2022년 1년간 형법 최신판례정리(21.12.01~22.11.15) 문형사/신호진

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형 법 총 론

[1] 죄형법정주의 ·································································································· 3
1. 위헌결정의 소급효 (大判 2021도14878) ······························································· 3
2. 위헌결정의 소급효 여부 (大判 2020도68) ···························································· 6
3. 유추해석금지의 원칙 (大判 2021도10981/ 大判 2018도18872) ······························ 8
[2] 형법의 시간적 적용범위 ·················································································· 10
4. 형법 제1조 제2항과 동기설 (大判 2017도15175) ················································ 10
[3] 행위의 주체와 객체 ························································································ 11
5. 양벌규정에 의한 수범자 영역의 확장 (大判 2020도1942) ····································· 11
[4] 부작위범 ······································································································· 13
6. 진정부작위범의 공동정범의 성립요건 (大判 2021도11110) ··································· 13
[5] 정당행위 ······································································································· 14
7. 정당행위 (大判 2017도10634) ·········································································· 14
8. 사회상규에 위배되지 아니하는 행위 (大判 2021도9680) ······································ 16
[6] 위법성의 인식과 금지착오 ··············································································· 18
9. 법률의 착오와 정당한 이유 (大判 2021도10903) ················································· 18
[7] 정범·공범의 일반이론 ····················································································· 20
10. 대향범과 방조범의 성립여부 (大判 2020도7866) ··············································· 20
[8] 수 죄 ··········································································································· 22
11. 형법 제39조 제1항의 적용요건 (大判 2021도8719) ··········································· 22
[9] 형벌의 종류 ·································································································· 23
12. 형법상 몰수의 대상인 ‘물건’의 의미 (大判 2021도7168) ···································· 23
[10] 누 범 ········································································································· 24
13. 누범기간의 기산점 (大判 2020도8728) ····························································· 24
14. 두 개의 징역형 중 하나의 형 집행을 마친 후 죄를 범한 경우 (大判 2021도8764) ·· 25
15. 특정범죄가중법 제5조의4 제5항에서 ‘징역형을 받은 경우’의 의미 (大判 2020도13705) ·························································································································· 26

형 법 각 론

[1] 상해와 폭행의 죄 ··························································································· 28
1. 자동차 운전자 폭행 등 죄에서 ‘자동차’의 의미 (大判 2022도1013) ······················· 28
[2] 강요의 죄 ····································································································· 29
2. 강요죄의 폭행의 의미 (大判 2018도1346) ·························································· 29
[3] 강간과 추행의 죄 ··························································································· 30
3. 강제추행죄에서 추행의 의미 (大判 2021도7538) ················································· 30
4. 동성인 군인 사이의 추행행위의 가벌성 (大判 2019도3047, 전원합의체 판결) ········· 32
5. 촬영물의 ‘공공연한 전시’의 의미 (大判 2022도1683) ··········································· 37
6. 아동에 대한 성적 학대행위인가의 판단기준 (大判 2020도12419) ·························· 38
[4] 명예에 관한 죄 ······························································································ 40
7. 명예훼손죄와 모욕죄에서의 공연성과 고의의 내용 (大判 2020도8336) ··················· 40
8. 명예훼손죄에서 ‘사실 적시’의 의미와 판단기준 (大判 2020도15642) ····················· 42
9. 명예훼손의 고의와 사실의 적시 (大判 2021도17744) ··········································· 44
10. ‘비방의 목적’과 ‘공공의 이익을 위한 것’의 관계 (大判 2022도4171) ···················· 45
11. 모욕죄에서 ‘모욕’의 의미 (大判 2019도7370) ··················································· 47
12. 모욕과 사회상규에 위배되지 않는 행위 (大判 2020도16897) ······························ 49
[5] 신용·업무와 경매에 관한 죄 ············································································ 51
13. 업무방해죄에서 위력의 의미 및 기수시기 (大判 2016도3986) ····························· 51
14. 주거침입죄에서 ‘침입’의 의미와 업무방해죄에서 ‘위력’의 의미 (大判 2021도9055) · 53
15. 컴퓨터등장애업무방해죄의 성립여부 등 (大判 2021도1533) ································ 55
[6] 주거침입의 죄 ······························································································· 57
16. 주거침입죄에서 ‘침입’의 의미 (大判 2021도15507) ············································ 57
17. 일반적 출입이 허용된 장소에 불법행위를 목적으로 들어간 경우 (大判 2017도18272, 전원합의체 판결) ································································································· 59
18. 주거침입죄에서 ‘침입’의 의미 (大判 2022도3801) ············································· 62
[7] 사기의 죄 ····································································································· 65
19. 행정법규 등의 위반과 기망행위 (大判 2016도16343) ········································· 65
20. 소송사기의 성립요건 (大判 2022도1227) ·························································· 67
[8] 횡령의 죄 ····································································································· 69
21. 횡령죄에서 위탁관계의 의미 (大判 2017도21286) ············································· 69
22. 채권양도인의 지위 (大判 2017도3829, 전원합의체 판결) ···································· 71
[9] 배임의 죄 ····································································································· 75
23. 착오로 이체된 가상자산과 배임죄의 주체 (大判 2020도9789) ····························· 75
24. 자료 무단반출시 업무상배임죄의 성립을 위한 자료의 성격 (大判 2018도4794) ····· 77
25. 배임죄에서 ‘재산상 이익 취득’과 ‘재산상 손해 발생’의 관계 (大判 2016도3452) ··· 79
[10] 공안을 해하는 죄 ························································································· 81
26. 범죄단체 구성·활동죄와 개별범죄의 관계 (大判 2022도6993) ···&middo