OX로 정리하는 형법요론[총론]
문형사/ 신호진 저/ 372면 /19,000원
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‘OX로 정리하는 형법요론’에 대해서
“OX로 정리하는 형법요론”은 오랫동안 여러 국가고시의 형법 기본서로서의 역할을 해온 편저자의 “형법요론”을 단기간에 효율적으로 정리할 수 있도록 만들어진 교재이다. 본 교재는 다른 시험에 비하여 수준이 높은 변호사시험, 검찰승진·전직시험, 검찰채용시험 등에서 최종정리용 교재로 이용될 수 있을 것이다. 이하에서는 “OX로 정리하는 형법요론”의 내용과 이용방법에 대해서 설명하고자 한다.
1. 형법이론을 효율적으로 정리하는 방법
형법을 처음 공부하는 경우에는 일단 기본강의를 수강하면서 기본서를 빠짐없이 정독해야 한다. 이 때에는 출제경향이라는 것을 생각할 필요 없이 오직 형법이 어떤 과목인지 그 내용을 철저하게 “이해”하는 데 중점을 두고 공부를 해야 한다. 그러나 어느 정도 공부가 된 다음에는 출제경향을 고려해서 보다 “중요한 부분”에 집중을 할 필요가 있다. 여기서 방대한 형법이론 중에서 어떤 부분이 출제가능성이 높은 중요부분인지가 문제되는데, 이에 대한 가장 정확한 답은 “기출문제”에서 찾을 수 있다. 본서는 2000년 이후의 사법시험 기출문제, 2012년 이후의 변호사시험 기출문제와 법전협 모의고사문제, 그리고 검찰관련시험문제를 기초로 하여 여기서 출제된 이론문제를 지문별로 분해하여 형법요론의 목차순서대로 재배열을 하였다. 이 정도의 범위에서 출제되었던 이론이라면 앞으로도 출제될 가능성이 매우 높고, 반대로 이 정도의 범위에서 출제되지 않은 이론이라면 앞으로도 출제될 가능성은 매우 낮을 것이다 . 그러므로 기본강의 수강과 기본서 정독을 통해서 형법 전반에 대해서 이해를 하였다면, 그 다음부터는 정말로 출제 가능성이 높은 중요부분에 집중하는 것이 필요한데, 본서에 수록된 내용들이 바로 집중해야 할 중요부분이 된다. 본서는 비록 OX문제집의 형태를 취했지만, 각 지문들은 형법요론의 체계적 순서에 따라서 질서정연하게 배열되어 있기 때문에 실은 형법요론의 내용 중에서 정말 출제가능성이 높은 중요부분을 정리해 놓은 SUB-NOTE라고도 할 수 있다.
2. 형법판례를 효율적으로 정리하는 방법
최근에는 어떤 시험이든지 판례의 비중이 매우 높은데, 방대한 분량의 판례를 어떻게 효율적으로 정리할 것인지가 문제된다. 본서는 이에 대한 대책도 역시 “기출문제”에서 찾았다. 그래서 최근 5년간의 사법시험과 변호사시험 및 법전협 모의고사에서 출제되었던 판례와 경찰 등 다른 국가고시 최근 3년간의 기출문제에서 출제되었던 판례를 빠짐없이 골라내어 역시 형법요론의 체계적 순서에 따라서 재배열을 하였다. 이론과 달리 판례는 최근 5년간의 기출판례로 그 범위를 좁힌 이유는 너무 범위를 넓힐 경우에는 출제가능성이 낮은 오래된 판례들이 많이 반영될 위험성이 있기 때문이다. 어쨌든 이 정도의 범위에서 출제되었던 판례는 앞으로도 출제가능성이 클 것이고, 반대로 이 정도의 범위에서 출제되지 않았던 판례는 앞으로도 출제가능성이 낮을 것이다.
그런데 기출판례를 중시할 경우에는 간과되기 쉬운 사각지대가 있음을 주의할 필요가 있다. 그것은 바로 “최신판례”들이다. 최신판례일수록 출제가능성이 매우 높은데, 이러한 최신판례들은 나온 지 얼마 안 되어서 아직 문제로 출제될 기회가 별로 없었기 때문에 기출문제에 충분히 반영되어 있지 않다. 이에 본서에서는 “기본서 정리” 다음에 “최신 3년간의 판례”를 별도로 정리하여 최신판례의 높은 출제가능성에 완벽하게 대비 할 수 있도록 하였다. 최신판례는 본서에 수록될 수 없는 시험일 직전까지의 것도 공부해야 하는데, 편저자는 7월 경 2016년 1월부터 6월까지의 최신판례를 정리한 자료와 그에 대한 해설강의를 계획하고 있고, 그 이후부터의 판례도 지속적으로 업데이트를 할 예정이니 편저자의 홈페이지를 참고해서 중요한 최신판례에 대한 정보를 놓치지 않았으면 한다.
3. 중요부분에 집중하는 것이 고득점의 비결
시험공부를 할 때 “빠짐없이” 공부하는 것은 당연히 필요하며, 특히 초보자의 경우에는 전체적인 내용의 이해를 위해서도 이 과정은 필수적인 것이다. 그러나 어느 정도 공부가 된 후 시험이 가까운 시점에서는 빠짐없이 공부하는 것보다는 “중요한 부분에 집중”하는 것이 훨씬 더 효율적이다. 편저자의 “형법요론”과 “기본강의”가 전자를 위한 것이라면, 본 “OX로 정리하는 형법요론”과 이에 대한 “강의”는 후자에 중점을 둔 것이다. 본서를 읽을 때에는 항상 형법요론을 옆에 두고 본서의 해설만으로는 이해가 안되거나 좀 더 기억을 되살릴 부분이 있을 경우에는 항상 형법요론을 펼쳐서 해당 부분을 발췌해서 읽어야 한다 . 이렇게 본서에 담긴 지문 하나하나를 철저하게 소화하고, 다시 수차례 반복한다면 도리어 형법요론에 대한 이해도도 더욱 높아질 것이고, 의외의 문제에 대한 대처능력도 크게 향상될 것이다. (※ 지문 뒤의 ★표는 최근 5년간에 출제된 회수를 의미한다. 중요도 판단에 기준이 될 것이다).
본서의 출간을 위해서 작년부터 많은 시간과 노력을 들였는데, 본서의 특징과 취지를 잘 이해하고, 효율적인 활용을 통해서 합격의 영광을 누리기를 간절히 기원한다.
2016. 5. 22.
신 호진
< 목 차 >
1. 형법의 의의·성격·기능 ······················································································ 3
2. 죄형법정주의 ··································································································· 5
3. 형법이론 ········································································································ 27
4. 형법의 시간적 적용범위 ··················································································· 29
5. 형법의 장소적 적용범위 ··················································································· 39
6. 형법의 인적 적용범위 ····················································································· 47
7. 범죄의 의의와 종류 ························································································ 49
8. 행위론 ·········································································································· 55
9. 범죄체계론 ···································································································· 57
10. 행위의 주체와 객체 ······················································································ 59
11. 구성요건의 일반이론 ····················································································· 65
12. 결과반가치와 행위반가치 ··············································································· 68
13. 부작위범 ······································································································ 70
14. 인과관계와 객관적 귀속 ················································································· 82
15. 구성요건적 고의 ··························································································· 91
16. 구성요건적 착오 ··························································································· 98
17. 과실범 ······································································································· 108
18. 결과적 가중범 ····························································································· 120
19. 위법성의 일반이론 ······················································································· 131
20. 정당방위 ···································································································· 137
21. 긴급피난 ···································································································· 148
22. 자구행위 ···································································································· 157
23. 피해자의 승낙 ····························································································· 161
24. 정당행위 ···································································································· 169
25. 책임의 일반이론 ·························································································· 180
26. 책임능력 ···································································································· 185
27. 위법성의 인식과 금지착오 ············································································ 198
28. 기대가능성 ································································································· 216
29. 미수범의 일반이론 ······················································································· 222
30. 장애미수 ···································································································· 224
31. 중지미수 ···································································································· 230
32. 불능미수 ···································································································· 242
33. 예비죄 ······································································································· 250
34. 정범·공범의 일반이론 ··················································································· 255
35. 간접정범 ···································································································· 265
36. 공동정범 ···································································································· 271
37. 교사범 ······································································································· 286
38. 종 범 ········································································································· 296
39. 공범과 신분 ································································································ 304
40. 죄수의 일반이론 ·························································································· 312
41. 일 죄 ········································································································· 315
42. 수 죄 ········································································································· 327
43. 형벌의 종류 ································································································ 338
44. 형의 양정 ··································································································· 345
45. 누 범 ········································································································· 353
46. 집행유예·선고유예·가석방 ·············································································· 357
47. 형의 시효·소멸·기간 ···················································································· 367
48. 보안처분 ···································································································· 370
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