제1부 형법총론 제1편 서 론 제2편 범죄론 · pdf file제1부 형법총론 제1편...

102
제1부 형법총론 제1편 서 론 제1장 죄형법정주의······································································································· 5 제2장 형법의 적용범위································································································ 79 제2편 범죄론 제1장 범죄의 의의 및 종류························································································ 103 제2장 행위론 및 행위주체·························································································· 109 제3장 구성요건론······································································································· 127 제1절 부작위범··············································································································· 127 제2절 인과관계 및 객관적 귀속 ······················································································· 139 제3절 구성요건적 고의···································································································· 156 제4절 구성요건적 착오···································································································· 170 제5절 과실범·················································································································· 181 제6절 결과적 가중범······································································································· 207 제4장 위법성론·········································································································· 228 제1절 정당방위··············································································································· 228 제2절 긴급피난··············································································································· 247 제3절 자구행위··············································································································· 250 제4절 피해자의 승낙······································································································· 253 제5절 정당행위··············································································································· 261

Upload: duongdang

Post on 07-Feb-2018

242 views

Category:

Documents


5 download

TRANSCRIPT

  • 1

    1

    1 5

    2 79

    2

    1 103

    2 109

    3 127

    1 127

    2 139

    3 156

    4 170

    5 181

    6 207

    4 228

    1 228

    2 247

    3 250

    4 253

    5 261

  • 5 301

    1 301

    2 313

    3 333

    6 342

    1 342

    2 362

    3 370

    4 377

    7 384

    1 384

    2 389

    3 397

    4 420

    5 428

    6 435

    3

    1 449

    2 457

    3 491

  • 1

    2

    3

    4

    1

  • 1

    1

    2

  • 1 / 1

    1 . ?1.

    .

    .

    , ()

    ,

    .

    ,

    .

    3 1 2 1(

    )

    .

    ,

    .

    () 30

    12

    3 .

    19 4

    , 77

    1

    .

    1.

    5

    1

  • 6 1 / 1

    12 1 ,

    ,

    ,

    ,

    ( 2003. 11. 14, 2003

    3600).

    )

    ) ()

    , )

    ( 2002. 11 .26, 20022998 ).

    ,

    ,

    ,

    12 1 13 1

    ,

    2 1

    ,

    ,

    3 1 2 1

    3

    , 12 1 70 1 ,

    ( 1999. 2. 11, 982816).

    () 17 2 1 (

    ) .

    ,

    ( ) . 17 2

    17 68

    ,

    , 68

  • 71

    1

    17 , 17 2

    , 17

    ,

    68

    ( 1989. 8. 8, 881161).

    30

    , 12 30

    3 12 30

    109 ,

    , 12

    ( 1998. 10. 15, 98

    1759).

    ' '

    , ''

    ,

    , (

    2000. 7. 20, 9915).

    2 () . , ?

    . () (49 7) () (69 1)

    () 49

    1

    (8 1)

    . () 13

    . 3 5

    . 90 180

    ,

  • 8 1 / 1

    . 48

    ,

    54 1

    . 6 1 15 (PC)

    . 463

    .

    .

    8 1

    , , , , , , , ,

    , , , , , , , ,

    , , , , , , , ,

    , , , , , , , ,

    , , , , , , , ,

    , , , , , , , ,

    , , , , , , , ,

    , , , , , , , ,

    2.

    . () 49 7 () 69 1

    () 49 1

    (8 1),

    ( 2)

    ( 2007. 3. 29, 20068189).

    2.

  • 91

    1

    . 13

    ( 2006. 1. 13, 20057474).

    . 1

    ,

    ,

    ,

    , ( 1996. 2. 29, 9413).

    . 90

    ,

    ( 2005. 1. 13, 20047360).

    . 48

    ,

    .

    54 1 48

    ,

    12 1 13 1

    75 ( 2000. 1. 27, 989).

    . (

    2007. 2. 22, 20069234).

    . 463 " "

    ()

    '' ,

    ( 1998. 3. 26, 9620).

    .

    ""

    . ,

    ,

    , ,

    , ( 2001. 1. 18, 99112).

  • 10 1 / 1

    .

    ,

    ( )

    . 10 1

    ,

    , 21

    .

    ( 2000. 6. 29. 9916).

    3 O X . ( ) 9

    75

    12 1, 13 1 .( )

    3 [ 2] 56 1

    ()

    .( )

    79 4 26 (

    )

    .( )

    () 56 3

    8

    8

    .( )

    12 4 [

    2] 140

    .( )

    26 30

  • 111

    1

    ,

    ,

    .( )

    11 2

    .( )

    ()( )

    .( )

    6 2()

    .( )

    3.

    1991. 7. 8, 914.

    3 [ 2] 56 1

    "

    () " ,

    "() "

    ,

    , ()

    ,

    , (

    2005. 1. 28, 20026931).

    1997. 9. 25, 9616.

    1992. 12. 8, 92407.

    86

    1 3 . ,

    . 12 4

    [ 2] 140

    3.

    ,

    ,

    ,

    ,

    ,

    ,

    ,

    ,

  • 12 1 / 1

    ,

    86 ( 2004. 3. 25, 20038247).

    2

    ( 2004. 1.

    27, 20037026).

    2001. 7. 27, 20012950.

    , 6 1

    11 6 1

    ( 2002. 11. 26, 20022998).

    ,

    (

    ) 35 8, 29 1 7, 32 1 5

    , 32 3 1 5

    32 1 5, 3

    35 8, 29 1 7

    .

    ( 2006. 4. 27, 20041078).

    1998. 8. 27, 9785.

    4 ?. ()

    , .

    . ,

    ,

    .

    .

  • 131

    1

    .

    .

    .

    . 46 3 69

    .

    .

    88 1

    .

    , , , , , , , , ,

    , , , , , , ,

    , , ,

    4.

    . () 12 1 ,

    13 1 ,

    ( 1987. 2. 24, 86286).

    ,

    ( 1997. 6. 13, 97703).

    . ()

    ,

    ,

    ,

    4.

  • 14 1 / 1

    (

    1999. 7. 22, 9776 ).

    . () ,

    ( 1997. 9. 17, 973349).

    . ()

    ,

    .

    ,

    ,

    , ,

    ,

    ( 2006. 5. 11, 2006920).

    . () 46 3 69

    ,

    ,

    (

    2006. 10. 27, 20033).

    . () (International Covenant on Civil and Political Rights)

    , 18 1

    . ,

    ,

    ,

    88 1 1 18

    3 .

    ,

    ,

    . ,

    88 1

    ( 2007. 12. 27, 20077941).

  • 151

    1

    5 . ?5.

    .

    ,

    .

    2004. 1. 20. 7077 , 37

    ,

    .

    518 2 1 1979 12

    12 1980 5 18

    2 5

    18 249

    .

    .

    1996. 8. ( 5)

    1997. 12. 28. 2002. 10. 9. .

    ( 1997. 1. 1.)

    ( 253 3)

    . 2002. 10. 28.

    .

    .

    ,

    5.

  • 16 1 / 1

    ,

    . ,

    100 200

    ( 2008. 7. 24, 20084).

    , ,

    12 1 13 1

    (

    1996. 2. 16, 962,967,9613).

    2004. 1. 20. 7077 , 37

    ,

    , 37

    1 2

    ( 2004. 1. 27, 20013178; 2004. 2. 13, 20037554).

    518 2 1 1979 12 12 1980

    5 18 2

    , 518

    249

    ( 1997. 4. 17, 963378).

    ( 1999. 4. 13, 9976),

    ( 1992. 2. 28, 91

    2935). 1 2 8

    12 13 (

    1993. 10. 8, 931951).

    (1995. 12. 29. 5054 ) 2

    , (1997. 1. 1.)

    .

    253 3 (

    1997. 12. 28. 2002. 10. 9. ) ( 2003.

    11. 27, 20034327).

    .

  • 171

    1

    6 2006 2 15 .

    2006 4 15 .

    2006 4 7 "

    , "

    . A

    . - -

    ?6.

    . .

    . .

    . .

    A.

    .

    B.

    .

    C. ,

    .

    D. .

    E. .

    F. .

    . .

    . .

    .

    , .

    6.

  • 18 1 / 1

    .

    .

    - ABE - - C -

    - D - - D F -

    - D - - F -

    - F -

    , ,

    . ABE , C , DF

    .

    . , 57

    ,

    ( 1999. 7. 15,

    952870 ). D . - F'

    .

    ( 1983. 10. 25, 831566),

    .

    ,

    130 2

    ,

    , ( 2006. 4. 7,

    20059858).

    .

    .

    .

    - F - ' .

  • 191

    1

    7 1 ( O, X) , 2

    ?

    1

    . ,

    , .

    .

    ,

    .

    .

    .

    .

    ,

    .

    2

    A. 52 5

    B.

    C. 40 2 89 1

    D.

    270 3

    E. ()

    F. '

  • 20 1 / 1

    '

    G. () 96 1 1 '

    '

    H. 2 1

    , 30 1

    1 - X, X, X,