제12판 2021.09.10

중판 2020.10.06

제11판 2019. 8. 25

중판 2017. 8. 30

제10판 보정판 2017. 1. 25

제10판 2016. 2. 20

중판 2014. 3. 10. 제9판 2013. 7. 10.

제8판 2012. 6. 30. 제7판 2010. 7. 30.

제6판 2009. 2. 28. 제5판 보정신판 2007. 8. 10.

보정판 2006. 9. 25. 제5판 2004. 8. 10.

제4판 2000. 1. 25. 신정판 1996. 7. 20.

전정판 1992. 2. 10. 초판 1989. 10. 30.

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, 대법원이 다수의 전원합의체판결을 통해 종전 견해를 변경하거나 다툼 있는 쟁점에 대하여 입장을 명확히 하였다. 특히 1953년 제정되어 시행 중인 현행 형법의 일본식 표현이나 어려운 한자어 등 대표적인 법률용어들을 우리말로 변경하고, 법률문장의 내용을 정확히 전달할 수 있도록 어순구조를 재배열하는 등 알기 쉬운 법률 문장으로 개정한 2020. 12. 8. 형법 일부개정법률이 2021년 12월 9일부터 시행됨에 따라 이를 반영한 제12판을 출간하게 되었다.

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), 강간예비․음모죄를 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 오인․착각․부지에 빠지게 되는 대상은 간음행위 자체는 물론 간음행위에 이르게 된 동기나 간음행위와 결부된 금전적․비금전적 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, ‘동산․채권 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 등기․등록을 요하는 자동차 등의 매도인이 매수인에게 소유권이전등록을 하지 않고 타에 처분(대법원 2020. 10. 22. 2020도6258 전원합의체판결)한 경우 배임죄를 부정한 판결, 시스템 설치․운영 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.

끝으로 형법각론의 초판부터 제12판까지 계속 출간해 주신 박영사 안종만 회장님께 깊이 감사드린다. 또한 본서의 제작을 책임져 주신 조성호 이사님과 편집을 담당하여 잘 마무리해 주신 김선민 이사님께도 감사의 말씀을 드린다.

2021년 8월

장 영 민, 강 동 범

제12판 머리말

이재상(1943–2013)

서울대학교 법과대학 졸업

제 6 회 사법시험 합격

사법대학원 수료(법학석사)

서울대학교 대학원(법학박사)

독일 Freiburg대학 수학

육군 법무관

부산지방검찰청 검사

서울지방검찰청 남부지청 검사

법무부 검찰국 겸 서울지방검찰청 검사

변호사

서울대학교 법과대학 강사

이화여자대학교 법정대학 교수

경희대학교 법과대학 교수

이화여자대학교 법과대학 교수

이화여자대학교 법학전문대학원 석좌교수

사법시험위원

법무부 법무자문위원, 보안처분심의위원

형사법개정특별심의위원회 위원

한국형사정책학회 회장

한국형사법학회 회장

형사판례연구회 회장

한국형사정책연구원 원장

법조윤리협의회 위원장

형사법개정특별심의위원회 위원장

제 6 회 사법시험 합격

사법대학원 수료(법학석사)

서울대학교 대학원(법학박사)

독일 Freiburg대학 수학

육군 법무관

부산지방검찰청 검사

서울지방검찰청 남부지청 검사

법무부 검찰국 겸 서울지방검찰청 검사

변호사

서울대학교 법과대학 강사

이화여자대학교 법정대학 교수

경희대학교 법과대학 교수

이화여자대학교 법과대학 교수

이화여자대학교 법학전문대학원 석좌교수

사법시험위원

법무부 법무자문위원, 보안처분심의위원

형사법개정특별심의위원회 위원

한국형사정책학회 회장

한국형사법학회 회장

형사판례연구회 회장

한국형사정책연구원 원장

법조윤리협의회 위원장

형사법개정특별심의위원회 위원장

저 서

보안처분의 연구(1978)

사회보호법론(1981)

형법신강〔총론 Ⅰ〕(1984)

형법신강〔각론 Ⅱ〕(1988)

형법신강〔각론 Ⅰ〕(전정판, 1989)

형법기본판례 총론(2011)

형법학〔선택형 문제해설〕(제16판, 2013, 신조사)

형사소송법 기본판례(2013)

형사소송법〔선택형 문제해설〕(제 3 판, 2015, 신조사)

형법연습(제 9 판, 2015, 신조사)

형법총론(제10판, 2019)

형사소송법(제12판, 2019)

형사소송법연습(제 8 판, 2017)

보안처분의 연구(1978)

사회보호법론(1981)

형법신강〔총론 Ⅰ〕(1984)

형법신강〔각론 Ⅱ〕(1988)

형법신강〔각론 Ⅰ〕(전정판, 1989)

형법기본판례 총론(2011)

형법학〔선택형 문제해설〕(제16판, 2013, 신조사)

형사소송법 기본판례(2013)

형사소송법〔선택형 문제해설〕(제 3 판, 2015, 신조사)

형법연습(제 9 판, 2015, 신조사)

형법총론(제10판, 2019)

형사소송법(제12판, 2019)

형사소송법연습(제 8 판, 2017)

장영민

서울대학교 법과대학 졸업

동 대학원 졸업, 법학박사

인하대학교 법정대학 교수

사법시험, 행정고시, 입법고등고시 시험위원

한 국법철학회, 한국형사법학회, 한국형사판례연구회 회장

국가생명윤리심의위원회 위원

이화여자대학교 법학전문대학원 교수

형사법개정특별위원회 위원

이화여자대학교 명예교수

수 상

한국범죄방지재단 학술상(2013)

유기천법률문화상(2015)

한국범죄방지재단 학술상(2013)

유기천법률문화상(2015)

강동범

서울대학교 법과대학 졸업

동 대학원 졸업, 법학박사

서경대학교, 서울시립대학교 교수

사법시험, 행정고시, 입법고등고시 시험위원

한국형사정책학회 회장

서울서부지방법원 국선변호운영위원회 위원

대검찰청 검찰수사심의위원회 위원

법무부 감찰위원회 위원장

이화여자대학교 법과대학장․법학전문대학원장

현재 이화여자대학교 법학전문대학원 교수

서 론

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. 촉탁․승낙에 의한 살인죄 ·············································································· 31

3. 자살교사․방조죄 ···························································································· 34

Ⅴ. 위계․위력에 의한 살인죄 ············································································· 38

Ⅵ. 살인예비․음모죄 ··························································································· 39

제 2 절 상해와 폭행의 죄

§ 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. 중상해죄․존속중상해죄 ················································································· 51

4. 특수상해죄․특수중상해죄 ············································································· 54

5. 상해치사죄․존속상해치사죄 ·········································································· 54

6. 동시범의 특례 ································································································· 56

Ⅲ. 폭행의 죄 ······································································································· 60

1. 폭 행 죄 ········································································································· 60

2. 존속폭행죄 ······································································································ 64

3. 특수폭행죄 ······································································································ 64

4. 폭행치사상죄 ·································································································· 68

Ⅳ. 상습상해(존속상해․중상해․존속중상해․특수상해)․상습폭행

(존속폭행․특수폭행)죄 ················································································· 70

제 3 절 과실치사상의 죄

§ 4

Ⅰ. 총 설 ········································································································ 71

1. 과실치사상의 죄의 의의 ················································································· 71

2. 과실범의 구조 ································································································· 71

Ⅱ. 과실치상죄․과실치사죄 ················································································ 72

1. 과실치상죄 ······································································································ 72

2. 과실치사죄 ······································································································ 73

Ⅲ. 업무상과실․중과실치사상죄 ········································································· 75

1. 업무상과실치사상죄 ······················································································· 75

2. 중과실치사상죄 ······························································································· 83

3. 차의 교통으로 인한 업무상과실치사상죄 ······················································· 83

제 4 절 낙태의 죄

§ 5

Ⅰ. 총 설 ········································································································ 88

1. 낙태죄의 의의 ································································································· 88

2. 현행법상 낙태죄의 처벌 ················································································· 90

3. 낙태의 자유화 문제 ························································································ 93

Ⅱ. 자기낙태죄․동의낙태죄 ················································································ 97

1. 자기낙태죄 ······································································································ 97

2. 동의낙태죄 ······································································································ 99

Ⅲ. 낙태죄의 가중적 구성요건 ··········································································· 100

1. 업무상 낙태죄 ······························································································· 100

2. 부동의낙태죄 ································································································ 101

3. 낙태치사상죄 ································································································ 102

제 5 절 유기와 학대의 죄

§ 6

Ⅰ. 총 설 ······································································································ 103

1. 유기죄의 의의 ······························································································· 103

2. 보호법익 ········································································································ 104

Ⅱ. 유 기 죄······································································································· 105

1. 단순유기죄 ···································································································· 105

2. 존속유기죄 ···································································································· 110

3. 중유기죄․존속중유기죄 ··············································································· 110

4. 영아유기죄 ···································································································· 111

5. 유기치사상죄․존속유기치사상죄 ································································ 111

Ⅲ. 학대죄와 아동혹사죄 ··················································································· 112

1. 학대죄․존속학대죄 ······················································································ 112

2. 아동혹사죄 ···································································································· 113

제 2 장 자유에 대한 죄

제 1 절 협박의 죄

§ 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. 체포․감금죄의 의의 ····················································································· 122

2. 구성요건의 체계 ··························································································· 123

Ⅱ. 체포․감금죄 ································································································ 124

Ⅲ. 가중적 구성요건 ··························································································· 128

1. 존속체포․감금죄 ·························································································· 128

2. 중체포․감금죄, 존속중체포․감금죄 ··························································· 129

3. 특수체포․감금죄 ·························································································· 129

4. 상습체포․감금죄 ·························································································· 130

5. 체포․감금치사상죄, 존속체포․감금치사상죄 ············································ 130

제 3 절 약취․유인 및 인신매매의 죄

§ 9

Ⅰ. 총 설 ······································································································ 131

1. 약취․유인 및 인신매매의 죄의 의의 ··························································· 131

2. 보호법익 ········································································································ 133

3. 구성요건의 체계 ··························································································· 134

Ⅱ. 미성년자 약취․유인죄 ················································································ 135

1. 객관적 구성요건 ··························································································· 135

2. 주관적 구성요건 ··························································································· 138

3. 위 법 성 ······································································································· 139

4. 형의 감경 ······································································································ 139

Ⅲ. 추행․간음․결혼․영리․국외이송 등 목적 약취․유인죄 ·························· 140

1. 추행․간음․결혼․영리목적 약취․유인죄 ·················································· 140

2. 노동력 착취, 성매매와 성적 착취, 장기적출목적 약취․유인죄 ·················· 142

3. 국외이송목적 약취․유인죄 ·········································································· 143

Ⅳ. 인신매매죄 ··································································································· 144

1. 단순 인신매매죄 ··························································································· 144

2. 추행․간음․결혼 또는 영리목적 인신매매죄, 노동력 착취․성매매와

성적 착취․장기적출목적 인신매매죄, 국외이송목적 인신매매죄,

피인신매매자 국외이송죄·············································································· 146

Ⅴ. 약취․유인․매매․이송 등 상해․치상죄, 동 살인․치사죄 ······················· 146

Ⅵ. 약취․유인․매매․이송된 사람의 수수․은닉 등 죄 ··································· 147

Ⅶ. 미성년자 약취․유인 등 예비․음모죄························································· 148

제 4 절 강요의 죄

§ 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. 인질상해․치상죄 ·························································································· 158

3. 인질살해․치사죄 ·························································································· 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. 준강간죄․준강제추행죄 ··············································································· 171

2. 미성년자 의제강간․유사강간․강제추행죄 ················································· 173

Ⅳ. 강간 등 상해․치상죄, 강간 등 살인․치사죄 ············································· 175

1. 강간 등 상해․치상죄 ··················································································· 175

2. 강간 등 살인․치사죄 ··················································································· 178

Ⅴ. 독립된 구성요건 ··························································································· 179

1. 미성년자․심신미약자 간음․추행죄 ···························································· 179

2. 업무상위력 등에 의한 간음죄 ······································································· 180

Ⅵ. 상습강간․강제추행죄, 상습준강간․준강제추행등죄 ································· 182

Ⅶ. 강간 등 예비․음모죄 ··················································································· 182

제 3 장 명예와 신용에 대한 죄

제 1 절 명예에 관한 죄

§ 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 신용․업무와 경매에 관한 죄

§ 13

Ⅰ. 총 설 ······································································································ 205

1. 신용․업무와 경매에 관한 죄의 의의 ··························································· 205

2. 신용․업무와 경매에 관한 죄의 본질 ··························································· 206

Ⅱ. 신용훼손죄 ··································································································· 208

Ⅲ. 업무방해죄 ··································································································· 210

Ⅳ. 경매․입찰방해죄 ························································································· 221

제 4 장 사생활의 평온에 대한 죄

제 1 절 비밀침해의 죄

§ 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. 주거․신체수색죄 ························································································· 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. 강도상해․치상죄 ·························································································· 319

3. 강도살인․치사죄 ·························································································· 321

4. 강도강간죄 ···································································································· 323

5. 해상강도죄 ···································································································· 325

6. 상습강도죄 ···································································································· 326

Ⅴ. 강도예비․음모죄 ························································································· 326

제 3 절 사기의 죄

§ 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. 장물취득․양도․운반․보관․알선죄 ·························································· 453

1. 객관적 구성요건 ··························································································· 453

2. 주관적 구성요건 ··························································································· 463

3. 다른 범죄와의 관계 ······················································································ 463

4. 친족간의 범행 ······························································································· 465

Ⅲ. 상습장물취득․양도․운반․보관․알선죄 ··················································· 466

Ⅳ. 업무상과실․중과실 장물취득․운반․보관․알선죄 ··································· 466

제 8 절 손괴의 죄

§ 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. 점유강취죄․준점유강취죄 ··········································································· 486

2. 중권리행사방해죄 ························································································· 487

Ⅳ. 강제집행면탈죄 ···························································································· 487

1. 의 의 ······································································································· 488

2. 객관적 구성요건 ··························································································· 488

3. 주관적 구성요건 ··························································································· 492

제 2 편 사회적 법익에 대한 죄

제 1 장 공공의 안전과 평온에 대한 죄

제 1 절 공안을 해하는 죄

§ 25

Ⅰ. 총 설 ······································································································ 495

1. 의의와 본질 ··································································································· 495

2. 입 법 론 ······································································································· 496

Ⅱ. 범죄단체 조직죄 ··························································································· 497

Ⅲ. 소요죄․다중불해산죄 ·················································································· 500

1. 소 요 죄 ······································································································· 500

2. 다중불해산죄 ································································································ 504

Ⅳ. 전시 공수계약 불이행죄 ·············································································· 506

Ⅴ. 공무원 자격사칭죄 ······················································································· 507

제 2 절 폭발물에 관한 죄

§ 26

Ⅰ. 총 설 ······································································································ 508

1. 의의와 입법례 ······························································································· 508

2. 보호법익 ········································································································ 508

Ⅱ. 폭발물사용죄································································································ 509

1. 폭발물사용죄 ································································································ 509

2. 전시폭발물사용죄 ························································································· 511

Ⅲ. 폭발물사용 예비․음모등죄 ········································································· 511

1. 폭발물사용 예비․음모․선동죄 ··································································· 511

2. 전시폭발물제조․수입․수출․수수․소지죄 ················································ 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. 방화예비․음모죄 ·························································································· 529

Ⅲ. 준방화죄 ······································································································· 529

1. 진화방해죄 ···································································································· 529

2. 폭발성물건파열죄 ························································································· 531

3. 가스․전기등 방류죄 ····················································································· 532

4. 가스․전기등 공급방해죄 ············································································· 533

Ⅳ. 실 화 죄······································································································· 534

1. 단순실화죄 ···································································································· 534

2. 업무상실화․중실화죄 ·················································································· 535

3. 과실 폭발성물건 파열죄, 과실 가스․전기등 방류죄, 과실 가스․전기등

공급방해죄, 업무상과실․중과실 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. 일수예비․음모죄 ·························································································· 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. 기차․선박등 교통방해죄 ············································································· 546

3. 기차등 전복죄 ······························································································· 548

4. 교통방해치사상죄 ························································································· 549

Ⅲ. 과실에 의한 교통방해죄 ·············································································· 550

1. 과실교통방해죄 ····························································································· 550

2. 업무상과실․중과실교통방해죄 ···································································· 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. 내국통화위조․변조죄 ·················································································· 554

2. 내국유통 외국통화위조․변조죄 ··································································· 557

3. 외국통용 외국통화위조․변조죄 ··································································· 558

4. 위조․변조통화행사등죄 ··············································································· 558

Ⅲ. 통화위조죄의 수정적 구성요건 ···································································· 560

1. 위조․변조통화취득죄 ·················································································· 560

2. 위조통화취득후 지정행사죄 ········································································· 561

3. 통화유사물제조등죄 ····················································································· 562

4. 통화위조예비․음모죄 ·················································································· 563

제 2 절 유가증권․우표와 인지에 관한 죄

§ 31

Ⅰ. 총 설 ······································································································ 564

1. 의의와 본질 ··································································································· 564

2. 유가증권의 의의 ··························································································· 565

3. 구성요건의 체계 ··························································································· 567

Ⅱ. 유가증권위조죄 ···························································································· 568

1. 유가증권위조․변조죄 ·················································································· 568

2. 기재의 위조․변조죄 ····················································································· 571

3. 자격모용에 의한 유가증권작성죄 ································································· 571

Ⅲ. 허위유가증권작성죄 ····················································································· 572

Ⅳ. 위조등 유가증권행사죄 ················································································ 573

Ⅴ. 인지․우표에 관한 죄 ··················································································· 574

1. 인지․우표등 위조․변조죄 ·········································································· 574

2. 위조․변조인지․우표등 행사죄 ··································································· 575

3. 위조․변조인지․우표등 취득죄 ··································································· 575

4. 인지․우표등 소인말소죄 ············································································· 576

5. 인지․우표 유사물제조등죄 ·········································································· 576

Ⅵ. 유가증권위조등 예비․음모죄 ····································································· 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. 문서위조․변조죄 ························································································· 587

1. 사문서위조․변조죄 ······················································································ 587

2. 자격모용에 의한 사문서작성죄 ···································································· 595

3. 공문서위조․변조죄 ······················································································ 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. 위조․변조․작성 사문서행사죄 ··································································· 612

2. 위조․변조․작성 공문서행사죄 ··································································· 614

Ⅴ. 문서부정행사죄 ···························································································· 615

1. 사문서등 부정행사죄 ···················································································· 615

2. 공문서등 부정행사죄 ···················································································· 616

Ⅵ. 전자기록위작․변작등죄 ·············································································· 618

1. 의 의 ······································································································· 618

2. 사전자기록위작․변작․행사죄 ···································································· 618

3. 공전자기록 위작․변작․행사죄 ··································································· 620

제 4 절 인장에 관한 죄

§ 33

Ⅰ. 총 설 ······································································································ 622

1. 의의와 본질 ··································································································· 622

2. 인장․서명․기명․기호 ················································································ 623

Ⅱ. 사인등 위조․행사죄 ···················································································· 625

1. 사인등 위조․부정사용죄 ············································································· 625

2. 위조등 사인행사죄 ························································································ 626

Ⅲ. 공인위조․행사죄 ························································································· 627

1. 공인등 위조․부정사용죄 ············································································· 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. 아편흡식․동 장소제공죄 ············································································· 638

1. 아편흡식등죄 ································································································ 638

2. 아편흡식등 장소제공죄 ················································································· 639

Ⅲ. 가중적 구성요건 ··························································································· 639

1. 아편등 제조․수입․판매․판매목적 소지죄 ················································ 639

2. 아편흡식기 제조․수입․판매․판매목적 소지죄 ········································· 640

3. 세관공무원의 아편등 수입․수입허용죄 ······················································ 641

4. 상습아편흡식, 아편등 제조․수입․판매등죄 ··············································· 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 반포․판매․임대․공연전시죄 ························································· 647

2. 음화등 제조․소지․수입․수출죄 ································································ 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. 복표발매․중개․취득죄··············································································· 662

제 3 절 신앙에 관한 죄

§ 38

Ⅰ. 총 설 ······································································································ 664

1. 종교범죄와 형법 ··························································································· 664

2. 보호법익 ········································································································ 665

Ⅱ. 장례식․제사․예배․설교방해죄 ································································· 666

Ⅲ. 시체에 관한 죄 ····························································································· 667

1. 시체․유골․유발오욕죄 ··············································································· 667

2. 분묘발굴죄 ···································································································· 668

3. 시체등 손괴․유기․은닉․영득죄 ································································ 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. 내란예비․음모․선동․선전죄 ···································································· 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. 이적예비․음모, 선동․선전죄 ······································································ 693

Ⅳ. 간 첩 죄······································································································· 693

Ⅴ. 전시 군수계약 불이행죄 ·············································································· 697

제 3 절 국기에 관한 죄

§ 41

Ⅰ. 총 설 ······································································································ 698

Ⅱ. 국기․국장모독죄 ························································································· 698

Ⅲ. 국기․국장비방죄 ························································································· 700

제 4 절 국교에 관한 죄

§ 42

Ⅰ. 총 설 ······································································································ 700

1. 의의와 보호법익 ··························································································· 700

2. 구성요건의 체계 ··························································································· 701

Ⅱ. 외국원수․사절 및 국기에 대한 죄 ······························································ 702

1. 외국원수에 대한 폭행등죄 ············································································ 702

2. 외국사절에 대한 폭행등죄 ············································································ 703

3. 외국국기․국장모독죄 ·················································································· 703

Ⅲ. 외국에 대한 사전․중립명령위반죄 ····························································· 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. 불법체포․감금죄 ·························································································· 720

3. 폭행․가혹행위죄 ·························································································· 721

4. 선거방해죄 ···································································································· 723

Ⅳ. 뇌 물 죄······································································································· 724

1. 일반이론 ········································································································ 724

2. 단순수뢰죄 ···································································································· 731

3. 사전수뢰죄 ···································································································· 737

4. 제3자뇌물수수․요구․약속죄 ······································································ 738

5. 수뢰후부정처사죄 ························································································· 739

6. 부정처사후수뢰죄 ························································································· 740

7. 알선수뢰죄 ···································································································· 741

8. 증뢰죄․증뢰물전달죄 ·················································································· 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. 직무․사직강요죄 ·························································································· 758

2. 위계에 의한 공무집행방해죄 ········································································ 760

Ⅳ. 특수한 공무에 대한 공무방해죄 ·································································· 763

1. 법정․국회회의장 모욕죄 ············································································· 763

2. 인권옹호직무방해죄 ····················································································· 764

3. 공무상비밀표시무효죄 ·················································································· 766

4. 공용서류등 무효죄 ························································································ 770

5. 공용물파괴죄 ································································································ 772

6. 공무상보관물무효죄 ····················································································· 772

7. 특수공무방해죄․특수공무방해치사상죄 ····················································· 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. 허위감정․통역․번역죄 ··············································································· 803

Ⅲ. 증거인멸의 죄 ······························································································ 804

1. 증거인멸죄 ···································································································· 804

2. 증인은닉․도피죄 ·························································································· 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(조문․판례․사항) ····················································································· 819