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

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