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제12판 머리말
지송(志松) 이재상 교수님께서 심혈을 기울이셨던 형법각론을 저자들이 이어받아 개정판을 발간해 온 지도 벌써 5년이 훌쩍 넘었다. 이재상 교수님이 열정을 갖고 끊임없이 생명력을 불어넣으셨던 이 책이 학계와 실무계에서 여전히 사랑을 받을 수 있도록, 저자들은 그 동안 형법의 주요 개정과 이론적 성과 및 중요한 판결을 제때에 반영하고자 하였다. 개정작업을 거듭할수록 이 교수님의 높은 식견과 깊은 이론을 느낄 수 있기에 교수님의 부재에 대한 아쉬움이 더욱 깊어질 뿐이다. 제11판 이후 형법과 성폭력처벌법이 개정되었고, 대...
더보기
| ISBN | 9791130340098(1130340090) |
|---|---|
| 쪽수 | 896쪽 |
| 크기 | 181 * 253 * 45 mm /1544g 판형알림 |
책소개
이 책이 속한 분야
이번 제12판은 제11판 이후의 형법 및 관련 법률의 개정과 중요 판례를 추가 보완하였는데, 그 주요한 내용은 다음과 같다.
첫째 사이버 성범죄 등으로 인한 피해를 미연에 방지하기 위하여 미성년자 의제강간 연령기준을 13세에서 16세로 상향하고(피해 미성년자가 13세 이상 16세 미만인 경우 19세 이상의 자만 처벌), 강간예비ㆍ음모죄를 신설한 2020. 5. 19. 형법 개정과 대표적인 법률용어와 어순구조를 다듬은 2020. 12. 8. 형법 개정을 반영하였다. 또한 성폭력처벌법에 대한 2020. 3. 24.(딥페이크 등의 처벌을 위한 허위영상물 반포죄(제14조의2) 신설)과 2020. 5. 19.(카메라 등 이용 촬영죄 등의 법정형 상향 및 불법 성적 촬영물의 소지 등에 대한 처벌규정 신설)의 개정 내용을 소개하였다.
둘째 그 사이 선고된 판례를 추가하고 오래 전 판례를 삭제하였다. 위계에 의한 간음죄에서 피해자가 오인ㆍ착각ㆍ부지에 빠지게 되는 대상은 간음행위 자체는 물론 간음행위에 이르게 된 동기나 간음행위와 결부된 금전적ㆍ비금전적 대가와 같은 요소일 수도 있다는 대법원 2020. 8. 27. 2015도9436 전원합의체판결, 부동산실명법을 위반한 양자간 명의신탁에서 명의수탁자가 신탁 부동산을 임의 처분한 경우 명의신탁자에 대한 관계에서 횡령죄 성립을 부정한 대법원 2021. 2. 18. 2016도18761 전원합의체판결, ‘동산ㆍ채권 등의 담보에 관한 법률’에 따른 동산담보로 제공한 기계의 처분(대법원 2020. 8. 27. 2019도14770 전원합의체판결), ‘자동차 등 특정동산 저당법’ 또는 ‘공장 및 광업재단 저당법’에 따른 저당권 설정 동산을 처분하거나 권리이전에 등기ㆍ등록을 요하는 자동차 등의 매도인이 매수인에게 소유권이전등록을 하지 않고 타에 처분(대법원 2020. 10. 22. 2020도6258 전원합의체판결)한 경우 배임죄를 부정한 판결, 시스템 설치ㆍ운영 주체로부터 개개의 단위정보 입력 권한을 부여받은 사람이 권한을 남용하여 허위 정보를 입력한 경우 사전자기록위작에 포함된다는 대법원 2020. 8. 27. 2019도11294 전원합의체판결, 직권남용권리행사방해죄에 관한 대법원 2020. 1. 30. 2018도2236 전원합의체판결이 대표적이다. 본서에는 2021년 7월까지 선고된 중요 판결을 수록하였다.
저자들은 형법각론 제12판도 이재상 교수님이 이룩하신 형법학의 성과를 보전하면서 학생들의 형법 학습에 길잡이가 되고, 실무가들에게 좋은 참고자료가 될 뿐만 아니라 우리 형법학 발전에 기여할 수 있는 책이 되도록 노력하였다. 앞으로도 이러한 목표를 달성하기 위하여 지속적으로 보완해 나갈 계획이다.
첫째 사이버 성범죄 등으로 인한 피해를 미연에 방지하기 위하여 미성년자 의제강간 연령기준을 13세에서 16세로 상향하고(피해 미성년자가 13세 이상 16세 미만인 경우 19세 이상의 자만 처벌), 강간예비ㆍ음모죄를 신설한 2020. 5. 19. 형법 개정과 대표적인 법률용어와 어순구조를 다듬은 2020. 12. 8. 형법 개정을 반영하였다. 또한 성폭력처벌법에 대한 2020. 3. 24.(딥페이크 등의 처벌을 위한 허위영상물 반포죄(제14조의2) 신설)과 2020. 5. 19.(카메라 등 이용 촬영죄 등의 법정형 상향 및 불법 성적 촬영물의 소지 등에 대한 처벌규정 신설)의 개정 내용을 소개하였다.
둘째 그 사이 선고된 판례를 추가하고 오래 전 판례를 삭제하였다. 위계에 의한 간음죄에서 피해자가 오인ㆍ착각ㆍ부지에 빠지게 되는 대상은 간음행위 자체는 물론 간음행위에 이르게 된 동기나 간음행위와 결부된 금전적ㆍ비금전적 대가와 같은 요소일 수도 있다는 대법원 2020. 8. 27. 2015도9436 전원합의체판결, 부동산실명법을 위반한 양자간 명의신탁에서 명의수탁자가 신탁 부동산을 임의 처분한 경우 명의신탁자에 대한 관계에서 횡령죄 성립을 부정한 대법원 2021. 2. 18. 2016도18761 전원합의체판결, ‘동산ㆍ채권 등의 담보에 관한 법률’에 따른 동산담보로 제공한 기계의 처분(대법원 2020. 8. 27. 2019도14770 전원합의체판결), ‘자동차 등 특정동산 저당법’ 또는 ‘공장 및 광업재단 저당법’에 따른 저당권 설정 동산을 처분하거나 권리이전에 등기ㆍ등록을 요하는 자동차 등의 매도인이 매수인에게 소유권이전등록을 하지 않고 타에 처분(대법원 2020. 10. 22. 2020도6258 전원합의체판결)한 경우 배임죄를 부정한 판결, 시스템 설치ㆍ운영 주체로부터 개개의 단위정보 입력 권한을 부여받은 사람이 권한을 남용하여 허위 정보를 입력한 경우 사전자기록위작에 포함된다는 대법원 2020. 8. 27. 2019도11294 전원합의체판결, 직권남용권리행사방해죄에 관한 대법원 2020. 1. 30. 2018도2236 전원합의체판결이 대표적이다. 본서에는 2021년 7월까지 선고된 중요 판결을 수록하였다.
저자들은 형법각론 제12판도 이재상 교수님이 이룩하신 형법학의 성과를 보전하면서 학생들의 형법 학습에 길잡이가 되고, 실무가들에게 좋은 참고자료가 될 뿐만 아니라 우리 형법학 발전에 기여할 수 있는 책이 되도록 노력하였다. 앞으로도 이러한 목표를 달성하기 위하여 지속적으로 보완해 나갈 계획이다.
목차
서론
서 론
§ 1
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
§ 2
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.촉탁ㆍ승낙에 의한 살인죄 ·············································································· 31
3.자살교사ㆍ방조죄 ···························································································· 34
Ⅴ. 위계ㆍ위력에 의한 살인죄 ············································································· 38
Ⅵ. 살인예비ㆍ음모죄 ··························································································· 39
제 2 절 상해와 폭행의 죄
§ 3
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.중상해죄ㆍ존속중상해죄 ················································································· 51
4.특수상해죄ㆍ특수중상해죄 ············································································· 54
5.상해치사죄ㆍ존속상해치사죄 ·········································································· 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(존속상해ㆍ중상해ㆍ존속중상해ㆍ특수상해)ㆍ상습폭행
(존속폭행ㆍ특수폭행)죄 ················································································· 70
제 3 절 과실치사상의 죄
§ 4
Ⅰ. 총 설 ········································································································ 71
1.과실치사상의 죄의 의의 ················································································· 71
2.과실범의 구조 ································································································· 71
Ⅱ. 과실치상죄ㆍ과실치사죄 ················································································ 72
1.과실치상죄 ······································································································ 72
2.과실치사죄 ······································································································ 73
Ⅲ. 업무상과실ㆍ중과실치사상죄 ········································································· 75
1.업무상과실치사상죄 ······················································································· 75
2.중과실치사상죄 ······························································································· 83
3. 차의 교통으로 인한 업무상과실치사상죄 ······················································· 83
제 4 절 낙태의 죄
§ 5
Ⅰ. 총 설 ········································································································ 88
1.낙태죄의 의의 ································································································· 88
2.현행법상 낙태죄의 처벌 ················································································· 90
3.낙태의 자유화 문제 ························································································ 93
Ⅱ. 자기낙태죄ㆍ동의낙태죄 ················································································ 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
§ 6
Ⅰ. 총 설 ······································································································ 103
1.유기죄의 의의 ······························································································· 103
2.보호법익 ········································································································ 104
Ⅱ. 유 기 죄······································································································· 105
1.단순유기죄 ···································································································· 105
2.존속유기죄 ···································································································· 110
3.중유기죄ㆍ존속중유기죄 ··············································································· 110
4.영아유기죄 ···································································································· 111
5.유기치사상죄ㆍ존속유기치사상죄 ································································ 111
Ⅲ. 학대죄와 아동혹사죄 ··················································································· 112
1.학대죄ㆍ존속학대죄 ······················································································ 112
2.아동혹사죄 ···································································································· 113
제 2 장 자유에 대한 죄
제 1 절 협박의 죄
§ 7
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
§ 8
Ⅰ. 총 설 ······································································································ 122
1.체포ㆍ감금죄의 의의 ····················································································· 122
2.구성요건의 체계 ··························································································· 123
Ⅱ. 체포ㆍ감금죄 ································································································ 124
Ⅲ. 가중적 구성요건 ··························································································· 128
1.존속체포ㆍ감금죄 ·························································································· 128
2.중체포ㆍ감금죄, 존속중체포ㆍ감금죄 ··························································· 129
3.특수체포ㆍ감금죄 ·························································································· 129
4.상습체포ㆍ감금죄 ·························································································· 130
5.체포ㆍ감금치사상죄, 존속체포ㆍ감금치사상죄 ············································ 130
제 3 절 약취ㆍ유인 및 인신매매의 죄
§ 9
Ⅰ. 총 설 ······································································································ 131
1.약취ㆍ유인 및 인신매매의 죄의 의의 ··························································· 131
2.보호법익 ········································································································ 133
3.구성요건의 체계 ··························································································· 134
Ⅱ. 미성년자 약취ㆍ유인죄 ················································································ 135
1.객관적 구성요건 ··························································································· 135
2.주관적 구성요건 ··························································································· 138
3.위 법 성 ······································································································· 139
4.형의 감경 ······································································································ 139
Ⅲ. 추행ㆍ간음ㆍ결혼ㆍ영리ㆍ국외이송 등 목적 약취ㆍ유인죄 ·························· 140
1.추행ㆍ간음ㆍ결혼ㆍ영리목적 약취ㆍ유인죄 ·················································· 140
2.노동력 착취, 성매매와 성적 착취, 장기적출목적 약취ㆍ유인죄 ·················· 142
3.국외이송목적 약취ㆍ유인죄 ·········································································· 143
Ⅳ. 인신매매죄 ··································································································· 144
1.단순 인신매매죄 ··························································································· 144
2. 추행ㆍ간음ㆍ결혼 또는 영리목적 인신매매죄, 노동력 착취ㆍ성매매와
성적 착취ㆍ장기적출목적 인신매매죄, 국외이송목적 인신매매죄,
피인신매매자 국외이송죄·············································································· 146
Ⅴ. 약취ㆍ유인ㆍ매매ㆍ이송 등 상해ㆍ치상죄, 동 살인ㆍ치사죄 ······················· 146
Ⅵ. 약취ㆍ유인ㆍ매매ㆍ이송된 사람의 수수ㆍ은닉 등 죄 ··································· 147
Ⅶ. 미성년자 약취ㆍ유인 등 예비ㆍ음모죄························································· 148
제 4 절 강요의 죄
§ 10
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.인질상해ㆍ치상죄 ·························································································· 158
3.인질살해ㆍ치사죄 ·························································································· 158
제 5 절 강간과 추행의 죄
§ 11
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.준강간죄ㆍ준강제추행죄 ··············································································· 171
2.미성년자 의제강간ㆍ유사강간ㆍ강제추행죄 ················································· 173
Ⅳ. 강간 등 상해ㆍ치상죄, 강간 등 살인ㆍ치사죄 ············································· 175
1.강간 등 상해ㆍ치상죄 ··················································································· 175
2.강간 등 살인ㆍ치사죄 ··················································································· 178
Ⅴ. 독립된 구성요건 ··························································································· 179
1.미성년자ㆍ심신미약자 간음ㆍ추행죄 ···························································· 179
2.업무상위력 등에 의한 간음죄 ······································································· 180
Ⅵ. 상습강간ㆍ강제추행죄, 상습준강간ㆍ준강제추행등죄 ································· 182
Ⅶ. 강간 등 예비ㆍ음모죄 ··················································································· 182
제 3 장 명예와 신용에 대한 죄
제 1 절 명예에 관한 죄
§ 12
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 신용ㆍ업무와 경매에 관한 죄
§ 13
Ⅰ. 총 설 ······································································································ 205
1.신용ㆍ업무와 경매에 관한 죄의 의의 ··························································· 205
2.신용ㆍ업무와 경매에 관한 죄의 본질 ··························································· 206
Ⅱ. 신용훼손죄 ··································································································· 208
Ⅲ. 업무방해죄 ··································································································· 210
Ⅳ. 경매ㆍ입찰방해죄 ························································································· 221
제 4 장 사생활의 평온에 대한 죄
제 1 절 비밀침해의 죄
§ 14
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
§ 15
Ⅰ. 총 설 ······································································································ 235
1.주거침입죄의 의의 ························································································ 235
2.보호법익 ········································································································ 236
Ⅱ. 주거침입죄 ··································································································· 238
1.단순주거침입죄 ····························································································· 238
2.퇴거불응죄 ···································································································· 247
Ⅲ. 특수주거침입죄 ···························································································· 248
Ⅳ. 주거ㆍ신체수색죄 ························································································· 249
제 5 장 재산에 대한 죄
제 1 절 절도의 죄
§ 16
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
§ 17
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.강도상해ㆍ치상죄 ·························································································· 319
3.강도살인ㆍ치사죄 ·························································································· 321
4.강도강간죄 ···································································································· 323
5.해상강도죄 ···································································································· 325
6.상습강도죄 ···································································································· 326
Ⅴ. 강도예비ㆍ음모죄 ························································································· 326
제 3 절 사기의 죄
§ 18
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
§ 19
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
§ 20
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
§ 21
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
§ 22
Ⅰ. 총 설 ······································································································ 449
1.장물죄의 의의 ······························································································· 449
2.장물죄의 본질 ······························································································· 450
Ⅱ. 장물취득ㆍ양도ㆍ운반ㆍ보관ㆍ알선죄 ·························································· 453
1.객관적 구성요건 ··························································································· 453
2.주관적 구성요건 ··························································································· 463
3.다른 범죄와의 관계 ······················································································ 463
4.친족간의 범행 ······························································································· 465
Ⅲ. 상습장물취득ㆍ양도ㆍ운반ㆍ보관ㆍ알선죄 ··················································· 466
Ⅳ. 업무상과실ㆍ중과실 장물취득ㆍ운반ㆍ보관ㆍ알선죄 ··································· 466
제 8 절 손괴의 죄
§ 23
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
§ 24
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.점유강취죄ㆍ준점유강취죄 ··········································································· 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
§ 25
Ⅰ. 총 설 ······································································································ 495
1.의의와 본질 ··································································································· 495
2.입 법 론 ······································································································· 496
Ⅱ. 범죄단체 조직죄 ··························································································· 497
Ⅲ. 소요죄ㆍ다중불해산죄 ·················································································· 500
1.소 요 죄 ······································································································· 500
2.다중불해산죄 ································································································ 504
Ⅳ. 전시 공수계약 불이행죄 ·············································································· 506
Ⅴ. 공무원 자격사칭죄 ······················································································· 507
제 2 절 폭발물에 관한 죄
§ 26
Ⅰ. 총 설 ······································································································ 508
1.의의와 입법례 ······························································································· 508
2.보호법익 ········································································································ 508
Ⅱ. 폭발물사용죄································································································ 509
1.폭발물사용죄 ································································································ 509
2.전시폭발물사용죄 ························································································· 511
Ⅲ. 폭발물사용 예비ㆍ음모등죄 ········································································· 511
1.폭발물사용 예비ㆍ음모ㆍ선동죄 ··································································· 511
2.전시폭발물제조ㆍ수입ㆍ수출ㆍ수수ㆍ소지죄 ················································ 512
제 3 절 방화와 실화의 죄
§ 27
Ⅰ. 총 설 ······································································································ 513
1.의의와 보호법익 ··························································································· 513
2.방화죄와 공공위험죄의 본질 ········································································ 516
3.방화죄의 기수시기 ························································································ 519
Ⅱ. 방 화 죄······································································································· 521
1.현주건조물등 방화죄 ···················································································· 521
2.공용건조물등 방화죄 ···················································································· 526
3.일반건조물등 방화죄 ···················································································· 527
4.일반물건방화죄 ····························································································· 528
5.연 소 죄 ······································································································· 528
6.방화예비ㆍ음모죄 ·························································································· 529
Ⅲ. 준방화죄 ······································································································· 529
1.진화방해죄 ···································································································· 529
2.폭발성물건파열죄 ························································································· 531
3.가스ㆍ전기등 방류죄 ····················································································· 532
4.가스ㆍ전기등 공급방해죄 ············································································· 533
Ⅳ. 실 화 죄······································································································· 534
1.단순실화죄 ···································································································· 534
2.업무상실화ㆍ중실화죄 ·················································································· 535
3.과실 폭발성물건 파열죄, 과실 가스ㆍ전기등 방류죄, 과실 가스ㆍ전기등
공급방해죄, 업무상과실ㆍ중과실 폭발성물건 파열등죄 ······························ 535
제 4 절 일수와 수리에 관한 죄
§ 28
Ⅰ. 총 설 ······································································································ 536
Ⅱ. 일 수 죄······································································································· 537
1.현주건조물등 일수죄 ···················································································· 537
2.공용건조물등 일수죄 ···················································································· 538
3.일반건조물등 일수죄 ···················································································· 538
4.방수방해죄 ···································································································· 539
5.과실일수죄 ···································································································· 539
6.일수예비ㆍ음모죄 ·························································································· 540
Ⅲ. 수리방해죄 ··································································································· 540
제 5 절 교통방해의 죄
§ 29
Ⅰ. 총 설 ······································································································ 541
1.의의와 본질 ··································································································· 541
2.형법규정의 검토 ··························································································· 542
Ⅱ. 교통방해죄 ··································································································· 543
1.일반교통방해죄 ····························································································· 543
2.기차ㆍ선박등 교통방해죄 ············································································· 546
3.기차등 전복죄 ······························································································· 548
4.교통방해치사상죄 ························································································· 549
Ⅲ. 과실에 의한 교통방해죄 ·············································································· 550
1.과실교통방해죄 ····························································································· 550
2.업무상과실ㆍ중과실교통방해죄 ···································································· 550
제 2 장 공공의 신용에 대한 죄
제 1 절 통화에 관한 죄
§ 30
Ⅰ. 총 설 ······································································································ 552
1.통화에 관한 죄의 의의 ·················································································· 552
2.보호법익 ········································································································ 553
Ⅱ. 통화위조죄와 위조통화행사죄 ····································································· 554
1.내국통화위조ㆍ변조죄 ·················································································· 554
2.내국유통 외국통화위조ㆍ변조죄 ··································································· 557
3.외국통용 외국통화위조ㆍ변조죄 ··································································· 558
4.위조ㆍ변조통화행사등죄 ··············································································· 558
Ⅲ. 통화위조죄의 수정적 구성요건 ···································································· 560
1.위조ㆍ변조통화취득죄 ·················································································· 560
2.위조통화취득후 지정행사죄 ········································································· 561
3.통화유사물제조등죄 ····················································································· 562
4.통화위조예비ㆍ음모죄 ·················································································· 563
제 2 절 유가증권ㆍ우표와 인지에 관한 죄
§ 31
Ⅰ. 총 설 ······································································································ 564
1.의의와 본질 ··································································································· 564
2.유가증권의 의의 ··························································································· 565
3.구성요건의 체계 ··························································································· 567
Ⅱ. 유가증권위조죄 ···························································································· 568
1.유가증권위조ㆍ변조죄 ·················································································· 568
2.기재의 위조ㆍ변조죄 ····················································································· 571
3.자격모용에 의한 유가증권작성죄 ································································· 571
Ⅲ. 허위유가증권작성죄 ····················································································· 572
Ⅳ. 위조등 유가증권행사죄 ················································································ 573
Ⅴ. 인지ㆍ우표에 관한 죄 ··················································································· 574
1.인지ㆍ우표등 위조ㆍ변조죄 ·········································································· 574
2.위조ㆍ변조인지ㆍ우표등 행사죄 ··································································· 575
3.위조ㆍ변조인지ㆍ우표등 취득죄 ··································································· 575
4.인지ㆍ우표등 소인말소죄 ············································································· 576
5.인지ㆍ우표 유사물제조등죄 ·········································································· 576
Ⅵ. 유가증권위조등 예비ㆍ음모죄 ····································································· 577
제 3 절 문서에 관한 죄
§ 32
Ⅰ. 총 설 ······································································································ 577
1.의의와 본질 ··································································································· 577
2.문서의 개념 ··································································································· 580
3.문서의 종류 ··································································································· 586
Ⅱ. 문서위조ㆍ변조죄 ························································································· 587
1.사문서위조ㆍ변조죄 ······················································································ 587
2. 자격모용에 의한 사문서작성죄 ···································································· 595
3.공문서위조ㆍ변조죄 ······················································································ 596
4.자격모용에 의한 공문서작성죄 ···································································· 598
Ⅲ. 허위문서작성죄 ···························································································· 598
1.허위진단서등 작성죄 ···················································································· 598
2.허위공문서작성죄 ························································································· 600
3.공정증서원본등의 부실기재죄 ······································································ 607
Ⅳ. 위조등 문서행사죄 ······················································································· 612
1.위조ㆍ변조ㆍ작성 사문서행사죄 ··································································· 612
2.위조ㆍ변조ㆍ작성 공문서행사죄 ··································································· 614
Ⅴ. 문서부정행사죄 ···························································································· 615
1.사문서등 부정행사죄 ···················································································· 615
2.공문서등 부정행사죄 ···················································································· 616
Ⅵ. 전자기록위작ㆍ변작등죄 ·············································································· 618
1.의 의 ······································································································· 618
2.사전자기록위작ㆍ변작ㆍ행사죄 ···································································· 618
3.공전자기록 위작ㆍ변작ㆍ행사죄 ··································································· 620
제 4 절 인장에 관한 죄
§ 33
Ⅰ. 총 설 ······································································································ 622
1.의의와 본질 ··································································································· 622
2.인장ㆍ서명ㆍ기명ㆍ기호 ················································································ 623
Ⅱ. 사인등 위조ㆍ행사죄 ···················································································· 625
1.사인등 위조ㆍ부정사용죄 ············································································· 625
2.위조등 사인행사죄 ························································································ 626
Ⅲ. 공인위조ㆍ행사죄 ························································································· 627
1.공인등 위조ㆍ부정사용죄 ············································································· 627
2.위조등 공인행사죄 ························································································ 627
제 3 장 공중의 건강에 대한 죄
제 1 절 먹는 물에 관한 죄
§ 34
Ⅰ. 총 설 ······································································································ 629
1.의의와 본질 ··································································································· 629
2.입 법 론 ······································································································· 629
Ⅱ. 먹는 물 사용방해죄 ······················································································ 631
Ⅲ. 가중적 구성요건 ··························································································· 632
1.먹는 물 유해물혼입죄 ··················································································· 632
2.수돗물 사용방해죄 ························································································ 633
3.수돗물 유해물혼입죄 ···················································································· 634
4.먹는 물 혼독치사상죄 ··················································································· 634
5.수도불통죄 ···································································································· 635
제 2 절 아편에 관한 죄
§ 35
Ⅰ. 총 설 ······································································································ 636
1.의의와 본질 ··································································································· 636
2.입 법 론 ······································································································· 637
Ⅱ. 아편흡식ㆍ동 장소제공죄 ············································································· 638
1.아편흡식등죄 ································································································ 638
2.아편흡식등 장소제공죄 ················································································· 639
Ⅲ. 가중적 구성요건 ··························································································· 639
1.아편등 제조ㆍ수입ㆍ판매ㆍ판매목적 소지죄 ················································ 639
2.아편흡식기 제조ㆍ수입ㆍ판매ㆍ판매목적 소지죄 ········································· 640
3.세관공무원의 아편등 수입ㆍ수입허용죄 ······················································ 641
4.상습아편흡식, 아편등 제조ㆍ수입ㆍ판매등죄 ··············································· 642
Ⅳ. 아편등 소지죄 ······························································································ 643
제 4 장 사회의 도덕에 대한 죄
제 1 절 성풍속에 관한 죄
§ 36
Ⅰ. 총 설 ······································································································ 644
1.성풍속에 관한 죄의 의의 ·············································································· 644
2.성풍속에 관한 죄의 보호법익 ······································································· 645
Ⅱ. 음행매개죄 ··································································································· 645
Ⅲ. 음란물죄와 공연음란죄 ················································································ 647
1.음화등 반포ㆍ판매ㆍ임대ㆍ공연전시죄 ························································· 647
2.음화등 제조ㆍ소지ㆍ수입ㆍ수출죄 ································································ 652
3.공연음란죄 ···································································································· 652
제 2 절 도박과 복표에 관한 죄
§ 37
Ⅰ. 총 설 ······································································································ 654
1.의의와 보호법익 ··························································································· 654
2.구성요건 ········································································································ 655
Ⅱ. 도 박 죄······································································································· 656
1.단순도박죄 ···································································································· 656
2.상습도박죄 ···································································································· 659
3.도박장소등 개설죄 ························································································ 661
Ⅲ. 복표발매ㆍ중개ㆍ취득죄··············································································· 662
제 3 절 신앙에 관한 죄
§ 38
Ⅰ. 총 설 ······································································································ 664
1.종교범죄와 형법 ··························································································· 664
2.보호법익 ········································································································ 665
Ⅱ. 장례식ㆍ제사ㆍ예배ㆍ설교방해죄 ································································· 666
Ⅲ. 시체에 관한 죄 ····························································································· 667
1.시체ㆍ유골ㆍ유발오욕죄 ··············································································· 667
2.분묘발굴죄 ···································································································· 668
3.시체등 손괴ㆍ유기ㆍ은닉ㆍ영득죄 ································································ 670
4.변사체검시방해죄 ························································································· 672
제 3 편?국가적 법익에 대한 죄
제 1 장 국가의 존립과 권위에 대한 죄
제 1 절 내란의 죄
§ 39
Ⅰ. 총 설 ······································································································ 677
1.의의와 보호법익 ··························································································· 677
2.내란죄의 본질 ······························································································· 679
Ⅱ. 내 란 죄······································································································· 680
Ⅲ. 내란목적 살인죄 ··························································································· 684
Ⅳ. 내란예비ㆍ음모ㆍ선동ㆍ선전죄 ···································································· 686
제 2 절 외환의 죄
§ 40
Ⅰ. 총 설 ······································································································ 687
1.의의와 본질 ··································································································· 687
2.입 법 론 ······································································································· 688
Ⅱ. 외환유치죄와 여적죄 ··················································································· 689
1.외환유치죄 ···································································································· 689
2.여 적 죄 ······································································································· 690
Ⅲ. 이 적 죄······································································································· 691
1.모병이적죄 ···································································································· 691
2.시설제공이적죄 ····························································································· 691
3.시설파괴이적죄 ····························································································· 692
4.물건제공이적죄 ····························································································· 692
5.일반이적죄 ···································································································· 692
6.이적예비ㆍ음모, 선동ㆍ선전죄 ······································································ 693
Ⅳ. 간 첩 죄······································································································· 693
Ⅴ. 전시 군수계약 불이행죄 ·············································································· 697
제 3 절 국기에 관한 죄
§ 41
Ⅰ. 총 설 ······································································································ 698
Ⅱ. 국기ㆍ국장모독죄 ························································································· 698
Ⅲ. 국기ㆍ국장비방죄 ························································································· 700
제 4 절 국교에 관한 죄
§ 42
Ⅰ. 총 설 ······································································································ 700
1.의의와 보호법익 ··························································································· 700
2.구성요건의 체계 ··························································································· 701
Ⅱ. 외국원수ㆍ사절 및 국기에 대한 죄 ······························································ 702
1.외국원수에 대한 폭행등죄 ············································································ 702
2.외국사절에 대한 폭행등죄 ············································································ 703
3.외국국기ㆍ국장모독죄 ·················································································· 703
Ⅲ. 외국에 대한 사전ㆍ중립명령위반죄 ····························································· 704
1.외국에 대한 사전죄 ······················································································ 704
2.중립명령위반죄 ····························································································· 705
Ⅳ. 외교상 기밀누설죄 ······················································································· 706
제 2 장 국가의 기능에 대한 죄
제 1 절 공무원의 직무에 관한 죄
§ 43
Ⅰ. 총 설 ······································································································ 707
1.직무범죄의 의의 ··························································································· 707
2.직무범죄의 본질과 공무원의 의무 ······························································· 708
Ⅱ. 직무유기죄 ··································································································· 710
1.직무유기죄 ···································································································· 710
2.피의사실공표죄 ····························································································· 714
3.공무상 비밀누설죄 ························································································ 715
Ⅲ. 직권남용죄 ··································································································· 717
1.일반공무원 직권남용죄(권리행사방해죄) ···················································· 717
2.불법체포ㆍ감금죄 ·························································································· 720
3.폭행ㆍ가혹행위죄 ·························································································· 721
4.선거방해죄 ···································································································· 723
Ⅳ. 뇌 물 죄······································································································· 724
1.일반이론 ········································································································ 724
2. 단순수뢰죄 ···································································································· 731
3.사전수뢰죄 ···································································································· 737
4.제3자뇌물수수ㆍ요구ㆍ약속죄 ······································································ 738
5.수뢰후부정처사죄 ························································································· 739
6.부정처사후수뢰죄 ························································································· 740
7.알선수뢰죄 ···································································································· 741
8.증뢰죄ㆍ증뢰물전달죄 ·················································································· 743
제 2 절 공무방해에 관한 죄
§ 44
Ⅰ. 총 설 ······································································································ 745
1.공무방해죄의 의의 ························································································ 745
2.구성요건의 체계 ··························································································· 746
Ⅱ. 공무집행방해죄 ···························································································· 747
1.객관적 구성요건 ··························································································· 747
2.주관적 구성요건 ··························································································· 756
3.죄수 및 다른 범죄와의 관계 ········································································· 757
Ⅲ. 수정적 구성요건 ··························································································· 758
1.직무ㆍ사직강요죄 ·························································································· 758
2.위계에 의한 공무집행방해죄 ········································································ 760
Ⅳ. 특수한 공무에 대한 공무방해죄 ·································································· 763
1.법정ㆍ국회회의장 모욕죄 ············································································· 763
2.인권옹호직무방해죄 ····················································································· 764
3.공무상비밀표시무효죄 ·················································································· 766
4.공용서류등 무효죄 ························································································ 770
5.공용물파괴죄 ································································································ 772
6.공무상보관물무효죄 ····················································································· 772
7.특수공무방해죄ㆍ특수공무방해치사상죄 ····················································· 773
제 3 절 도주와 범인은닉의 죄
§ 45
Ⅰ. 총 설 ······································································································ 774
1.의의와 본질 ··································································································· 774
2.입 법 론 ······································································································· 775
Ⅱ. 도 주 죄······································································································· 776
1.단순도주죄 ···································································································· 776
2.집합명령위반죄 ····························································································· 778
3.특수도주죄 ···································································································· 778
Ⅲ. 도주원조죄 ··································································································· 779
1.단순 도주원조죄 ··························································································· 779
2.간수자 도주원조죄 ························································································ 781
Ⅳ. 범인은닉죄 ··································································································· 781
1.구성요건 ········································································································ 781
2.친족간의 특례 ······························································································· 787
제 4 절 위증과 증거인멸의 죄
§ 46
Ⅰ. 총 설 ······································································································ 789
1.위증죄의 의의와 본질 ··················································································· 789
2.증거인멸죄의 의의 ························································································ 791
Ⅱ. 위증의 죄 ····································································································· 792
1.위 증 죄 ······································································································· 792
2.모해위증죄 ···································································································· 803
3.허위감정ㆍ통역ㆍ번역죄 ··············································································· 803
Ⅲ. 증거인멸의 죄 ······························································································ 804
1.증거인멸죄 ···································································································· 804
2.증인은닉ㆍ도피죄 ·························································································· 808
3.모해증거인멸죄 ····························································································· 808
제 5 절 무고의 죄
§ 47
Ⅰ. 총 설 ······································································································ 809
Ⅱ. 무 고 죄······································································································· 811
1.구성요건 ········································································································ 811
2.위법성과 죄수 및 처벌 ·················································································· 817
색인(조문ㆍ판례ㆍ사항) ····················································································· 819
서 론
§ 1
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
§ 2
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.촉탁ㆍ승낙에 의한 살인죄 ·············································································· 31
3.자살교사ㆍ방조죄 ···························································································· 34
Ⅴ. 위계ㆍ위력에 의한 살인죄 ············································································· 38
Ⅵ. 살인예비ㆍ음모죄 ··························································································· 39
제 2 절 상해와 폭행의 죄
§ 3
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.중상해죄ㆍ존속중상해죄 ················································································· 51
4.특수상해죄ㆍ특수중상해죄 ············································································· 54
5.상해치사죄ㆍ존속상해치사죄 ·········································································· 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(존속상해ㆍ중상해ㆍ존속중상해ㆍ특수상해)ㆍ상습폭행
(존속폭행ㆍ특수폭행)죄 ················································································· 70
제 3 절 과실치사상의 죄
§ 4
Ⅰ. 총 설 ········································································································ 71
1.과실치사상의 죄의 의의 ················································································· 71
2.과실범의 구조 ································································································· 71
Ⅱ. 과실치상죄ㆍ과실치사죄 ················································································ 72
1.과실치상죄 ······································································································ 72
2.과실치사죄 ······································································································ 73
Ⅲ. 업무상과실ㆍ중과실치사상죄 ········································································· 75
1.업무상과실치사상죄 ······················································································· 75
2.중과실치사상죄 ······························································································· 83
3. 차의 교통으로 인한 업무상과실치사상죄 ······················································· 83
제 4 절 낙태의 죄
§ 5
Ⅰ. 총 설 ········································································································ 88
1.낙태죄의 의의 ································································································· 88
2.현행법상 낙태죄의 처벌 ················································································· 90
3.낙태의 자유화 문제 ························································································ 93
Ⅱ. 자기낙태죄ㆍ동의낙태죄 ················································································ 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
§ 6
Ⅰ. 총 설 ······································································································ 103
1.유기죄의 의의 ······························································································· 103
2.보호법익 ········································································································ 104
Ⅱ. 유 기 죄······································································································· 105
1.단순유기죄 ···································································································· 105
2.존속유기죄 ···································································································· 110
3.중유기죄ㆍ존속중유기죄 ··············································································· 110
4.영아유기죄 ···································································································· 111
5.유기치사상죄ㆍ존속유기치사상죄 ································································ 111
Ⅲ. 학대죄와 아동혹사죄 ··················································································· 112
1.학대죄ㆍ존속학대죄 ······················································································ 112
2.아동혹사죄 ···································································································· 113
제 2 장 자유에 대한 죄
제 1 절 협박의 죄
§ 7
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
§ 8
Ⅰ. 총 설 ······································································································ 122
1.체포ㆍ감금죄의 의의 ····················································································· 122
2.구성요건의 체계 ··························································································· 123
Ⅱ. 체포ㆍ감금죄 ································································································ 124
Ⅲ. 가중적 구성요건 ··························································································· 128
1.존속체포ㆍ감금죄 ·························································································· 128
2.중체포ㆍ감금죄, 존속중체포ㆍ감금죄 ··························································· 129
3.특수체포ㆍ감금죄 ·························································································· 129
4.상습체포ㆍ감금죄 ·························································································· 130
5.체포ㆍ감금치사상죄, 존속체포ㆍ감금치사상죄 ············································ 130
제 3 절 약취ㆍ유인 및 인신매매의 죄
§ 9
Ⅰ. 총 설 ······································································································ 131
1.약취ㆍ유인 및 인신매매의 죄의 의의 ··························································· 131
2.보호법익 ········································································································ 133
3.구성요건의 체계 ··························································································· 134
Ⅱ. 미성년자 약취ㆍ유인죄 ················································································ 135
1.객관적 구성요건 ··························································································· 135
2.주관적 구성요건 ··························································································· 138
3.위 법 성 ······································································································· 139
4.형의 감경 ······································································································ 139
Ⅲ. 추행ㆍ간음ㆍ결혼ㆍ영리ㆍ국외이송 등 목적 약취ㆍ유인죄 ·························· 140
1.추행ㆍ간음ㆍ결혼ㆍ영리목적 약취ㆍ유인죄 ·················································· 140
2.노동력 착취, 성매매와 성적 착취, 장기적출목적 약취ㆍ유인죄 ·················· 142
3.국외이송목적 약취ㆍ유인죄 ·········································································· 143
Ⅳ. 인신매매죄 ··································································································· 144
1.단순 인신매매죄 ··························································································· 144
2. 추행ㆍ간음ㆍ결혼 또는 영리목적 인신매매죄, 노동력 착취ㆍ성매매와
성적 착취ㆍ장기적출목적 인신매매죄, 국외이송목적 인신매매죄,
피인신매매자 국외이송죄·············································································· 146
Ⅴ. 약취ㆍ유인ㆍ매매ㆍ이송 등 상해ㆍ치상죄, 동 살인ㆍ치사죄 ······················· 146
Ⅵ. 약취ㆍ유인ㆍ매매ㆍ이송된 사람의 수수ㆍ은닉 등 죄 ··································· 147
Ⅶ. 미성년자 약취ㆍ유인 등 예비ㆍ음모죄························································· 148
제 4 절 강요의 죄
§ 10
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.인질상해ㆍ치상죄 ·························································································· 158
3.인질살해ㆍ치사죄 ·························································································· 158
제 5 절 강간과 추행의 죄
§ 11
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.준강간죄ㆍ준강제추행죄 ··············································································· 171
2.미성년자 의제강간ㆍ유사강간ㆍ강제추행죄 ················································· 173
Ⅳ. 강간 등 상해ㆍ치상죄, 강간 등 살인ㆍ치사죄 ············································· 175
1.강간 등 상해ㆍ치상죄 ··················································································· 175
2.강간 등 살인ㆍ치사죄 ··················································································· 178
Ⅴ. 독립된 구성요건 ··························································································· 179
1.미성년자ㆍ심신미약자 간음ㆍ추행죄 ···························································· 179
2.업무상위력 등에 의한 간음죄 ······································································· 180
Ⅵ. 상습강간ㆍ강제추행죄, 상습준강간ㆍ준강제추행등죄 ································· 182
Ⅶ. 강간 등 예비ㆍ음모죄 ··················································································· 182
제 3 장 명예와 신용에 대한 죄
제 1 절 명예에 관한 죄
§ 12
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 신용ㆍ업무와 경매에 관한 죄
§ 13
Ⅰ. 총 설 ······································································································ 205
1.신용ㆍ업무와 경매에 관한 죄의 의의 ··························································· 205
2.신용ㆍ업무와 경매에 관한 죄의 본질 ··························································· 206
Ⅱ. 신용훼손죄 ··································································································· 208
Ⅲ. 업무방해죄 ··································································································· 210
Ⅳ. 경매ㆍ입찰방해죄 ························································································· 221
제 4 장 사생활의 평온에 대한 죄
제 1 절 비밀침해의 죄
§ 14
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
§ 15
Ⅰ. 총 설 ······································································································ 235
1.주거침입죄의 의의 ························································································ 235
2.보호법익 ········································································································ 236
Ⅱ. 주거침입죄 ··································································································· 238
1.단순주거침입죄 ····························································································· 238
2.퇴거불응죄 ···································································································· 247
Ⅲ. 특수주거침입죄 ···························································································· 248
Ⅳ. 주거ㆍ신체수색죄 ························································································· 249
제 5 장 재산에 대한 죄
제 1 절 절도의 죄
§ 16
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
§ 17
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.강도상해ㆍ치상죄 ·························································································· 319
3.강도살인ㆍ치사죄 ·························································································· 321
4.강도강간죄 ···································································································· 323
5.해상강도죄 ···································································································· 325
6.상습강도죄 ···································································································· 326
Ⅴ. 강도예비ㆍ음모죄 ························································································· 326
제 3 절 사기의 죄
§ 18
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
§ 19
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
§ 20
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
§ 21
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
§ 22
Ⅰ. 총 설 ······································································································ 449
1.장물죄의 의의 ······························································································· 449
2.장물죄의 본질 ······························································································· 450
Ⅱ. 장물취득ㆍ양도ㆍ운반ㆍ보관ㆍ알선죄 ·························································· 453
1.객관적 구성요건 ··························································································· 453
2.주관적 구성요건 ··························································································· 463
3.다른 범죄와의 관계 ······················································································ 463
4.친족간의 범행 ······························································································· 465
Ⅲ. 상습장물취득ㆍ양도ㆍ운반ㆍ보관ㆍ알선죄 ··················································· 466
Ⅳ. 업무상과실ㆍ중과실 장물취득ㆍ운반ㆍ보관ㆍ알선죄 ··································· 466
제 8 절 손괴의 죄
§ 23
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
§ 24
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.점유강취죄ㆍ준점유강취죄 ··········································································· 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
§ 25
Ⅰ. 총 설 ······································································································ 495
1.의의와 본질 ··································································································· 495
2.입 법 론 ······································································································· 496
Ⅱ. 범죄단체 조직죄 ··························································································· 497
Ⅲ. 소요죄ㆍ다중불해산죄 ·················································································· 500
1.소 요 죄 ······································································································· 500
2.다중불해산죄 ································································································ 504
Ⅳ. 전시 공수계약 불이행죄 ·············································································· 506
Ⅴ. 공무원 자격사칭죄 ······················································································· 507
제 2 절 폭발물에 관한 죄
§ 26
Ⅰ. 총 설 ······································································································ 508
1.의의와 입법례 ······························································································· 508
2.보호법익 ········································································································ 508
Ⅱ. 폭발물사용죄································································································ 509
1.폭발물사용죄 ································································································ 509
2.전시폭발물사용죄 ························································································· 511
Ⅲ. 폭발물사용 예비ㆍ음모등죄 ········································································· 511
1.폭발물사용 예비ㆍ음모ㆍ선동죄 ··································································· 511
2.전시폭발물제조ㆍ수입ㆍ수출ㆍ수수ㆍ소지죄 ················································ 512
제 3 절 방화와 실화의 죄
§ 27
Ⅰ. 총 설 ······································································································ 513
1.의의와 보호법익 ··························································································· 513
2.방화죄와 공공위험죄의 본질 ········································································ 516
3.방화죄의 기수시기 ························································································ 519
Ⅱ. 방 화 죄······································································································· 521
1.현주건조물등 방화죄 ···················································································· 521
2.공용건조물등 방화죄 ···················································································· 526
3.일반건조물등 방화죄 ···················································································· 527
4.일반물건방화죄 ····························································································· 528
5.연 소 죄 ······································································································· 528
6.방화예비ㆍ음모죄 ·························································································· 529
Ⅲ. 준방화죄 ······································································································· 529
1.진화방해죄 ···································································································· 529
2.폭발성물건파열죄 ························································································· 531
3.가스ㆍ전기등 방류죄 ····················································································· 532
4.가스ㆍ전기등 공급방해죄 ············································································· 533
Ⅳ. 실 화 죄······································································································· 534
1.단순실화죄 ···································································································· 534
2.업무상실화ㆍ중실화죄 ·················································································· 535
3.과실 폭발성물건 파열죄, 과실 가스ㆍ전기등 방류죄, 과실 가스ㆍ전기등
공급방해죄, 업무상과실ㆍ중과실 폭발성물건 파열등죄 ······························ 535
제 4 절 일수와 수리에 관한 죄
§ 28
Ⅰ. 총 설 ······································································································ 536
Ⅱ. 일 수 죄······································································································· 537
1.현주건조물등 일수죄 ···················································································· 537
2.공용건조물등 일수죄 ···················································································· 538
3.일반건조물등 일수죄 ···················································································· 538
4.방수방해죄 ···································································································· 539
5.과실일수죄 ···································································································· 539
6.일수예비ㆍ음모죄 ·························································································· 540
Ⅲ. 수리방해죄 ··································································································· 540
제 5 절 교통방해의 죄
§ 29
Ⅰ. 총 설 ······································································································ 541
1.의의와 본질 ··································································································· 541
2.형법규정의 검토 ··························································································· 542
Ⅱ. 교통방해죄 ··································································································· 543
1.일반교통방해죄 ····························································································· 543
2.기차ㆍ선박등 교통방해죄 ············································································· 546
3.기차등 전복죄 ······························································································· 548
4.교통방해치사상죄 ························································································· 549
Ⅲ. 과실에 의한 교통방해죄 ·············································································· 550
1.과실교통방해죄 ····························································································· 550
2.업무상과실ㆍ중과실교통방해죄 ···································································· 550
제 2 장 공공의 신용에 대한 죄
제 1 절 통화에 관한 죄
§ 30
Ⅰ. 총 설 ······································································································ 552
1.통화에 관한 죄의 의의 ·················································································· 552
2.보호법익 ········································································································ 553
Ⅱ. 통화위조죄와 위조통화행사죄 ····································································· 554
1.내국통화위조ㆍ변조죄 ·················································································· 554
2.내국유통 외국통화위조ㆍ변조죄 ··································································· 557
3.외국통용 외국통화위조ㆍ변조죄 ··································································· 558
4.위조ㆍ변조통화행사등죄 ··············································································· 558
Ⅲ. 통화위조죄의 수정적 구성요건 ···································································· 560
1.위조ㆍ변조통화취득죄 ·················································································· 560
2.위조통화취득후 지정행사죄 ········································································· 561
3.통화유사물제조등죄 ····················································································· 562
4.통화위조예비ㆍ음모죄 ·················································································· 563
제 2 절 유가증권ㆍ우표와 인지에 관한 죄
§ 31
Ⅰ. 총 설 ······································································································ 564
1.의의와 본질 ··································································································· 564
2.유가증권의 의의 ··························································································· 565
3.구성요건의 체계 ··························································································· 567
Ⅱ. 유가증권위조죄 ···························································································· 568
1.유가증권위조ㆍ변조죄 ·················································································· 568
2.기재의 위조ㆍ변조죄 ····················································································· 571
3.자격모용에 의한 유가증권작성죄 ································································· 571
Ⅲ. 허위유가증권작성죄 ····················································································· 572
Ⅳ. 위조등 유가증권행사죄 ················································································ 573
Ⅴ. 인지ㆍ우표에 관한 죄 ··················································································· 574
1.인지ㆍ우표등 위조ㆍ변조죄 ·········································································· 574
2.위조ㆍ변조인지ㆍ우표등 행사죄 ··································································· 575
3.위조ㆍ변조인지ㆍ우표등 취득죄 ··································································· 575
4.인지ㆍ우표등 소인말소죄 ············································································· 576
5.인지ㆍ우표 유사물제조등죄 ·········································································· 576
Ⅵ. 유가증권위조등 예비ㆍ음모죄 ····································································· 577
제 3 절 문서에 관한 죄
§ 32
Ⅰ. 총 설 ······································································································ 577
1.의의와 본질 ··································································································· 577
2.문서의 개념 ··································································································· 580
3.문서의 종류 ··································································································· 586
Ⅱ. 문서위조ㆍ변조죄 ························································································· 587
1.사문서위조ㆍ변조죄 ······················································································ 587
2. 자격모용에 의한 사문서작성죄 ···································································· 595
3.공문서위조ㆍ변조죄 ······················································································ 596
4.자격모용에 의한 공문서작성죄 ···································································· 598
Ⅲ. 허위문서작성죄 ···························································································· 598
1.허위진단서등 작성죄 ···················································································· 598
2.허위공문서작성죄 ························································································· 600
3.공정증서원본등의 부실기재죄 ······································································ 607
Ⅳ. 위조등 문서행사죄 ······················································································· 612
1.위조ㆍ변조ㆍ작성 사문서행사죄 ··································································· 612
2.위조ㆍ변조ㆍ작성 공문서행사죄 ··································································· 614
Ⅴ. 문서부정행사죄 ···························································································· 615
1.사문서등 부정행사죄 ···················································································· 615
2.공문서등 부정행사죄 ···················································································· 616
Ⅵ. 전자기록위작ㆍ변작등죄 ·············································································· 618
1.의 의 ······································································································· 618
2.사전자기록위작ㆍ변작ㆍ행사죄 ···································································· 618
3.공전자기록 위작ㆍ변작ㆍ행사죄 ··································································· 620
제 4 절 인장에 관한 죄
§ 33
Ⅰ. 총 설 ······································································································ 622
1.의의와 본질 ··································································································· 622
2.인장ㆍ서명ㆍ기명ㆍ기호 ················································································ 623
Ⅱ. 사인등 위조ㆍ행사죄 ···················································································· 625
1.사인등 위조ㆍ부정사용죄 ············································································· 625
2.위조등 사인행사죄 ························································································ 626
Ⅲ. 공인위조ㆍ행사죄 ························································································· 627
1.공인등 위조ㆍ부정사용죄 ············································································· 627
2.위조등 공인행사죄 ························································································ 627
제 3 장 공중의 건강에 대한 죄
제 1 절 먹는 물에 관한 죄
§ 34
Ⅰ. 총 설 ······································································································ 629
1.의의와 본질 ··································································································· 629
2.입 법 론 ······································································································· 629
Ⅱ. 먹는 물 사용방해죄 ······················································································ 631
Ⅲ. 가중적 구성요건 ··························································································· 632
1.먹는 물 유해물혼입죄 ··················································································· 632
2.수돗물 사용방해죄 ························································································ 633
3.수돗물 유해물혼입죄 ···················································································· 634
4.먹는 물 혼독치사상죄 ··················································································· 634
5.수도불통죄 ···································································································· 635
제 2 절 아편에 관한 죄
§ 35
Ⅰ. 총 설 ······································································································ 636
1.의의와 본질 ··································································································· 636
2.입 법 론 ······································································································· 637
Ⅱ. 아편흡식ㆍ동 장소제공죄 ············································································· 638
1.아편흡식등죄 ································································································ 638
2.아편흡식등 장소제공죄 ················································································· 639
Ⅲ. 가중적 구성요건 ··························································································· 639
1.아편등 제조ㆍ수입ㆍ판매ㆍ판매목적 소지죄 ················································ 639
2.아편흡식기 제조ㆍ수입ㆍ판매ㆍ판매목적 소지죄 ········································· 640
3.세관공무원의 아편등 수입ㆍ수입허용죄 ······················································ 641
4.상습아편흡식, 아편등 제조ㆍ수입ㆍ판매등죄 ··············································· 642
Ⅳ. 아편등 소지죄 ······························································································ 643
제 4 장 사회의 도덕에 대한 죄
제 1 절 성풍속에 관한 죄
§ 36
Ⅰ. 총 설 ······································································································ 644
1.성풍속에 관한 죄의 의의 ·············································································· 644
2.성풍속에 관한 죄의 보호법익 ······································································· 645
Ⅱ. 음행매개죄 ··································································································· 645
Ⅲ. 음란물죄와 공연음란죄 ················································································ 647
1.음화등 반포ㆍ판매ㆍ임대ㆍ공연전시죄 ························································· 647
2.음화등 제조ㆍ소지ㆍ수입ㆍ수출죄 ································································ 652
3.공연음란죄 ···································································································· 652
제 2 절 도박과 복표에 관한 죄
§ 37
Ⅰ. 총 설 ······································································································ 654
1.의의와 보호법익 ··························································································· 654
2.구성요건 ········································································································ 655
Ⅱ. 도 박 죄······································································································· 656
1.단순도박죄 ···································································································· 656
2.상습도박죄 ···································································································· 659
3.도박장소등 개설죄 ························································································ 661
Ⅲ. 복표발매ㆍ중개ㆍ취득죄··············································································· 662
제 3 절 신앙에 관한 죄
§ 38
Ⅰ. 총 설 ······································································································ 664
1.종교범죄와 형법 ··························································································· 664
2.보호법익 ········································································································ 665
Ⅱ. 장례식ㆍ제사ㆍ예배ㆍ설교방해죄 ································································· 666
Ⅲ. 시체에 관한 죄 ····························································································· 667
1.시체ㆍ유골ㆍ유발오욕죄 ··············································································· 667
2.분묘발굴죄 ···································································································· 668
3.시체등 손괴ㆍ유기ㆍ은닉ㆍ영득죄 ································································ 670
4.변사체검시방해죄 ························································································· 672
제 3 편?국가적 법익에 대한 죄
제 1 장 국가의 존립과 권위에 대한 죄
제 1 절 내란의 죄
§ 39
Ⅰ. 총 설 ······································································································ 677
1.의의와 보호법익 ··························································································· 677
2.내란죄의 본질 ······························································································· 679
Ⅱ. 내 란 죄······································································································· 680
Ⅲ. 내란목적 살인죄 ··························································································· 684
Ⅳ. 내란예비ㆍ음모ㆍ선동ㆍ선전죄 ···································································· 686
제 2 절 외환의 죄
§ 40
Ⅰ. 총 설 ······································································································ 687
1.의의와 본질 ··································································································· 687
2.입 법 론 ······································································································· 688
Ⅱ. 외환유치죄와 여적죄 ··················································································· 689
1.외환유치죄 ···································································································· 689
2.여 적 죄 ······································································································· 690
Ⅲ. 이 적 죄······································································································· 691
1.모병이적죄 ···································································································· 691
2.시설제공이적죄 ····························································································· 691
3.시설파괴이적죄 ····························································································· 692
4.물건제공이적죄 ····························································································· 692
5.일반이적죄 ···································································································· 692
6.이적예비ㆍ음모, 선동ㆍ선전죄 ······································································ 693
Ⅳ. 간 첩 죄······································································································· 693
Ⅴ. 전시 군수계약 불이행죄 ·············································································· 697
제 3 절 국기에 관한 죄
§ 41
Ⅰ. 총 설 ······································································································ 698
Ⅱ. 국기ㆍ국장모독죄 ························································································· 698
Ⅲ. 국기ㆍ국장비방죄 ························································································· 700
제 4 절 국교에 관한 죄
§ 42
Ⅰ. 총 설 ······································································································ 700
1.의의와 보호법익 ··························································································· 700
2.구성요건의 체계 ··························································································· 701
Ⅱ. 외국원수ㆍ사절 및 국기에 대한 죄 ······························································ 702
1.외국원수에 대한 폭행등죄 ············································································ 702
2.외국사절에 대한 폭행등죄 ············································································ 703
3.외국국기ㆍ국장모독죄 ·················································································· 703
Ⅲ. 외국에 대한 사전ㆍ중립명령위반죄 ····························································· 704
1.외국에 대한 사전죄 ······················································································ 704
2.중립명령위반죄 ····························································································· 705
Ⅳ. 외교상 기밀누설죄 ······················································································· 706
제 2 장 국가의 기능에 대한 죄
제 1 절 공무원의 직무에 관한 죄
§ 43
Ⅰ. 총 설 ······································································································ 707
1.직무범죄의 의의 ··························································································· 707
2.직무범죄의 본질과 공무원의 의무 ······························································· 708
Ⅱ. 직무유기죄 ··································································································· 710
1.직무유기죄 ···································································································· 710
2.피의사실공표죄 ····························································································· 714
3.공무상 비밀누설죄 ························································································ 715
Ⅲ. 직권남용죄 ··································································································· 717
1.일반공무원 직권남용죄(권리행사방해죄) ···················································· 717
2.불법체포ㆍ감금죄 ·························································································· 720
3.폭행ㆍ가혹행위죄 ·························································································· 721
4.선거방해죄 ···································································································· 723
Ⅳ. 뇌 물 죄······································································································· 724
1.일반이론 ········································································································ 724
2. 단순수뢰죄 ···································································································· 731
3.사전수뢰죄 ···································································································· 737
4.제3자뇌물수수ㆍ요구ㆍ약속죄 ······································································ 738
5.수뢰후부정처사죄 ························································································· 739
6.부정처사후수뢰죄 ························································································· 740
7.알선수뢰죄 ···································································································· 741
8.증뢰죄ㆍ증뢰물전달죄 ·················································································· 743
제 2 절 공무방해에 관한 죄
§ 44
Ⅰ. 총 설 ······································································································ 745
1.공무방해죄의 의의 ························································································ 745
2.구성요건의 체계 ··························································································· 746
Ⅱ. 공무집행방해죄 ···························································································· 747
1.객관적 구성요건 ··························································································· 747
2.주관적 구성요건 ··························································································· 756
3.죄수 및 다른 범죄와의 관계 ········································································· 757
Ⅲ. 수정적 구성요건 ··························································································· 758
1.직무ㆍ사직강요죄 ·························································································· 758
2.위계에 의한 공무집행방해죄 ········································································ 760
Ⅳ. 특수한 공무에 대한 공무방해죄 ·································································· 763
1.법정ㆍ국회회의장 모욕죄 ············································································· 763
2.인권옹호직무방해죄 ····················································································· 764
3.공무상비밀표시무효죄 ·················································································· 766
4.공용서류등 무효죄 ························································································ 770
5.공용물파괴죄 ································································································ 772
6.공무상보관물무효죄 ····················································································· 772
7.특수공무방해죄ㆍ특수공무방해치사상죄 ····················································· 773
제 3 절 도주와 범인은닉의 죄
§ 45
Ⅰ. 총 설 ······································································································ 774
1.의의와 본질 ··································································································· 774
2.입 법 론 ······································································································· 775
Ⅱ. 도 주 죄······································································································· 776
1.단순도주죄 ···································································································· 776
2.집합명령위반죄 ····························································································· 778
3.특수도주죄 ···································································································· 778
Ⅲ. 도주원조죄 ··································································································· 779
1.단순 도주원조죄 ··························································································· 779
2.간수자 도주원조죄 ························································································ 781
Ⅳ. 범인은닉죄 ··································································································· 781
1.구성요건 ········································································································ 781
2.친족간의 특례 ······························································································· 787
제 4 절 위증과 증거인멸의 죄
§ 46
Ⅰ. 총 설 ······································································································ 789
1.위증죄의 의의와 본질 ··················································································· 789
2.증거인멸죄의 의의 ························································································ 791
Ⅱ. 위증의 죄 ····································································································· 792
1.위 증 죄 ······································································································· 792
2.모해위증죄 ···································································································· 803
3.허위감정ㆍ통역ㆍ번역죄 ··············································································· 803
Ⅲ. 증거인멸의 죄 ······························································································ 804
1.증거인멸죄 ···································································································· 804
2.증인은닉ㆍ도피죄 ·························································································· 808
3.모해증거인멸죄 ····························································································· 808
제 5 절 무고의 죄
§ 47
Ⅰ. 총 설 ······································································································ 809
Ⅱ. 무 고 죄······································································································· 811
1.구성요건 ········································································································ 811
2.위법성과 죄수 및 처벌 ·················································································· 817
색인(조문ㆍ판례ㆍ사항) ····················································································· 819
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