································································· 251
83. 배임죄에서 ‘재산상 이익 취득’과 ‘재산상 손해 발생’의 관계 (大判 2016도3452) · 253
84. 배임죄에서 ‘재산상 이익 취득’과 ‘재산상 손해 발생’의 관계 (大判 2022도3717) 〈미간행〉 ·················································································································· 255
85. 부작위에 의한 업무상배임죄의 실행의 착수시기 (大判 2020도15529) ················ 256
86. 매도인이 매수인에게 가등기를 해 준 후 이중매매를 한 경우 (大判 2019도16228) ························································································································· 257
87. 주권발행 전 주식의 이중양도 (大判 2015도6057) ············································ 258
88. 수분양권 매도인의 지위 (大判 2014도12104) ·················································· 259
89. 채무자의 저당권설정의무 및 부동산 양도담보설정의무의 성격 (大判 2019도14340, 전원합의체 판결) ·································································································· 260
90. 배임수재죄에서 ‘부정한 청탁’ 및 ‘제3자’의 의미 (大判 2019도17102) ················ 262
[16] 손괴의 죄 ·································································································· 264
91. ‘기타 방법’에 의한 재물손괴죄 (大判 2019도13764) ········································ 264
92. 재물손괴죄와 영득죄의 구별기준 (大判 2022도1410) ······································· 265
[17] 권리행사를 방해하는 죄 ·············································································· 266
93. 권리행사방해죄의 주체 및 객체 (大判 2022도5827) 〈미간행〉 ··························· 266
94. 권리행사방해죄에서 ‘자기의 물건’의 의미 (大判 2020도9801) ··························· 267
95. 채무자가 근저당권의 목적물을 처분한 경우 (大判 2020도14735) ······················ 268
96. 권리행사방해죄의 죄수 (大判 2021도16876) 〈미간행〉 ····································· 269
[18] 공안을 해하는 죄 ······················································································· 270
97. 범죄를 목적으로 하는 단체 및 집단의 의미 (大判 2019도16263) ······················ 270
98. 범죄단체 구성·활동죄와 개별범죄의 관계 (大判 2022도6993) ···························· 272
[19] 문서에 관한 죄 ·························································································· 274
99. 사문서와 공문서의 구별 (大判 2020도14666) ·················································· 274
100. 명의신탁에서 신탁자가 수탁자 명의의 문서를 작성할 권한의 유무 (大判 2021도17197) ············································································································· 275
101. 문서 위조의 정도 (大判 2019도8443) ··························································· 276
102. 문서 변조의 대상 (大判 2020도3809) ··························································· 278
103. 공문서변조의 정도 (大判 2018도19043) ······················································· 279
104. 자격모용사문서작성죄의 성립 여부 (大判 2021도17712) 〈미간행〉 ·················· 280
105. 사전자기록위작죄에서 ‘위작’의 의미 (大判 2019도11294, 전원합의체 판결) ······ 281
106. 허위공문서작성죄에서 ‘허위’의 의미 (大判 2022도6886) ································· 287
107. 허위공문서작성죄에서 ‘허위’의 대상 (大判 2019도18394) ······························· 289
108. 허위공문서작성죄에서 ‘허위’의 의미 등 (大判 2020도9714) ···························· 290
109. 공전자기록 등 불실기재죄와 허위신고 (大判 2021도11257) 〈미간행〉 ·············· 292
110. 자동차 중간생략형 명의신탁 (大判 2019도12042) ·········································· 293
111. 공문서 부정행사의 의미 (大判 2021도14514) ················································ 294
[20] 인장에 관한 죄 ·························································································· 296
112. 서명 위조의 정도 (大判 2020도14045) ························································· 296
[21] 먹는 물에 관한 죄 ····················································································· 297
· 수도불통죄의 대상이 되는 ‘수도 기타 시설’의 의미 (大判 2022도2817) 〈미간행〉 ··· 297
[22] 도박과 복표에 관한 죄 ··············································································· 298
113. 도박공간개설죄와 ‘영리의 목적’ (大判 2020도8978) ······································· 298
[23] 공무원의 직무에 관한 죄 ············································································ 299
114. 직무유기의 의미 (大判 2021도8361) ···························································· 299
115. 공무상비밀누설죄에서 ‘누설’의 의미 (大判 2021도2486) ································· 301
116. 직권남용권리행사방해죄의 성립요건 (大判 2020도15105) ······························· 303
117. ‘의무 없는 일을 하게 한 때’인가의 판단방법 (大判 2020도18296) ··················· 305
118. 직권남용과 의무 없는 일 (大判 2019도17879) ·············································· 307
119. 직권남용의 의미 및 판단기준 (大判 2020도12583) ········································ 308
120. 공여자와 수뢰자 사이의 뇌물의 직접 수수 여부 (大判 2017도12389) ··············· 311
121. 수뢰후부정처사죄에서 부정행위의 시기 (大判 2020도12103) ··························· 312
[24] 공무방해에 관한 죄 ···················································································· 313
122. 공무집행방해죄에서 직무집행의 적법성 (大判 2021도13883) ··························· 313
123. 공무집행의 적법성의 요건과 판단기준 (大判 2018도2993) ······························ 315
124. 접견교통권 행사의 한계 일탈과 위계에 의한 공무집행방해죄의 성립 여부 (大判 2021도244) ·············································································································· 317
125. 위계에 의한 공무집행방해죄와 불실기재여권행사죄 (大判 2020도12239) ·········· 319
126. 위계에 의한 공무집행방해죄와 건조물침입죄 (大判 2018도15213) ··················· 320
127. 위계에 의한 공무집행방해죄의 기수시기 (大判 2018도18582) ························· 322
128. 공무소에서 사용하는 전자기록의 의미 (大判 2015도19296) ···························· 324
[25] 위증과 증거인멸의 죄 ················································································· 326
129. 증거위조죄에서 ‘증거’ 및 ‘위조’의 개념 (大判 2020도2642) ···························· 326
[26] 무고의 죄 ·································································································· 328
130. ‘성명불상자’에 대한 무고죄의 성립여부 (大判 2020도11754) 〈미간행〉 ············ 328
131. 무고죄의 고의와 목적 (大判 2022도3413) ····················································· 329
132. 무고죄에서 자백의 절차와 시기 (大判 2020도13077) ····································· 330

참고판례 ··········································································································· 331
판례색인 ··········································································································· 353

〈 서 문 〉

“2023년 3년간 최신판례”에 대하여

본서는 2020년 7월부터 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 정확하게 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 모르면서 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