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2023 상반기 형법 + 수사와 증거 최신판례정리 - 221201-230615

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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.

 

 

목차

…… 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 

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