“법률 단위의 암기를 넘어, 특별형법의 핵심 맥락을 장악하다”

 

오늘날 생성형 AI와 고도화된 법률 검색 엔진의 발전은 법학 교육과 실무의 지형

을 근본적으로 바꾸어 놓았습니다. 이제 구체적인 사실관계에 부합하는 판례를 검색

하고 단편적인 법조문을 확인하는 일은 더 이상 인간의 독점적 영역이 아닙니다. 그

러한 지식은 손가락 끝에서 몇 초 만에 쏟아져 나오는 시대가 되었습니다. 그러나

역설적이게도 기술이 발전할수록 수험과 실무 현장의 혼란은 그 어느 때보다 깊어

지고 있습니다. “무엇이 문제인지를 모르면, 무엇을 찾아야 할지도 모르기 때문”입

니다. 복잡다단한 사건을 마주했을 때, 이것이 특별법상 가중처벌 대상인지 혹은 어

떤 절차적 특례가 작동하는 것인지 등 사안의 ‘핵심’을 포착해 내지 못한다면, 아무

리 뛰어난 AI 비서가 곁에 있어도 무용지물에 불과합니다.

 

본서는 조문 나열식의 해설서도, 판례 요약서도 아닙니다. 사실관계를 마주했을

때 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 관련범

죄], [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 대응능

력을 기르도록 했습니다. 예컨대 ‘교통’ 분야에서는 도로교통법, 교통사고처리법, 특

정범죄가중법을, ‘성폭력’ 분야에서는 형법, 성폭력처벌법, 청소년성보호법을 한눈에 조망하도록 했습니다. 이를 통해 독자는 각 범죄의 구성요건, 가중처벌 여부, 소추요

건의 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 해

결하기 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 잡

는 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 기

대합니다. 끝으로 이 책이 세상에 나올 수 있도록 도움을 아끼지 않은 박영사 관계

자분들께 깊은 감사를 전합니다.

 

부산대학교 법학전문대학원 연구실에서

저자 씀

[목 차]

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