초판발행 2026. 8. 25

“법률 단위의 암기를 넘어, 특별형법의 핵심 맥락을 장악하다”

오늘날 생성형 AI와 고도화된 법률 검색 엔진의 발전은 법학 교육과 실무의 지형을 근본적으로 바꾸어 놓았습니다. 이제 구체적인 사실관계에 부합하는 판례를 검색하고 단편적인 법조문을 확인하는 일은 더 이상 인간의 독점적 영역이 아닙니다. 그러한 지식은 손가락 끝에서 몇 초 만에 쏟아져 나오는 시대가 되었습니다. 그러나 역설적이게도 기술이 발전할수록 수험과 실무 현장의 혼란은 그 어느 때보다 깊어지고 있습니다. “무엇이 문제인지를 모르면, 무엇을 찾아야 할지도 모르기 때문”입니다. 복잡다단한 사건을 마주했을 때, 이것이 특별법상 가중처벌 대상인지 혹은 어떤 절차적 특례가 작동하는 것인지 등 사안의 ‘핵심’을 포착해 내지 못한다면, 아무리 뛰어난 AI 비서가 곁에 있어도 무용지물에 불과합니다.

본서는 조문 나열식의 해설서도, 판례 요약서도 아닙니다. 사실관계를 마주했을때 법률가가 거쳐야 하는 [사안 분류 => 쟁점 추출 => 해결을 위한 검색]의 사고 프로세스를 책의 구조 그 자체로 구현하고자 노력했습니다. 이를 위해 본서는 법률 단위 평면적 서술을 과감히 탈피하고, [교통 관련범죄], [성폭력범죄], [뇌물 관련범죄], [가중처벌], [기타 중요 범죄]의 5대 주제별 분류 체계를 도입하였습니다.

본서의 구체적 차별성은 다음과 같습니다.

첫째, 분야별 입체적 망라와 큰 그림(Big Picture)의 제시입니다. 분야별로 관련 법령들을 유기적으로 결합하여 구체적 사안에 대한 독자의 대응능력을 기르도록 했습니다. 예컨대 ‘교통’ 분야에서는 도로교통법, 교통사고처리법, 특정범죄가중법을, ‘성폭력’ 분야에서는 형법, 성폭력처벌법, 청소년성보호법을 한눈에 조망하도록 했습니다. 이를 통해 독자는 각 범죄의 구성요건, 가중처벌 여부, 소추요건의 특례 등을 거시적으로 관통하는 지식을 습득하게 됩니다.

둘째, 쟁점 발굴과 검색으로의 내비게이션 역할입니다. 이 책은 판례 지식을 주입하는 데 머무르지 않고, 사안을 보았을 때 어떤 범죄가 구성되고 어떤 숨은 쟁점이 있는지 스스로 포착하도록 돕습니다. 나아가 문제를 해결하기 위해 AI나 검색 엔진에 “무엇을 검색해야 하는가”에 대한 정확한 나침반을 쥐여줍니다.

셋째, 가독성을 극대화한 압축된 분량과 별책부록의 활용입니다. 장황한 판례 원문을 그대로 나열하는 책 부풀리기를 지양하고, 사고의 뼈대를 잡는 데 꼭 필요한 핵심 법리만을 추려 분량을 획기적으로 줄였습니다. 복잡한 비교나 대조가 필요한 부분은 표와 그림을 활용하되, 본문의 흐름을 끊지 않고 학습 효율을 극대화할 수 있도록 [별책부록]으로 분리 수록했습니다.

본서를 통해 단순한 암기를 넘어 사안 전체를 장악하는 눈을 가질 수 있기를 기대합니다. 끝으로 이 책이 세상에 나올 수 있도록 도움을 아끼지 않은 박영사 관계 자분들께 깊은 감사를 전합니다.

부산대학교 법학전문대학원 연구실에서

저자 씀

저자약력

김형규

경찰대학 법학과 졸업(법학학사)

The College of William & Mary Law School (VA) 석사과정 졸업(법학석사)

부산대학교 대학원 박사과정 졸업(법학박사)

미국 뉴욕주 변호사

부산대학교 법학전문대학원 교수

前 경찰대학 경찰학과 교수

법무연수원, 경찰수사연수원, 경찰인재개발원 강사

강원 ․ 건국 ․ 고려 ․ 경북 ․ 경희 ․ 동아 ․ 부산 ․ 서강 ․ 서울 ․ 서울시립 ․ 성균관 ․ 아주 ․ 연세 ․ 영남 ․

이화여자 ․ 인하 ․ 원광 ․ 전북 ․ 제주 ․ 충남 ․ 충북 ․ 한국외국어 ․ 한양대학교 법학전문대학원 겸임교수

저서 ․ 논문

형사소송법, 박영사

경찰관직무집행법의 이론과 실제 제2판, 박영사

성폭력 범죄 법률가이드 제2판, 박영사

중대재해처벌법 전면개정판(공저), 박영사

수사사례연구(공저), 박영사

경찰실무(공저), 경찰대학출판부

강제수사로서 불심검문의 요건과 한계

형사소송법 제199조 제2항의 적용범위 축소에 따른 문제점과 개선방안

수사상 증거수집에 대한 개인정보보호법의 적용요건

신체촬영물의 압수수색과 관련성

체포 ․ 구속된 피의자의 인치 ․ 구금 장소 변경의 요건 및 절차

위계 ․ 위력에 의한 성폭력 범죄의 문제점과 개선방안

가정폭력 범죄장소에 대한 경찰의 강제출입 가능성 검토

CCTV 영상정보의 적법한 압수에 대한 연구 외 다수

차례

제1장 교통 관련범죄

Ⅰ. 개관 ······································································································ 15

Ⅱ. 운전 관련범죄 ······················································································· 16

1. 개관 ·································································································16

2. 도교법상 운전 관련 정의규정 ······················································17

가. 도로 ·····································································································17

나. 차마 ····································································································19

다. 본래용도로 사용 ················································································22

3. 음주운전 및 관련범죄 ···································································23

가. 개관 ····································································································23

나. 음주운전 ····························································································24

다. 측정불응 ·····························································································31

라. 측정방해 ···························································································41

마. 음주운전, 측정불응, 측정방해의 재범 ············································42

4. 무면허운전 ·····················································································43

가. 개관 ····································································································43

나. 운전면허 제도의 이해 ······································································45

다. 발급처분, 취소 · 정지처분의 효력발생 시점 ··································45

Ⅲ. 교통사고 관련범죄 ················································································ 48

1. 교통사고 ·························································································48

가. 개관 ····································································································48

나. 물피사고 ·····························································································53

다. 인피사고 ·····························································································55

2. 사고 후 미조치 ··············································································65

가. 도교법상 사고 후 미조치 ································································65

나. 특가법상 도주차량 ············································································68

Ⅳ. 죄수 ······································································································ 73

1. 운전단계 ························································································73

2. 사고단계 ·······················································································74

3. 조치단계 ·························································································74

가. 원칙과 예외 ·······················································································74

나. 도교법상 미조치죄와 유기죄 및 유기치사상죄의 관계 ·················74

Ⅴ. 핵심정리 ······························································································· 75

제2장 성폭력범죄

Ⅰ. 개관 ······································································································ 79

Ⅱ. 주요 성폭력범죄 ··················································································· 80

1. 개관 ································································································80

가. 구성요건의 검토 ·············································································80

나. 소추요건의 검토 ················································································82

다. 개정에 따른 검토 ··············································································82

라. 죄수의 정리 ·····················································································84

2. 구성요건 ·························································································84

가. 기본요건 ··························································································84

나. 가중처벌 요건 ·················································································108

3. 소추요건 ························································································117

가. 친고죄, 반의사불벌죄 ······································································117

나. 공소시효 ···························································································118

4. 죄수정리 ························································································118

가. 원칙 ···································································································118

나. 타죄와의 관계 ··················································································119

다. 가중처벌에 있어서의 죄수 ·····························································120

5. 기타 ·······························································································120

가. 공소사실의 특정 ·············································································120

나. 사실인정 ···························································································121

Ⅲ. 기타 성폭력범죄 ················································································· 122

1. 통신매체이용음란죄(성폭법 제13조) ···········································122

가. 주요 구성요건 ··················································································122

나. 타죄와의 관계 ·················································································124

2. 신체촬영물, 허위 영상물, 성착취물 관련 범죄 ························124

가. 신체촬영물 관련 범죄(성폭법 제14조) ········································124

나. 허위영상물 관련범죄(성폭법 제14조의2) ······································131

다. 성착취물 관련범죄(청성법 제11조) ················································132

라. 협박·강요죄(성폭법 제14조의3, 청성법 제11조의2) ····················136

Ⅳ. 핵심정리 ····························································································· 139

제3장 뇌물 관련범죄

Ⅰ. 개관 ···································································································· 143

1. 뇌물 관련범죄의 분류와 검토순서 ·············································143

가. 공무원 등이 뇌물을 받는 범죄 ·····················································144

나. 공무원 등에게 뇌물을 주는 범죄 ··················································145

다. 검토순서 ···························································································145

2. 주요 쟁점 ·····················································································146

가. 요구 · 의사표시 및 약속의 개별 구성요건화 ·······························146

나. 몰수와 추징 ·····················································································146

3. 구체적 사안의 적용을 통한 정리 ··············································147

Ⅱ. 개별 뇌물죄의 이해 ············································································ 148

1. 뇌물을 받는 범죄 ·········································································148

가. 수뢰죄(형법 제129조 제1항) ··························································148

나. 제3자 뇌물제공죄(형법 제130조) ··················································153

다. 사전수뢰죄(형법 제129조 제2항)와

사후수뢰죄(형법 제131조 제3항) ···················································154

라. 수뢰후 부정처사죄(형법 제131조 제1항)와

부정처사후 수뢰죄(형법 제131조 제2항) ······································156

마. 알선수뢰죄(형법 제132조) 및 관련범죄 ········································157

2. 뇌물을 주는 범죄 ········································································165

가. 증뢰죄(형법 제133조 제1항) ··························································165

나. 제3자 뇌물교부 · 취득죄(형법 제133조 제2항) ····························166

Ⅲ. 가중처벌 및 구성요건의 확장 ···························································· 167

1. 가중처벌(특가법 제2조) ·······························································167

가. 적용대상 ···························································································168

나. 수뢰액 계산방법 ···········································································169

2. 처벌의 확장 ··················································································171

가. 주체 ···································································································171

나. 청탁금지법에 의한 확장 ··································································171

Ⅳ. 필요적 몰수 · 추징(형법 제134조) ····················································· 172

1. 몰수 · 추징의 상대방 ····································································172

2. 몰수 · 추징의 방법과 추징가액 산정의 기준시기 ·····················173

Ⅴ. 핵심정리 ····························································································· 174

제4장 가중처벌

Ⅰ. 특정범죄 가중처벌 등에 관한 법률 ··················································· 177

1. 제4조의2 체포 · 감금 등의 가중처벌 ·······································177

2. 제4조의3 공무상 비밀누설의 가중처벌 ·····································178

3. 제5조 국고 등 손실 ····································································179

가. 고의 ··································································································180

나. 뇌물죄와의 관계 ·············································································180

4. 제5조의2 약취 · 유인죄의 가중처벌 ···········································181

5. 제5조의4 상습 강도 · 절도죄 등의 가중처벌 ···························182

가. 5인 이상 상습합동절도(제2항) ······················································183

나. 누범 강도 · 절도 · 장물 관련 범죄(제5항) ····································185

다. 누범상습절도(제6항) ·······································································187

6. 제5조의5 강도상해 등 재범자의 가중처벌 ·······························188

7. 제5조의9 보복범죄의 가중처벌 등 ············································188

가. 목적범인 경우 ·················································································189

나. 목적범이 아닌 경우 ········································································190

8. 제5조의12 도주선박의 선장 또는 승무원에 대한 가중처벌 ···190

9. 제6조 「관세법」 위반행위의 가중처벌 ······································192

10. 제8조 조세 포탈의 가중처벌 ···················································193

11. 제8조의2 세금계산서 교부의무 위반 등의 가중처벌 ·············194

12. 제9조 「산림자원의 조성 및 관리에 관한 법률」

등 위반행위의 가중처벌 ····························································195

13. 제11조 마약사범 등의 가중처벌 ···············································196

14. 제12조 외국인을 위한 탈법행위 ···············································197

15. 기타 ·····························································································198

Ⅱ. 특정경제범죄 가중처벌 등에 관한 법률 ············································ 198

1. 제3조 특정재산범죄의 가중처벌 ················································198

가. 이득액의 성격 ·················································································199

나. 이득액의 산정 ·················································································199

2. 제4조 재산국외도피의 죄 ···························································202

가. 국외이동 ························································································203

나. 국내반입 ··························································································203

다. 고의 ·································································································203

3. 제9조 저축 관련 부당행위의 죄 ···············································204

가. 저축의 주체 및 중개인 ··································································205

나. 임직원 ······························································································205

4. 기타 ······························································································205

가. 필요적 몰수·추징 ···········································································205

나. 기타 ·································································································206

Ⅲ. 폭력행위 등 처벌에 관한 법률 ·························································· 206

1. 제2조 폭행 등 ·············································································206

가. 2인 이상 공동 폭행 등 ··································································207

나. 누범 ··································································································207

다. 소추요건 등 ····················································································208

2. 제3조 집단적 폭행 등 ································································208

3. 제4조 단체 등의 구성 · 활동 ····················································209

가. 범죄단체 · 집단의 구성, 가입, 활동 ··············································210

나. 기타 ··································································································212

4. 제5조 단체 등의 이용·지원 ························································212

5. 제7조 우범자 ················································································213

6. 제8조 정당방위 등 ······································································213

7. 기타 ·······························································································214

제5장 기타

Ⅰ. 변호사법 ····························································································· 217

1. 개관 ································································································217

2. 변호사 ···························································································218

가. 독직행위(제33조) ·············································································218

나. 수임알선에 관한 이익 제공과 그 상대방(제34조 제1항, 제2항) 218

다. 비변호사와의 동업금지(제34조 제3항) ·········································221

3. 비변호사 ·······················································································222

가. 법률사무 취급 · 알선(제109조) ······················································222

나. 변호사 고용·동업(제34조 제4항, 제5항) ······································223

4. 기타 ······························································································224

가. 변호사 ······························································································224

나. 비변호사 ··························································································224

다. 기타 ··································································································225

Ⅱ. 부동산등기 특별조치법 ······································································· 225

1. 개관 ·······························································································225

2. 소유권이전등기등 신청의무 위반(제2조) ··································225

가. 주체 ··································································································226

나. 등기기한 내 미등기 ········································································227

다. 계약의 유효성 ···············································································227

라. 몰수 · 추징 ·······················································································227

3. 검인의무 위반(제4조) ··································································227

Ⅲ. 부정수표단속법 ··················································································· 228

1. 개관 ·······························································································228

가. 부수법상 수표의 의미 ····································································229

나. 정상 발행 후 요건정정 ··································································229

다. 발행시 하자 ····················································································230

2. 부정수표의 발행과 작성 ·····························································232

가. 구성요건 ··························································································233

나. 반의사불벌죄 및 수표의 회수 ·······················································234

다. 법인, 단체, 대리인의 형사책임 ·····················································235

3. 부도수표와 허위신고 ···································································235

가. 부도수표 ··························································································235

나. 허위신고 ···························································································237

4. 수표 위 · 변조 ·············································································238

가. 적용범위 ··························································································238

나. 위변조의 의미 ·················································································238

다. 무효인 수표 ·····················································································239

라. 타죄와의 관계 ·················································································239

5. 절차상 특례 ·················································································240

Ⅳ. 여신전문금융업법 ················································································ 241

1. 개관 ·······························································································241

2. 각 카드의 정의 ············································································241

3. 위변조 관련범죄 ··········································································243

가. 위변조 ······························································································244

나. 판매와 취득 ····················································································244

다. 사용 ·································································································244

4. 부정취득 관련범죄 ······································································244

가. 카드 부정취득의 유형 ····································································245

나. 부정사용 ··························································································247

다. 타죄와의 관계 ·················································································247

5. 신용카드의 양도 · 양수 ·······························································249

6. 기타 ······························································································249

Ⅴ. 정보통신망법 ······················································································ 249

1. 개관 ······························································································249

2. 정보통신망법상 명예훼손 ···························································250

가. 비방할 목적 ····················································································250

나. 정보통신망 ·······················································································251

3. 악성프로그램 전달 · 유포 ····························································251

가. 악성프로그램 ····················································································251

나. 전달, 유포 ························································································252

4. 정보통신망 침입, 장애유발 ························································253

가. 정보통신망 침입 ·············································································253

나. 정보통신망 장애유발 ······································································254

5. 기타 ·······························································································255