▶ 제1편 서 론 ◀

제1장 형법의 기본개념 2

제1절 형법의 의의 ··············································································································· 2
Ⅰ. 개 념/2
Ⅱ. 형식적 의미의 형법과 실질적 의미의 형법/2

제2절 형법의 지위와 성격 ··································································································· 3
Ⅰ. 형법의 법체계적 지위/3
Ⅱ. 형법의 규범적 성격/3

제3절 형법의 기능 ··············································································································· 4
Ⅰ. 규제적 기능/4
Ⅱ. 보호적 기능/4
Ⅲ. 보장적 기능/4

제2장 형법의 발전 6

제1절 형법의 역사 ·············································································································· 6

제2절 형법의 학파 ·············································································································· 6
Ⅰ. 고전학파(구파)/6
Ⅱ. 근대학파(신파)/6
Ⅲ. 형법학파의 비교/7

제3절 범죄이론 ···················································································································· 7
Ⅰ. 객관주의/7
Ⅱ. 주관주의/7
Ⅲ. 양자의 비교/7

제4절 형벌이론 ···················································································································· 8
Ⅰ. 응보형주의/8
Ⅱ. 목적형주의/9
Ⅲ. 결합설/9

제3장 죄형법정주의 10

제1절 죄형법정주의의 의의 ·································································································· 10
Ⅰ. 의 의/10
Ⅱ. 기 능/10
Ⅲ. 법적 근거/10

제2절 죄형법정주의의 내용 ··································································································· 10
Ⅰ. 성문법률주의(법률주의)/10
Ⅱ. 명확성의 원칙/15
Ⅲ. 소급효금지의 원칙/21
Ⅳ. 유추해석의 금지의 원칙/30
Ⅴ. 적정성의 원칙/55

제4장 형법의 적용범위 60

제1절 시간의 적용범위 ········································································································ 60
Ⅰ. 행위시법주의(원칙)/60
Ⅱ. 재판시법주의(예외)/62
Ⅲ. 한시법/70

제2절 장소적 적용범위········································································································· 70
Ⅰ. 개 설/70
Ⅱ. 속지주의/70
Ⅲ. 속인주의/71
Ⅳ. 기국주의/72
Ⅴ. 보호주의/73
Ⅵ. 세계주의/75
Ⅶ. 외국에서 받은 형의 집행/75

제3절 인적 적용범위 ········································································································· 76
Ⅰ. 원 칙/76
Ⅱ. 예 외/76

▶ 제2편 범죄론 ◀

제1장 범죄론의 기초 79

제1절 범죄의 의의와 종류 ·································································································· 80
Ⅰ. 범죄의 의의/80

Ⅱ. 범죄의 성립요건·처벌조건·소추조건/80
Ⅲ. 범죄의 종류/86

제2절 행위론 ······················································································································· 92
Ⅰ. 행위론의 의의/92
Ⅱ. 행위의 기능/93
Ⅲ. 행위론의 종류/93

제3절 범죄체계론 ················································································································ 94
Ⅰ. 범죄체계론의 의의/94
Ⅱ. 범죄체계론의 분류/94

제4절 행위의 주체와 객체 ·································································································· 95
Ⅰ. 행위의 주체/95
Ⅱ. 행위의 객체와 보호의 객체/103

제2장 구성요건론 104

제1절 구성요건의 일반이론 ······························································································· 104
Ⅰ. 구성요건의 의의/104
Ⅱ. 구성요건이론의 발전/104
Ⅲ. 구성요건과 위법성의 관계/104
Ⅳ. 구성요건의 유형/105
Ⅴ. 구성요건의 요소/106

제2절 결과반가치와 행위반가치 ························································································ 107
Ⅰ. 결과반가치와 행위반가치/107
Ⅱ. 결과반가치론과 행위반가치론/107
Ⅲ. 불법의 내용/107

제3절 부작위범 ·················································································································· 108
Ⅰ. 개 설/108
Ⅱ. 부작위범의 의의 및 종류/109
Ⅲ. 부작위범의 (일반적) 성립요건/112
Ⅳ. 부진정부작위범의 특유한 요건/113
Ⅴ. 부진정부작위범의 구성요건/113
Ⅵ. 관련문제/117

제4절 인과관계와 객관적 귀속 ·························································································· 119
Ⅰ. 인과관계의 의의/119
Ⅱ. 인과관계의 유형/120
Ⅲ. 인과관계에 대한 학설/120
Ⅳ. 객관적 귀속이론/126
Ⅴ. 제17조의 해석/130

제5절 구성요건적 고의 ······································································································ 131
Ⅰ. 고의의 의의/131
Ⅱ. 고의의 체계적 지위/132
Ⅲ. 고의의 내용/132
Ⅳ. 고의의 종류/133

제6절 구성요건적 착오 ······································································································ 141
Ⅰ. 개 설/141
Ⅱ. 구성요건적 착오의 유형/142
Ⅲ. 구성요건적 착오에 대한 학설과 판례/143
Ⅳ. 가감적 구성요건에 대한 착오/145
Ⅴ. 인과관계의 착오와 개괄적 고의/145

제7절 과실범 ····················································································································· 147
Ⅰ. 서 설/147
Ⅱ. 과실범의 성립요건/153
Ⅲ. 객관적 주의의무의 제한원리/157
Ⅳ. 관련문제/169

제8절 결과적 가중범 ········································································································· 170
Ⅰ. 결과적 가중범의 의의/170
Ⅱ. 결과적 가중범의 종류/171
Ⅲ. 결과적 가중범의 성립요건/172
Ⅳ. 관련문제/175

제3장 위법성론 178

제1절 위법성의 일반이론 ·································································································· 178
Ⅰ. 위법성의 의의/178
Ⅱ. 위법성의 본질/178
Ⅲ. 위법성의 평가방법/179
Ⅳ. 위법성조각사유/179

제2절 정당방위 ·················································································································· 181
Ⅰ. 정당방위의 의의/181
Ⅱ. 정당방위의 성립요건/181
Ⅲ. 정당방위의 효과/188
Ⅳ. 과잉방위와 오상방위/188

제3절 긴급피난 ·················································································································· 190
Ⅰ. 긴급피난의 의의/190
Ⅱ. 긴급피난의 성립요건/191
Ⅲ. 긴급피난의 효과/194
Ⅳ. 과잉피난와 오상피난/194
Ⅴ. 의무의 충돌/194

제4절 자구행위 ·················································································································· 195
Ⅰ. 자구행위의 의의/195
Ⅱ. 자구행위의 성립요건/196
Ⅲ. 자구행위의 효과/198
Ⅳ. 과잉자구행위와 오상자구행위/198

제5절 피해자의 승낙 ·········································································································· 199
Ⅰ. 형법상 피해자의 동의/199
Ⅱ. 양 해/200
Ⅲ. 피해자의 승낙/200
Ⅳ. 추정적 승낙/202

제6절 정당행위 ·················································································································· 203
Ⅰ. 의 의/203
Ⅱ. 법령에 의한 행위/204
Ⅲ. 업무로 인한 행위/213
Ⅳ. 사회상규에 반하지 않는 행위/215

제4장 책임론 230

제1절 책임의 일반이론 ······································································································ 230
Ⅰ. 책임의 의의/230
Ⅱ. 책임의 근거/230
Ⅲ. 책임의 본질/231

제2절 책임능력 ················································································································ 232
Ⅰ. 책임능력의 의의/232
Ⅱ. 책임무능력자/232
Ⅲ. 한정책임능력자/239
Ⅳ. 원인에 있어 자유로운 행위/240

제3절 위법성의 인식과 금지착오 ······················································································· 242
Ⅰ. 위법성의 인식/242
Ⅱ. 금지착오/244
Ⅲ. 위법성조각사유의 전제사실에 대한 착오/256

제4절 기대가능성 ················································································································ 260
Ⅰ. 기대가능성이론/260
Ⅱ. 강요된 행위/263
Ⅲ. 초법규적 책임조각사유/265

제5장 미수론 267

제1절 미수범의 일반이론 ··································································································· 267
Ⅰ. 범죄실현의 단계/267
Ⅱ. 미수범의 처벌근거/267

제2절 장애미수 ··················································································································· 268
Ⅰ. 의 의/268
Ⅱ. 장애미수의 성립요건/269
Ⅲ. 장애미수의 처벌/270
Ⅳ. 범죄유형별 실행의 착수/270
Ⅴ. 실행의 착수 관련 판례/270

제3절 중지미수 ··················································································································· 278
Ⅰ. 의 의/278
Ⅱ. 중지미수의 성립요건/279
Ⅲ. 중지미수의 처벌/280
Ⅳ. 관련문제/280

제4절 불능미수 ··················································································································· 283
Ⅰ. 의 의/283
Ⅱ. 불능미수의 성립요건/283
Ⅲ. 불능미수의 처벌/285
Ⅳ. 환각범/285

제5절 예비죄 ······················································································································ 288
Ⅰ. 개 설/288
Ⅱ. 예비죄의 법적성격/289
Ⅲ. 예비죄의 성립요건/290
Ⅳ. 관련문제/292

제6장 정범 및 공범론 294

제1절 정범 및 공범의 일반이론 ························································································· 294
Ⅰ. 개 설/294
Ⅱ. 임의적 공범과 필요적 공범/294
Ⅲ. 정범과 공범의 구별/299
Ⅳ. 공범의 종속성/301

제2절 간접정범 ·················································································································· 303
Ⅰ. 개 설/303
Ⅱ. 간접정범의 성립요건/304
Ⅲ. 간접정범의 처벌/305
Ⅳ. 관련문제/305

제3절 공동정범 ··················································································································· 310
Ⅰ. 의 의/310
Ⅱ. 공동정범의 성립요건/311
Ⅲ. 공동정범의 처벌/326
Ⅳ. 공동정범과 착오/326
Ⅴ. 동시범/327
Ⅵ. 합동범/330

제4절 교사범 ······················································································································ 332
Ⅰ. 의 의/332
Ⅱ. 교사범의 성립요건/332
Ⅲ. 교사범의 처벌/336
Ⅳ. 교사의 착오/336
Ⅴ. 관련문제/338

제5절 종 범 ························································································································ 339
Ⅰ. 의 의/339
Ⅱ. 종범의 성립요건/339
Ⅲ. 종범의 처벌/346
Ⅳ. 방조의 착오/347
Ⅴ. 관련문제/348

제6절 공범과 신분 ·············································································································· 349
Ⅰ. 개 설/349
Ⅱ. 제33조 해석론/350
Ⅲ. 소극적 신분과 공범/354

제7장 죄수론 356

제1절 죄수의 일반이론 ······································································································· 356
Ⅰ. 죄수론의 의의/356
Ⅱ. 죄수결정의 기준/356
Ⅲ. 수죄의 처벌/356

제2절 일 죄 ························································································································ 357
Ⅰ. 개 설/357
Ⅱ. 법조경합/357
Ⅲ. 포괄일죄/362

제3절 수 죄 ························································································································· 374
Ⅰ. 상상적 경합/374
Ⅱ. 실체적 경합/380

▶ 제3편 형벌론 ◀

제1절 형벌의 종류 ·············································································································· 396
Ⅰ. 형벌의 의의/396
Ⅱ. 형벌의 종류/396
Ⅲ. 사 형/396
Ⅳ. 자유형/397
Ⅴ. 명예형/397
Ⅵ. 재산형/398
Ⅶ. 형의 경중/411

제2절 형의 양정 ················································································································· 411
Ⅰ. 의 의/411
Ⅱ. 형의 가중·감경·면제/412
Ⅲ. 양 형/419
Ⅳ. 미결구금 및 판결의 공시/420
Ⅴ. 판결의 공시/421

제3절 누 범 ························································································································ 422
Ⅰ. 의 의/422
Ⅱ. 누범가중의 요건/422
Ⅲ. 누범의 효과/423
Ⅳ. 특가법상 누범 등 가중처벌/425

제4절 선고유예·집행유예·가석방 ···················································································· 428
Ⅰ. 선고유예/428
Ⅱ. 집행유예/431
Ⅲ. 가석방/438

제5절 형의 시효·소멸·기간 ····························································································· 441
Ⅰ. 형의 시효/441
Ⅱ. 형의 소멸·실효/442
Ⅲ. 복권과 사면/442
Ⅳ. 형의 기간/443

제6절 보안처분 ··················································································································· 444
Ⅰ. 의 의/444
Ⅱ. 형벌과 보안처분의 관계/444
Ⅲ. 현행법상 보안처분/444

판례색인 ····························································································································· 446