형법총론

제1편 형법의 일반이론

제1장 형법의 기본개념
제1절 형법의 의의와 성격 ······················································································ 5
[1] 형법의 의의/ 5 [2] 형법의 성격/ 5
제2절 형법의 기능 ································································································· 7
[1] 규제적 기능/ 7 [2] 보호적 기능/ 7 [3] 보장적 기능/ 8
제3절 형법의 발전 ······························································································· 9
[1] 형법의 역사/ 9 [2] 위험사회와 위험형법/ 9

제2장 형법의 기본원리
제1절 죄형법정주의 ······························································································ 11
[1] 죄형법정주의의 의의/ 11 [2] 죄형법정주의의 연혁과 사상적 배경/ 12
[3] 죄형법정주의의 현대적 의의/ 12 [4] 죄형법정주의의 내용/ 13
제2절 형법이론 ···································································································· 42
[1] 형법학파/ 42 [2] 형벌이론/ 45 [3] 범죄이론/ 47

제3장 형법의 적용범위
제1절 형법의 시간적 적용범위 ··············································································· 49
[1] 서 설/ 49 [2] 형법의 태도/ 49 [3] 한시법/ 60
제2절 형법의 장소적 적용범위 ·············································································· 65
[1] 서 설/ 65 [2] 형법의 태도/ 66
제3절 형법의 인적 적용범위 ················································································· 72
[1] 의 의/ 72 [2] 예 외/ 72

제2편 범 죄 론

제1장 범죄론의 기초
제1절 범죄의 의의와 종류 ····················································································· 77
[1] 범죄의 의의와 본질/ 77 [2] 범죄의 성립요건·처벌조건·소추조건/ 78
[3] 범죄의 종류/ 81
제2절 행위론 ······································································································· 89
[1] 서 설/ 89 [2] 행위론의 종류/ 90
제3절 범죄체계론 ································································································ 93
[1] 범죄체계론의 의의/ 93 [2] 범죄체계론의 현황/ 94
제4절 행위의 주체와 객체 ····················································································· 95
[1] 행위의 주체/ 95 [2] 행위의 객체와 보호의 객체/ 103

제2장 구성요건론
제1절 구성요건의 일반이론 ················································································· 105
[1] 구성요건의 의의/ 105 [2] 구성요건과 위법성의 관계/ 106
[3] 구성요건의 요소/ 107 [4] 구성요건해당성배제사유/ 108
제2절 결과반가치와 행위반가치 ··········································································· 109
[1] 결과반가치와 행위반가치/ 109 [2] 결과반가치론과 행위반가치론/ 109
[3] 결과반가치와 행위반가치의 내용/ 111
제3절 부작위범 ·································································································· 113
[1] 부작위/ 113 [2] 부작위범/ 115
[3] 부진정부작위범의 구성요건/ 119 [4] 관련문제/ 129
제4절 인과관계와 객관적 귀속 ············································································· 132
[1] 서 설/ 132 [2] 인과관계에 관한 학설/ 134
[3] 객관적 귀속이론/ 143 [4] 형법 제17조의 해석/ 150
제5절 구성요건적 고의 ······················································································· 151
[1] 고의의 의의와 본질/ 151 [2] 고의의 체계적 지위/ 152
[3] 고의의 내용/ 153 [4] 고의의 종류/ 155
제6절 구성요건적 착오 ······················································································· 163
[1] 서 설/ 163 [2] 구성요건적 착오의 유형/ 164
[3] 구성요건적 착오에 관한 학설과 판례/ 166
[4] 가감적 구성요건요소에 대한 착오/ 171
[5] 인과관계의 착오와 개괄적 고의/ 173 [6] 관련문제/ 178
제7절 과실범 ····································································································· 179
[1] 서 설/ 179 [2] 과실범의 성립요건/ 183
[3] 객관적 주의의무의 제한원리/ 192 [4] 관련문제/ 199
제8절 결과적 가중범 ·························································································· 200
[1] 서 설/ 200 [2] 결과적 가중범의 성립요건/ 203
[3] 관련문제/ 209

제3장 위법성론
제1절 위법성의 일반이론 ···················································································· 215
[1] 위법성의 의의/ 215 [2] 위법성의 본질/ 216
[3] 위법성의 평가방법/ 217 [4] 위법성조각사유/ 218
제2절 정당방위 ·································································································· 224
[1] 서 설/ 224 [2] 정당방위의 성립요건/ 225
[3] 정당방위의 효과/ 237 [4] 과잉방위와 오상방위/ 238
제3절 긴급피난 ·································································································· 244
[1] 서 설/ 244 [2] 긴급피난의 성립요건/ 246
[3] 긴급피난의 효과/ 252 [4] 과잉피난과 오상피난/ 253
[5] 의무의 충돌/ 254
제4절 자구행위 ·································································································· 258
[1] 서 설/ 258 [2] 자구행위의 성립요건/ 259
[3] 자구행위의 효과/ 263 [4] 과잉자구행위와 오상자구행위/ 264
제5절 피해자의 승낙 ·························································································· 266
[1] 양 해/ 266 [2] 피해자의 승낙/ 268
[3] 추정적 승낙/ 273
제6절 정당행위 ·································································································· 277
[1] 서 설/ 277 [2] 법령에 의한 행위/ 278
[3] 업무로 인한 행위/ 286 [4] 사회상규에 위배되지 않는 행위/ 291

제4장 책임론
제1절 책임의 일반이론 ······················································································· 300
[1] 서 설/ 300 [2] 책임의 근거/ 301
[3] 책임의 본질/ 303 [4] 책임의 판단/ 306
제2절 책임능력 ·································································································· 308
[1] 서 설/ 308 [2] 책임무능력자/ 309
[3] 한정책임능력자/ 314 [4] 원인에 있어서 자유로운 행위/ 316
제3절 위법성의 인식과 금지착오 ········································································· 324
[1] 위법성의 인식/ 324 [2] 금지착오/ 328
[3] 위법성조각사유의 전제사실에 대한 착오/ 341
제4절 기대가능성 ······························································································· 346
[1] 기대가능성이론/ 346 [2] 강요된 행위/ 351
[3] 초법규적 책임조각사유/ 355

제5장 미수론
제1절 미수범의 일반이론 ···················································································· 357
[1] 범죄실현의 단계/ 357 [2] 미수범의 처벌근거/ 359
제2절 장애미수 ·································································································· 361
[1] 의 의/ 361 [2] 장애미수의 성립요건/ 361
[3] 장애미수의 처벌/ 368 [4] 관련문제/ 369
제3절 중지미수 ·································································································· 370
[1] 서 설/ 370 [2] 중지미수의 성립요건/ 371
[3] 중지미수의 처벌/ 379 [4] 관련문제/ 380
제4절 불능미수 ·································································································· 385
[1] 서 설/ 385 [2] 불능미수의 성립요건/ 386
[3] 불능미수의 처벌 및 관련문제/ 392
제5절 예비죄 ···································································································· 395
[1] 서 설/ 395 [2] 예비죄의 법적 성격/ 396
[3] 예비죄의 성립요건/ 397 [4] 관련문제/ 400

제6장 정범 및 공범론
제1절 정범·공범의 일반이론 ················································································ 403
[1] 서 설/ 403 [2] 정범과 공범의 구별/ 408
[3] 공범의 종속성과 처벌근거/ 414
제2절 간접정범 ·································································································· 418
[1] 서 설/ 418 [2] 간접정범의 성립요건/ 419
[3] 간접정범의 처벌/ 425 [4] 관련문제/ 425
[5] 특수교사·방조/ 429
제3절 공동정범 ·································································································· 430
[1] 서 설/ 430 [2] 공동정범의 성립요건/ 432
[3] 공동정범의 처벌/ 451 [4] 관련문제/ 452
제4절 교사범 ····································································································· 465
[1] 서 설/ 465 [2] 교사범의 성립요건/ 466
[3] 교사의 착오/ 472 [4] 교사범의 처벌/ 475
[5] 관련문제/ 475
제5절 종 범 ······································································································ 478
[1] 서 설/ 478 [2] 종범의 성립요건/ 479
[3] 종범의 착오/ 487 [4] 종범의 처벌/ 489
[5] 관련문제/ 489
제6절 공범과 신분 ····························································································· 491
[1] 서 설/ 491 [2] 형법 제33조의 해석론/ 493
[3] 소극적 신분과 공범/ 501 [4] 입법론/ 503

제7장 죄수론
제1절 죄수의 일반이론 ······················································································· 504
[1] 죄수론의 의의/ 504 [2] 죄수결정의 기준/ 504
[3] 수죄의 처벌/ 508
제2절 일 죄 ······································································································ 509
[1] 서 설/ 509 [2] 법조경합 / 509 [3] 포괄일죄/ 519
제3절 수 죄 ······································································································ 530
[1] 상상적 경합/ 530 [2] 실체적 경합/ 539

제3편 형 벌 론
제1절 형벌의 종류 ····························································································· 551
[1] 서 설/ 551 [2] 사 형/ 551 [3] 자유형/ 552
[4] 재산형/ 553 [5] 명예형/ 564 [6] 형의 경중/ 565
제2절 형의 양정 ································································································ 567
[1] 의 의/ 567 [2] 형의 양정의 단계/ 567
[3] 형의 가중·감경·면제/ 567 [4] 양 형/ 574
[5] 판결선고 전 구금 및 판결의 공시/ 576
제3절 누 범 ······································································································ 579
[1] 서 설/ 579 [2] 누범가중의 요건/ 580
[3] 누범의 효과/ 583 [4] 판결선고 후의 누범발각/ 584
제4절 집행유예·선고유예·가석방 ··········································································· 586
[1] 집행유예/ 586 [2] 선고유예/ 593 [3] 가석방/ 597
제5절 형의 시효·소멸·기간 ·················································································· 601
[1] 형의 시효/ 601 [2] 형의 소멸·실효와 복권·사면/ 602
[3] 형의 기간/ 605
제6절 보안처분 ·································································································· 606
[1] 보안처분의 일반이론/ 606 [2] 현행법상의 보안처분/ 609

형법각론

제1편 개인적 법익에 대한 죄

제1장 생명과 신체에 대한 죄
제1절 살인의 죄 ································································································ 619
[1] 총 설/ 619 [2] 살인죄/ 619 [3] 존속살해죄/ 625
[4] 영아살해죄/ 627 [5] 촉탁·승낙살인죄/ 629 [6] 자살교사·방조죄/ 631
[7] 위계·위력에 의한 살인죄/ 634 [8] 살인예비·음모죄/ 635
제2절 상해와 폭행의 죄 ······················································································ 636
[1] 총 설/ 636 [2] 상해죄/ 637 [3] 존속상해죄/ 643
[4] 중상해죄/ 643 [5] 존속중상해죄/ 645 [6] 특수상해죄/ 645
[7] 상해치사죄·존속상해치사죄/ 646 [8] 상해의 동시범특례/ 646
[9] 폭행죄/ 647 [10] 존속폭행죄/ 652 [11] 특수폭행죄/ 652
[12] 폭행치사상죄/ 658 [13] 상습상해·폭행죄/ 658
제3절 과실치사상의 죄 ······················································································· 660
[1] 총 설/ 660 [2] 과실치상죄/ 661 [3] 과실치사죄/ 661
[4] 업무상과실·중과실치사상죄/ 662
제4절 낙태의 죄 ································································································ 673
[1] 총 설/ 673 [2] 자기낙태죄/ 675 [3] 동의낙태죄/ 675
[4] 업무상동의낙태죄/ 676 [5] 부동의낙태죄/ 677 [6] 낙태치사상죄/ 678
제5절 유기와 학대의 죄 ······················································································ 679
[1] 총 설/ 679 [2] 유기죄/ 680 [3] 존속유기죄/ 684
[4] 중유기죄·존속중유기죄/ 684 [5] 영아유기죄/ 684
[6] 학대죄/ 685 [7] 존속학대죄/ 687 [8] 아동혹사죄/ 687
[9] 유기치사상죄/ 688
제2장 자유에 대한 죄
제1절 협박의 죄 ································································································ 690
[1] 총 설/ 690 [2] 협박죄/ 691 [3] 존속협박죄/ 699
[4] 특수협박죄/ 699 [5] 상습협박죄/ 700
제2절 강요의 죄 ································································································ 701
[1] 총 설/ 701 [2] 강요죄/ 701 [3] 특수강요죄/ 707 [4] 중강요죄/ 707
[5] 인질강요죄/ 708 [6] 인질상해·치상죄/ 710 [7] 인질살해·치사죄/ 710
제3절 체포와 감금의 죄 ······················································································ 711
[1] 총 설/ 711 [2] 체포·감금죄/ 711 [3] 존속체포·감금죄/ 718
[4] 중체포·감금죄, 존속중체포·감금죄/ 718 [5] 특수체포·감금죄/ 720
[6] 상습체포·감금죄/ 720 [7] 체포·감금치사상죄/ 720
제4절 약취·유인 및 인신매매의 죄 ······································································· 722
[1] 총 설/ 722 [2] 미성년자 약취·유인죄/ 723
[3] 추행·간음·결혼·영리목적 약취·유인죄/ 729
[4] 노동력 착취·성매매와 성적 착취·장기적출목적 약취·유인죄/ 732
[5] 국외이송목적 약취·유인죄/ 732 [6] 피약취·유인자 국외이송죄/ 733
[7] 인신매매죄/ 734 [8] 추행·간음·결혼·영리목적 인신매매죄/ 735
[9] 노동력 착취·성매매와 성적 착취·장기적출목적 인신매매죄/ 735
[10] 국외이송목적 인신매매죄/ 736 [11] 피매매자 국외이송죄/ 736
[12] 피약취·유인·매매·이송자 상해·치상죄/ 736
[13] 피약취·유인·매매·이송자 살인·치사죄/ 737
[14] 피약취·유인·매매·이송자 수수·은닉죄/ 737
[15] 약취·유인·매매·이송목적 모집·운송·전달죄/ 738
제5절 강간과 추행의 죄 ····················································································· 739
[1] 총 설/ 739 [2] 강간죄/ 742 [3] 유사강간죄/ 748
[4] 강제추행죄/ 749 [5] 준강간죄·준강제추행죄/ 753
[6] 미성년자의제강간·강제추행죄/ 756
[7] 강간상해·치상죄, 강간살인·치사죄/ 758
[8] 미성년자·심신미약자 간음·추행죄/ 762
[9] 피감호자간음죄/ 764 [10] 피구금자간음죄/ 766 [11] 상습범/ 767

제3장 명예와 신용에 대한 죄
제1절 명예에 관한 죄 ························································································· 768
[1] 총 설/ 768 [2] 명예훼손죄/ 769 [3] 사자의 명예훼손죄/ 787
[4] 출판물에 의한 명예훼손죄/ 788 [5] 모욕죄/ 793
제2절 신용·업무와 경매에 관한 죄 ······································································· 798
[1] 총 설/ 798 [2] 신용훼손죄/ 798 [3] 업무방해죄/ 801
[4] 컴퓨터업무방해죄/ 818 [5] 경매·입찰방해죄/ 822

제4장 사생활의 평온에 대한 죄
제1절 비밀침해의 죄 ·························································································· 826
[1] 총 설/ 826 [2] 비밀침해죄/ 827 [3] 업무상비밀누설죄/ 830
제2절 주거침입의 죄 ·························································································· 834
[1] 총 설/ 834 [2] 주거침입죄/ 835 [3] 퇴거불응죄/ 847
[4] 특수주거침입죄/ 848 [5] 주거·신체수색죄/ 849

제5장 재산에 대한 죄
제1절 재산죄의 기본개념 ···················································································· 851
[1] 재산죄의 분류/ 851 [2] 재산죄의 객체/ 852 [3] 형법상의 점유/ 860
[4] 불법영득의사/ 870 [5] 친족상도례/ 882
제2절 절도의 죄 ································································································ 889
[1] 총 설/ 889 [2] 절도죄/ 890 [3] 야간주거침입절도죄/ 901
[4] 특수절도죄/ 903 [5] 자동차 등 불법사용죄/ 909 [6] 상습절도죄/ 912
제3절 강도의 죄 ································································································ 914
[1] 총 설/ 914 [2] 강도죄/ 915 [3] 특수강도죄/ 925
[4] 준강도죄/ 928 [5] 인질강도죄/ 936
[6] 강도상해·치상죄/ 938 [7] 강도살인·치사죄/ 942
[8] 강도강간죄/ 944 [9] 해상강도죄, 해상강도상해·치상·살인·치사·강간죄/ 948
[10] 상습강도죄/ 949 [11] 강도예비·음모죄/ 950
제4절 사기의 죄 ································································································ 951
[1] 총 설/ 951 [2] 사기죄/ 952
[3] 컴퓨터 등 사용사기죄/ 997 [4] 신용카드 관련범죄/ 1002
[5] 준사기죄/ 1013 [6] 편의시설부정이용죄/ 1014
[7] 부당이득죄/ 1016 [8] 상습사기죄/ 1018
제5절 공갈의 죄 ······························································································· 1019
[1] 총 설/ 1019 [2] 공갈죄/ 1020
[3] 특수공갈죄/ 1029 [4] 상습공갈죄/ 1029
제6절 횡령의 죄 ······························································································ 1030
[1] 총 설/ 1030 [2] 횡령죄/ 1032
[3] 업무상횡령죄/ 1076 [4] 점유이탈물횡령죄/ 1076
제7절 배임의 죄 ······························································································ 1079
[1] 총 설/ 1079 [2] 배임죄/ 1081 [3] 업무상배임죄/ 1117
[4] 배임수재죄/ 1117 [5] 배임증재죄/ 1126
제8절 장물의 죄 ······························································································· 1128
[1] 총 설/ 1128 [2] 장물죄/ 1138
[3] 상습장물죄/ 1146 [4] 업무상과실·중과실장물죄/ 1146
제9절 손괴의 죄 ······························································································· 1148
[1] 총 설/ 1148 [2] 재물손괴죄/ 1148
[3] 공익건조물파괴죄/ 1157 [4] 중손괴죄·손괴치사상죄/ 1158
[5] 특수손괴죄/ 1158 [6] 경계침범죄/ 1158
제10절 권리행사를 방해하는 죄 ···&midd