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    2020 주관식시험대비 형법 사례형 판례정리

    저자: 신호진 출판사: 문형사 출간일: 2019년 06월 28일 페이지: 387
    19,800원  22,000원 -10%

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  • 서문:

     

    ‘사례형 판례정리’에 대해서

    “사례형 판례정리”는 변호사시험 사례형 문제를 대비하여 단기간에 효율적으로 중요
    논점을 정리할 수 있도록 만들어진 교재이다.

    1. 사례문제의 기초가 되는 중요판례 총정리

    변호사시험 사례형 문제를 분석해 보면 특정의 판례를 기초로 해서 사안을 각색하거
    나 변형해서 만들어진 것들이 대부분이다. 그러므로 다양하게 변형된 사례문제에 잘
    대처하기 위해서는 원래의 판례사안을 정확하게 파악하고 있어야만 한다. 그래서 본서
    에서는 2001년~2017년의 사법시험과 2012년~2019년의 변호사시험에서 출제되었던
    사례문제를 분석하여 출제의 기초가 되었던 원래의 판례사안을 정확하게 소개하고 그와
    관련된 논점에 대한 해설을 모범답안 형태로 구성하였다. 또한 최신 중요판례를 사례문
    제형태로 정리하여 수록함으로써 미기출 판례에도 적절하게 대비할 수 있도록 하였다.

    2. 채점기준표에 의거한 모범답안식 해설

    답안지에 무엇을 어느 정도로 써야 할 것인가는 결국 채점기준표에 의해서 결정된다.
    그래서 본서에서는 사례형 문제에 대한 채점기준표를 참고하여 모범답안 형태의 해설을
    함으로써 출제자가 요구하는 것이 어느 정도인가를 정확하게 알 수 있도록 하였다. 물
    론 모범답안의 분량은 실제 답안에 서술해야 할 것보다 2배 정도 많다. 그 이유는 논
    점을 제대로 이해하기 위해서는 어느 정도의 상세한 설명이 필요하고, 동일한 논점일지
    라도 문제의 형태 및 배점에 따라 서술의 정도가 달라지는 것에 융통성 있게 대처할 수
    있도록 하기 위해서이다.

    3. 관련판례 수록 및 기출사례 해설

    출제의 기초가 되었던 판례의 사실관계를 기초로 모범답안식 해설을 한 후에는 그
    판례의 판결요지 및 관련 중요판례를 수록하였고, 다시 해당 판례를 기초로 한 기출 사
    례문제를 소개하고 해설하였다. 전자에 의해서는 판례의 입장을 정확하게 이해하고 또
    한 선택형 문제에 대한 대비도 어느 정도 할 수 있을 것이고, 후자에 의해서는 변형된
    문제에 대한 응용능력을 향상시킬 수 있을 것이다. 특히 후자를 활용하여 기출문제의
    형태 및 배점에 따른 답안구성 방법과 서술분량을 조절하는 훈련을 해 보기 바란다.
    본서의 효율적 활용으로 법조인의 꿈을 조속히 실현하기를 바라면서…

    2019년 6월 12일 법학박사 신 호 진
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    1. 판례의 변경과 소급효금지의 원칙 ··········································································· 3
    2. 유추적용금지의 원칙 ································································································· 7
    3. 법인의 범죄능력 ········································································································ 9
    4. 작위와 부작위의 구별 ····························································································· 12
    5. 보증인지위의 발생근거 및 미필적 고의 ······························································ 16
    6. 인과관계와 객관적 귀속 ························································································· 20
    7. 개괄적 고의와 불능미수 ························································································· 25
    8. 신뢰의 원칙과 그 적용한계 ··················································································· 29
    9. 부진정결과적 가중범과 직접성의 원칙 ································································ 32
    10. 개괄적 과실과 직접성의 원칙 ············································································· 37
    11. 결과적 가중범의 공동정범 ···················································································· 40
    12. 결과적 가중범의 미수 ··························································································· 42
    13. 주관적 정당화요소를 결여한 경우 ······································································ 45
    14. 지속적 위험에 대한 정당방위 ············································································· 46
    15. 환자의 자기결정권과 의사의 의무 ······································································ 50
    16. 원인에 있어서 자유로운 행위 ············································································· 54
    17. 금지착오와 정당한 이유 ······················································································· 58
    18. 위법성조각사유의 전제사실에 대한 착오 ··························································· 61
    19. 위법성조각사유의 전제사실에 대한 착오와 공범 ············································· 64
    20. 강요된 행위 ··········································································································· 71
    21. 실행의 착수시기 ···································································································· 74
    22. 중지미수와 자의성의 판단기준 ··········································································· 76
    23. 공범과 중지미수 ···································································································· 80
    24. 불능미수에 대한 중지미수 ··················································································· 82
    25. 불능미수와 위험성의 판단기준 ··········································································· 84
    26. 예비의 중지 및 예비죄의 종범 ··········································································· 87
    27. 예비죄의 성립요건 ································································································ 90
    28. 필요적 공범과 총칙상의 공범규정의 적용여부 ················································· 93
    29. 간접정범의 성립요건 ···························································································· 95
    30. 정범 배후의 정범이론 ·························································································· 97
    31. 간접정범과 착오 ···································································································· 99
    32. 승계적 공동정범 ·································································································· 101
    33. 공동정범과 공동의 실행행위 ············································································· 105
    34. 공모관계의 이탈과 공모공동정범 ····································································· 107
    35. 상해치사죄의 동시범 ·························································································· 111
    36. 합동범의 공동정범 ······························································································ 113
    37. 교사범과 공범관계로부터의 이탈 ····································································· 118
    38. 미필적 고의와 교사의 착오 ··············································································· 121
    39. 부작위에 의한 종범 ···························································································· 125
    40. 목적과 신분 ········································································································· 128
    41. 진정신분범의 간접정범과 공범 ·········································································· 131
    42. 부진정신분범과 공범 ·························································································· 134
    43. 불구성적 신분과 공범 ························································································ 137
    44. 교통사고 관련범죄의 죄수관계 ········································································· 139
    45. 불가벌적 사후행위 ······························································································ 142
    46. ‘범죄행위에 제공한 물건’의 의미 ····································································· 146
    47. 집행유예와 선고유예의 결격사유 ····································································· 149
    48. 사람의 시기 ········································································································· 152
    49. 상해의 개념 ········································································································· 155
    50. ‘폭행’ 및 ‘위험한 물건 휴대’의 의미 ································································ 157
    51. 유기죄의 보호의무 및 불법영득의사 ································································ 160
    52. 협박죄의 객체 및 기수시기 ··············································································· 165
    53. 강요죄의 고의 ····································································································· 169
    54. 영리목적약취·유인죄와 인질강도죄 ································································ 171
    55. 주거침입죄와 강간죄의 관계 ············································································· 174
    56. 제310조와 진실성에 대한 착오 ········································································· 176
    57. 출판물에 의한 명예훼손죄의 간접정범 ···························································· 180
    58. 업무방해죄의 업무와 공무 ················································································· 184
    59. 업무방해죄와 명예훼손죄의 관계 ····································································· 187
    60. 컴퓨터 업무방해죄 ······························································································ 189
    61. 주거침입죄의 객체와 피해자의 동의 ································································ 191
    62. 주거침입죄의 기수시기 ······················································································ 193
    63. 형법상 재물의 개념 ···························································································· 196
    64. 금제품의 재물성 ·································································································· 200
    65. 형법상 점유의 요건 ···························································································· 203
    66. 유류물·분실물에 대한 점유 ············································································· 205
    67. 사자의 점유 및 사자 명의의 문서위조 ···························································· 208
    68. 사자의 점유와 불법영득의 의사 ······································································· 212
    69. 불법영득의사의 대상 ·························································································· 215
    70. 불법영득의사에서 불법의 의미 ········································································· 220
    71. 절도와 사용절도의 구별 ····················································································· 223
    72. 야간주거침입절도죄에서 ‘야간’의 적용범위 ····················································· 225
    73. 합동절도죄 성립의 시간적 한계 ······································································· 227
    74. 절도와 강도의 구별 ···························································································· 229
    75. 야간주거침입 특수강도죄의 실행의 착수시기 ················································· 232
    76. 준강도죄의 기수와 미수의 판단기준 ································································ 235
    77. 준강도죄의 공동정범 ·························································································· 237
    78. 특수강도의 준강도의 판단기준 ········································································· 241
    79. 강도강간죄의 주체 ······························································································ 243
    80. 잔금사기와 고지의무 ·························································································· 246
    81. 사기죄에서 기망행위의 정도 ············································································· 248
    82. 사기죄와 처분의사 ······························································································ 251
    83. 사자에 대한 소송사기 ························································································ 257
    84. 사기죄와 횡령죄의 관계 ···················································································· 260
    85. 컴퓨터사용사기죄의 객체 ··················································································· 263
    86. 신용카드 관련범죄 ······························································································ 266
    87. 신용카드의 부정발급과 부정사용 ····································································· 269
    88. 강취·갈취한 현금카드에 의한 예금인출 ························································ 272
    89. 권리행사와 공갈죄 ······························································································ 276
    90. 공갈죄와 수뢰죄의 관계 ···················································································· 279
    91. 횡령죄의 주체와 객체 ························································································· 282
    92. 불법원인급여와 횡령죄 ······················································································ 287
    93. 3자간 명의신탁과 횡령죄 ··················································································· 290
    94. 리베이트 수수행위의 형사책임 ········································································· 294
    95. 횡령죄의 기수시기 ······························································································ 296
    96. 예산전용과 불법영득의사 ··················································································· 299
    97. 횡령행위의 상대방의 형사책임 ········································································· 302
    98. 대표권을 남용한 약속어음 발행과 배임죄의 기수시기 ································· 305
    99. 이중매매의 형사책임 ·························································································· 310
    100. 배임수재죄에서 신분의 존재시기 ··································································· 315
    101. 장물의 동일성 ···································································································· 318
    102. 장물취득죄에서 ‘취득’의 의미 ········································································· 322
    103. 이미지 파일의 문서성 ······················································································ 325
    104. 문서와 명의인의 실재성 ·················································································· 329
    105. 문서의 복사행위와 위조 ·················································································· 331
    106. 허위공문서작성죄의 간접정범 ········································································· 334
    107. 허위진단서작성죄와 허위공문서작성죄의 관계 ············································· 337
    108. 공문서부정행사죄에서 ‘부정행사’의 의미 ······················································ 342
    109. 공문서부정행사죄의 객체 ················································································· 346
    110. 편면적 도박 ········································································································ 349
    111. 경기의 도박성 ···································································································· 351
    112. 직무유기죄와 허위공문서작성죄의 관계 ························································ 353
    113. 뇌물과 직무관련성 ···························································································· 356
    114. 뇌물의 몰수와 추징 ·························································································· 359
    115. 공무집행방해죄와 직무집행의 적법성 ···························································· 362
    116. 위계에 의한 공무집행방해죄와 직무유기죄의 관계 ····································· 365
    117. 범인도피죄의 공범 ···························································································· 368
    118. 범인도피죄에서 ‘죄를 범한 자’의 의미 ·························································· 372
    119. 증언거부권의 불고지와 위증죄 ········································································ 375
    120. 위증죄에서 ‘허위’의 판단기준 ········································································· 378
    121. 증거인멸죄의 객체 ···························································································· 380
    122. 자기사건에 관한 증거인멸의 교사 ································································· 383
    123. 공소시효의 완성과 무고죄 ··············································································· 386