서 론
서 론
01
Ⅰ. 형법각론의 본질 ······························································································· 3
Ⅱ. 형법각론의 체계 ······························································································· 4

제 1 편 개인적 법익에 대한 죄
제 1 장 생명과 신체에 대한 죄
제 1 절 살인의 죄
02
Ⅰ. 총 설 ·········································································································· 9

1. 살인죄의 의의 ··································································································· 9
2. 구성요건의 체계 ····························································································· 12
Ⅱ. 살 인 죄········································································································· 12

1. 구성요건 ·········································································································· 12
2. 위 법 성 ········································································································· 21
3. 죄 수 ········································································································· 23
Ⅲ. 존속살해죄 ····································································································· 24
Ⅳ. 감경적 구성요건 ····························································································· 28

1. 영아살해죄 ······································································································ 28
2. 촉탁 승낙에 의한 살인죄 ·············································································· 31
3. 자살교사 방조죄 ···························································································· 34
Ⅴ. 위계 위력에 의한 살인죄 ············································································· 38
Ⅵ. 살인예비 음모죄 ··························································································· 39
제 2 절 상해와 폭행의 죄
03
Ⅰ. 총 설 ········································································································ 40

1. 상해와 폭행의 죄의 의의 ················································································ 40
2. 상해죄와 폭행죄의 관계 ················································································· 41
3. 구성요건의 체계 ····························································································· 43
Ⅱ. 상해의 죄 ······································································································· 43

1. 상 해 죄 ········································································································· 43
2. 존속상해죄 ······································································································ 51
3. 중상해죄 존속중상해죄 ················································································· 51
4. 특수상해죄 특수중상해죄 ············································································· 54
5. 상해치사죄 존속상해치사죄 ·········································································· 54
6. 동시범의 특례 ································································································· 56
Ⅲ. 폭행의 죄 ······································································································· 60

1. 폭 행 죄 ········································································································· 60
2. 존속폭행죄 ······································································································ 64
3. 특수폭행죄 ······································································································ 64
4. 폭행치사상죄 ·································································································· 68
Ⅳ. 상습상해(존속상해 중상해 존속중상해 특수상해) 상습폭행
(존속폭행 특수폭행)죄 ················································································· 70
제 3 절 과실치사상의 죄
04
Ⅰ. 총 설 ········································································································ 71

1. 과실치사상의 죄의 의의 ················································································· 71
2. 과실범의 구조 ································································································· 71
Ⅱ. 과실치상죄 과실치사죄 ················································································ 72

1. 과실치상죄 ······································································································ 72
2. 과실치사죄 ······································································································ 73
Ⅲ. 업무상과실 중과실치사상죄 ········································································· 75

1. 업무상과실치사상죄 ······················································································· 75
2. 중과실치사상죄 ······························································································· 83
3. 차의 교통으로 인한 업무상과실치사상죄 ······················································· 83
제 4 절 낙태의 죄
05
Ⅰ. 총 설 ········································································································ 88

1. 낙태죄의 의의 ································································································· 88
2. 현행법상 낙태죄의 처벌 ················································································· 90
3. 낙태의 자유화 문제 ························································································ 93
Ⅱ. 자기낙태죄 동의낙태죄 ················································································ 97

1. 자기낙태죄 ······································································································ 97
2. 동의낙태죄 ······································································································ 99
Ⅲ. 낙태죄의 가중적 구성요건 ··········································································· 100

1. 업무상 낙태죄 ······························································································· 100
2. 부동의낙태죄 ································································································ 101
3. 낙태치사상죄 ································································································ 102
제 5 절 유기와 학대의 죄
06
Ⅰ. 총 설 ······································································································ 103

1. 유기죄의 의의 ······························································································· 103
2. 보호법익 ········································································································ 104
Ⅱ. 유 기 죄······································································································· 105

1. 단순유기죄 ···································································································· 105
2. 존속유기죄 ···································································································· 110
3. 중유기죄 존속중유기죄 ··············································································· 110
4. 영아유기죄 ···································································································· 111
5. 유기치사상죄 존속유기치사상죄 ································································ 111
Ⅲ. 학대죄와 아동혹사죄 ··················································································· 112

1. 학대죄 존속학대죄 ······················································································ 112
2. 아동혹사죄 ···································································································· 113
제 2 장 자유에 대한 죄
제 1 절 협박의 죄
07
Ⅰ. 총 설 ······································································································ 115

1. 의의와 본질 ··································································································· 115
2. 구성요건의 체계 ··························································································· 116
Ⅱ. 협 박 죄······································································································· 117
Ⅲ. 가중적 구성요건 ··························································································· 121

1. 존속협박죄 ···································································································· 121
2. 특수협박죄 ···································································································· 122
3. 상습협박죄 ···································································································· 122
제 2 절 체포와 감금의 죄
08
Ⅰ. 총 설 ······································································································ 122

1. 체포 감금죄의 의의 ····················································································· 122
2. 구성요건의 체계 ··························································································· 123
Ⅱ. 체포 감금죄 ································································································ 124
Ⅲ. 가중적 구성요건 ··························································································· 128

1. 존속체포 감금죄 ·························································································· 128
2. 중체포 감금죄, 존속중체포 감금죄 ··························································· 129
3. 특수체포 감금죄 ·························································································· 129
4. 상습체포 감금죄 ·························································································· 130
5. 체포 감금치사상죄, 존속체포 감금치사상죄 ············································ 130
제 3 절 약취 유인 및 인신매매의 죄
09
Ⅰ. 총 설 ······································································································ 131

1. 약취 유인 및 인신매매의 죄의 의의 ··························································· 131
2. 보호법익 ········································································································ 133
3. 구성요건의 체계 ··························································································· 134
Ⅱ. 미성년자 약취 유인죄 ················································································ 135

1. 객관적 구성요건 ··························································································· 135
2. 주관적 구성요건 ··························································································· 138
3. 위 법 성 ······································································································· 139
4. 형의 감경 ······································································································ 139
Ⅲ. 추행 간음 결혼 영리 국외이송 등 목적 약취 유인죄 ·························· 140

1. 추행 간음 결혼 영리목적 약취 유인죄 ·················································· 140
2. 노동력 착취, 성매매와 성적 착취, 장기적출목적 약취 유인죄 ·················· 142
3. 국외이송목적 약취 유인죄 ·········································································· 143
Ⅳ. 인신매매죄 ··································································································· 144

1. 단순 인신매매죄 ··························································································· 144
2. 추행 간음 결혼 또는 영리목적 인신매매죄, 노동력 착취 성매매와
성적 착취 장기적출목적 인신매매죄, 국외이송목적 인신매매죄,
피인신매매자 국외이송죄·············································································· 146
Ⅴ. 약취 유인 매매 이송 등 상해 치상죄, 동 살인 치사죄 ······················· 146
Ⅵ. 약취 유인 매매 이송된 사람의 수수 은닉 등 죄 ··································· 147
Ⅶ. 미성년자 약취 유인 등 예비 음모죄························································· 148
제 4 절 강요의 죄
010
Ⅰ. 총 설 ······································································································ 149

1. 의의와 본질 ··································································································· 149
2. 입 법 론 ······································································································· 150
Ⅱ. 강 요 죄······································································································· 151

1. 단순강요죄 ···································································································· 151
2. 특수강요죄 ···································································································· 155
3. 중강요죄 ········································································································ 155
Ⅲ. 인질범죄 ······································································································· 156

1. 인질강요죄 ···································································································· 156
2. 인질상해 치상죄 ·························································································· 158
3. 인질살해 치사죄 ·························································································· 158
제 5 절 강간과 추행의 죄
011
Ⅰ. 총 설 ······································································································ 159

1. 강간과 추행의 죄의 의의 ·············································································· 159
2. 구성요건의 체계 ··························································································· 160
Ⅱ. 강간죄와 강제추행죄 ··················································································· 162

1. 강 간 죄 ······································································································· 162
2. 강제추행죄 ···································································································· 167
Ⅲ. 준강간죄와 준강제추행죄 ············································································ 171

1. 준강간죄 준강제추행죄 ··············································································· 171
2. 미성년자 의제강간 유사강간 강제추행죄 ················································· 173
Ⅳ. 강간 등 상해 치상죄, 강간 등 살인 치사죄 ············································· 175

1. 강간 등 상해 치상죄 ··················································································· 175
2. 강간 등 살인 치사죄 ··················································································· 178
Ⅴ. 독립된 구성요건 ··························································································· 179

1. 미성년자 심신미약자 간음 추행죄 ···························································· 179
2. 업무상위력 등에 의한 간음죄 ······································································· 180
Ⅵ. 상습강간 강제추행죄, 상습준강간 준강제추행등죄 ································· 182
Ⅶ. 강간 등 예비 음모죄 ··················································································· 182
제 3 장 명예와 신용에 대한 죄
제 1 절 명예에 관한 죄
012
Ⅰ. 총 설 ······································································································ 183

1. 명예에 관한 죄의 의의 ·················································································· 183
2. 보호법익 ········································································································ 184
Ⅱ. 명예훼손의 죄 ······························································································ 189

1. 명예훼손죄 ···································································································· 189
2. 사자의 명예훼손죄 ························································································ 201
3. 출판물 등에 의한 명예훼손죄 ······································································· 201
Ⅲ. 모 욕 죄······································································································· 203
제 2 절 신용 업무와 경매에 관한 죄
013
Ⅰ. 총 설 ······································································································ 205

1. 신용 업무와 경매에 관한 죄의 의의 ··························································· 205
2. 신용 업무와 경매에 관한 죄의 본질 ··························································· 206
Ⅱ. 신용훼손죄 ··································································································· 208
Ⅲ. 업무방해죄 ··································································································· 210
Ⅳ. 경매 입찰방해죄 ························································································· 221
제 4 장 사생활의 평온에 대한 죄
제 1 절 비밀침해의 죄
014
Ⅰ. 총 설 ······································································································ 224

1. 비밀침해의 죄의 의의 ··················································································· 224
2. 입 법 론 ······································································································· 226
Ⅱ. 비밀침해죄 ··································································································· 227
Ⅲ. 업무상 비밀누설죄 ······················································································· 231
제 2 절 주거침입의 죄
015
Ⅰ. 총 설 ······································································································ 235

1. 주거침입죄의 의의 ························································································ 235
2. 보호법익 ········································································································ 236
Ⅱ. 주거침입죄 ··································································································· 238

1. 단순주거침입죄 ····························································································· 238
2. 퇴거불응죄 ···································································································· 247
Ⅲ. 특수주거침입죄 ···························································································· 248
Ⅳ. 주거 신체수색죄 ························································································· 249
제 5 장 재산에 대한 죄
제 1 절 절도의 죄
016
Ⅰ. 총 설 ······································································································ 251

1. 의의와 보호법익 ··························································································· 251
2. 구성요건의 체계 ··························································································· 252
Ⅱ. 절 도 죄······································································································· 253

1. 객관적 구성요건 ··························································································· 253
2. 주관적 구성요건 ··························································································· 273
3. 죄 수 ······································································································· 282
Ⅲ. 절도죄의 가중적 구성요건 ··········································································· 283

1. 야간주거침입절도죄 ····················································································· 283
2. 특수절도죄 ···································································································· 285
3. 상습절도죄 ···································································································· 292
Ⅳ. 자동차등 불법사용죄 ··················································································· 293
Ⅴ. 친족상도례 ··································································································· 295
제 2 절 강도의 죄
017
Ⅰ. 총 설 ······································································································ 299

1. 강도죄의 의의 ······························································································· 299
2. 구성요건의 체계 ··························································································· 300
Ⅱ. 강 도 죄······································································································· 300

1. 객관적 구성요건 ··························································································· 300
2. 주관적 구성요건 ··························································································· 310
3. 공범과 죄수 ··································································································· 310
Ⅲ. 준강도의 죄 ·································································································· 311

1. 준강도죄 ········································································································ 311
2. 인질강도죄 ···································································································· 317
Ⅳ. 가중적 구성요건 ··························································································· 318

1. 특수강도죄 ···································································································· 318
2. 강도상해 치상죄 ·························································································· 319
3. 강도살인 치사죄 ·························································································· 321
4. 강도강간죄 ···································································································· 323
5. 해상강도죄 ···································································································· 325
6. 상습강도죄 ···································································································· 326
Ⅴ. 강도예비 음모죄 ························································································· 326
제 3 절 사기의 죄
018
Ⅰ. 총 설 ······································································································ 327

1. 사기죄의 의의 ······························································································· 327
2. 사기죄의 본질 ······························································································· 328
3. 구성요건의 체계 ··························································································· 330
Ⅱ. 사 기 죄······································································································· 331

1. 객관적 구성요건 ··························································································· 331
2. 주관적 구성요건 ··························································································· 352
3. 관련문제 ········································································································ 354
Ⅲ. 수정적 구성요건 ··························································································· 358

1. 컴퓨터등 사용사기죄 ···················································································· 358
2. 준사기죄 ········································································································ 363
3. 편의시설 부정이용죄 ···················································································· 364
4. 부당이득죄 ···································································································· 366
Ⅳ. 상습사기죄 ··································································································· 369
《신용카드범죄의 유형과 그 죄책》 ····································································· 369

1. 신용카드의 개념과 신용카드범죄의 유형 ····················································· 369
2. 신용카드 자체에 대한 범죄 ·········································································· 370
3. 타인 신용카드의 부정사용 ············································································ 373
4. 자기 신용카드의 부정사용 ············································································ 378
제 4 절 공갈의 죄
019
Ⅰ. 총 설 ······································································································ 379

1. 공갈죄의 의의와 보호법익 ············································································ 379
2. 구성요건의 체계 ··························································································· 381
Ⅱ. 공 갈 죄······································································································· 381

1. 객관적 구성요건 ··························································································· 381
2. 주관적 구성요건 ··························································································· 386
3. 위 법 성 ······································································································· 387
4. 관련문제 ········································································································ 388
Ⅲ. 특수공갈죄 ··································································································· 390
Ⅳ. 상습공갈죄 ··································································································· 390
제 5 절 횡령의 죄
020
Ⅰ. 총 설 ······································································································ 390

1. 횡령죄의 의의와 본질 ··················································································· 390
2. 구성요건의 체계 ··························································································· 392
Ⅱ. 횡 령 죄······································································································· 393

1. 객관적 구성요건 ··························································································· 394
2. 주관적 구성요건 ··························································································· 412
3. 공 범 ······································································································· 415
4. 죄수 및 다른 범죄와의 관계 ········································································· 416
Ⅲ. 업무상 횡령죄 ······························································································ 417
Ⅳ. 점유이탈물횡령죄 ························································································ 419
제 6 절 배임의 죄
021
Ⅰ. 총 설 ······································································································ 421

1. 배임죄의 의의 ······························································································· 421
2. 배임죄의 본질 ······························································································· 423
Ⅱ. 배 임 죄······································································································· 425

1. 객관적 구성요건 ··························································································· 425
2. 주관적 구성요건 ··························································································· 436
3. 이중저당과 이중매매의 형사책임 ································································· 436
4. 다른 범죄와의 관계 ······················································································ 442
Ⅲ. 업무상 배임죄 ······························································································ 443
Ⅳ. 배임수증죄 ··································································································· 444
제 7 절 장물의 죄
022
Ⅰ. 총 설 ······································································································ 449

1. 장물죄의 의의 ······························································································· 449
2. 장물죄의 본질 ······························································································· 450
Ⅱ. 장물취득 양도 운반 보관 알선죄 ·························································· 453

1. 객관적 구성요건 ··························································································· 453
2. 주관적 구성요건 ··························································································· 463
3. 다른 범죄와의 관계 ······················································································ 463
4. 친족간의 범행 ······························································································· 465
Ⅲ. 상습장물취득 양도 운반 보관 알선죄 ··················································· 466
Ⅳ. 업무상과실 중과실 장물취득 운반 보관 알선죄 ··································· 466
제 8 절 손괴의 죄
023
Ⅰ. 총 설 ······································································································ 467

1. 손괴죄의 의의 ······························································································· 467
2. 보호법익 ········································································································ 468
Ⅱ. 재물(문서)손괴죄 ························································································· 470

1. 의 의 ······································································································· 470
2. 객관적 구성요건 ··························································································· 470
3. 주관적 구성요건 ··························································································· 475
Ⅲ. 공익건조물파괴죄 ························································································ 476
Ⅳ. 가중적 구성요건 ··························································································· 477

1. 중손괴죄 ········································································································ 477
2. 특수손괴죄 ···································································································· 478
Ⅴ. 경계침범죄 ··································································································· 478

1. 의 의 ······································································································· 478
2. 객관적 구성요건 ··························································································· 478
3. 주관적 구성요건 ··························································································· 480
제 9 절 권리행사를 방해하는 죄
024
Ⅰ. 총 설 ······································································································ 480

1. 권리행사방해죄의 의의 ················································································· 480
2. 보호법익 ········································································································ 482
Ⅱ. 권리행사방해죄 ···························································································· 482

1. 객관적 구성요건 ··························································································· 482
2. 주관적 구성요건 ··························································································· 486
3. 친족간의 범죄의 특례 ··················································································· 486
Ⅲ. 점유강취죄 ··································································································· 486

1. 점유강취죄 준점유강취죄 ··········································································· 486
2. 중권리행사방해죄 ························································································· 487
Ⅳ. 강제집행면탈죄 ···························································································· 487

1. 의 의 ······································································································· 488
2. 객관적 구성요건 ··························································································· 488
3. 주관적 구성요건 ··························································································· 492

제 2 편 사회적 법익에 대한 죄
제 1 장 공공의 안전과 평온에 대한 죄
제 1 절 공안을 해하는 죄
025
Ⅰ. 총 설 ······································································································ 495

1. 의의와 본질 ··································································································· 495
2. 입 법 론 ······································································································· 496
Ⅱ. 범죄단체 조직죄 ··························································································· 497
Ⅲ. 소요죄 다중불해산죄 ·················································································· 500

1. 소 요 죄 ······································································································· 500
2. 다중불해산죄 ································································································ 504
Ⅳ. 전시 공수계약 불이행죄 ·············································································· 506
Ⅴ. 공무원 자격사칭죄 ······················································································· 507
제 2 절 폭발물에 관한 죄
026
Ⅰ. 총 설 ······································································································ 508

1. 의의와 입법례 ······························································································· 508
2. 보호법익 ········································································································ 508
Ⅱ. 폭발물사용죄································································································ 509

1. 폭발물사용죄 ································································································ 509
2. 전시폭발물사용죄 ························································································· 511
Ⅲ. 폭발물사용 예비 음모등죄 ········································································· 511

1. 폭발물사용 예비 음모 선동죄 ····································