“약술형 형사소송법”에 관하여…

본서는 “경찰간부 채용시험”과 “경정 승진시험”에서의 형사소송법 약술형 문제를 효율적으로 대비하기 위하여 만들어진 교재이다.

1. 최신의 학설·판례의 반영

각 문제마다 최근 학계의 연구성과를 반영하여 참신한 내용의 답안을 작성할 수 있도록 하였고, 필요한 부분마다 최신 판례를 보충함으로써 고득점 답안이 될 수 있도록 하였다. 필요한 경우에는 논문의 내용도 보충함으로써 깊이 있는 답안이 되도록 하였다.

2. 출제가능한 중요문제의 추가

본서에서는 약 25문제 정도로 중요문제를 추가하였다. 새로운 문제는 사법시험·행정고시 등 국가고시의 출제빈도수와 학계의 논문의 빈도수 등을 고려하여 신중하게 선정하였으므로 보다 완벽한 시험준비가 될 수 있을 것이다.

3. 답안을 고려한 최적의 분량

“구슬이 서 말이라도 꿰어야 보배”라는 속담이 있듯이, 답안지에 표현할 수 없는 것들은 알고 있을지라도 채점자에게 전달할 방법이 없다. 이에 본서에서는 모든 문제들의 내용을 2페이지로 압축 정리하여 실전에 맞는 효율적인 학습을 할 수 있도록 하였다.

4. 체계적인 목차구성과 Keyword 표시

효율적인 암기를 위해서 목차구성을 보다 체계적으로 하였고, 내용도 균형 있게 서술하였다. 또한 목차의 서체, 크기 등도 세심하게 신경을 써서 눈에 잘 들어오도록 하였으며, Keyword에는 언더라인을 하여 효율적인 최종정리를 할 수 있도록 하였다.

5. 좌·우 한 눈에 들어오는 편집

약술형 문제는 결국 “암기”에 의하여 승패가 결정된다. 이에 본서에서는 책을 펼쳤을때 좌·우 페이지에 한 문제를 담도록 편집하여 문제의 전체적 구성이 한 눈에 들어오도록 함으로써 암기에 시각적 효과를 높일 수 있도록 하였다.

좋은 교재를 만들기 위하여 본서의 편집과 내용 입력을 저자가 직접 하면서 온 정성을 기울였다. 본서의 활용으로 독자 여러분의 꿈이 이루어지기를 간절히 기원하면서…

2018. 1. 9.

법학박사 신 호 진

- 본서의 효율적 활용방법 -

제1단계 : 이해의 증진

약술형 문제집으로 공부할 경우에 다소 문제가 되는 것은 형사소송법 전체에 대한 흐름을 놓칠 수 있다는 점과, 압축된 내용으로 인하여 정확한 이해를 하는 데 어려움이 있다는 점이다. 따라서 본서를 기본으로 공부를 할 때에는 반드시 “기본서”를 옆에 두고 의문이 들 때마다 해당 부분을 찾아보는 것이 중요하다. 암기가 중요하기는 하지만, 이해가 전제되지 않고서는 암기도 어렵기 때문이다. 기본서로는 여러 교수들의 저서나 본인의 ‘형사소송법요론’을 추천한다. 이해를 보다 빨리 하기 위해서는 강의를 듣는 것도 좋은 방법인데, 저자는 2월 경에 본서에 대한 강의를 계획하고 있다.

제2단계 : 암기를 위한 준비

어느 정도 이해가 되고, 형사소송법의 체계와 흐름을 파악하였다면 이제는 암기를 위한 준비작업을 하여야 한다. 그래서 본서를 읽을 경우에는 첫 번째로, 목차를 먼저 읽으면서 내용을 떠올리려고 노력하여야 한다. 두 번째로, 본문 중에서 답안에 반드시 서술해야 할 중요 Keyword를 찾아서 표시해야 한다. 왜냐하면 암기는 문장을 통째로 외우는 것이 아니라 “목차”와 “Keyword”를 중심으로 내용을 기억하는 것이기 때문이다.

본서에는 기본적으로 Keyword에 해당되는 부분에 대해서 점선 표시가 되어 있기는 하지만, 이것이 다는 아니므로 나름대로 중요한 부분에 대해서는 추가적인 표시를 하여야 한다.

제3단계 : 철저한 암기

제1단계에서 “이해”를 하였고, 제2단계에서 “정리”를 하였다면, 마지막으로는 철저한 “암기”를 해야 한다. 암기의 가장 기본적인 방법은 “반복”이다. 그런데 반복을 위해서 무턱대고 회독수만 올리는 것보다는 다음과 같은 방법을 사용하는 것이 좋다. 즉, 어떤 문제를 정독했다면 그냥 다음 문제로 넘어가서는 안 되고, 방금 읽은 문제의 목차를 연습장에 써 보거나, 책을 덮고 방금 읽은 문제를 말로 해 보는 것이다. 이 때에는 목차와 Keyword를 중심으로 내용을 연결지을 수 있어야 한다. 결론적으로 시험 직전에 “목차”와 “Keyword”만을 빠르게 훑어보아도 내용이 떠오를 수 있을 정도이면 암기로서 충분하다고 할 수 있다.

제 1 편 형사소송법의 일반이론 

1. 실체적 진실주의 ································································································ 2 

2. 적정절차의 원칙 ································································································ 4 

3. 재판의 공정성 보장제도 ····················································································· 6 

4. 신속한 재판의 원칙 ··························································································· 8 

 

제 2 편 수사와 공소 

제1절 수사의 기본개념 

5. 검사와 사법경찰관리의 관계 ·············································································· 12 

6. 사법경찰관리의 소송법상 지위와 권한 ································································ 14 

7. 수사상 피의자의 지위와 권리 ············································································ 16 

8. 범죄인지 ········································································································· 18 

9. 수사의 조건 ···································································································· 20 

10. 친고죄의 고소 전 수사 ··················································································· 22 

11. 함정수사 ······································································································· 24 

제2절 수사의 개시 

12. 불심검문 ······································································································· 26 

13. 불심검문시의 소지품검사 ················································································ 28 

14. 고소의 유효요건 ···························································································· 30 

15. 고소의 객관적 불가분의 원칙 ·········································································· 32 

16. 고소의 주관적 불가분의 원칙 ·········································································· 34 

17. 고소의 취소 ·································································································· 36 

18. 고소취소의 시기 ···························································································· 38 

19. 고소권의 포기 ······························································································· 40 

20. 고소와 고발의 이동 ························································································ 42 

제3절 수사의 방법 

21. 임의수사의 한계 ···························································································· 44 

22. 수사상의 임의동행 ························································································· 46 

23. 피의자신문절차의 적정성 보장제도 ··································································· 48 

24. 변호인의 피의자신문참여권 ············································································· 50 

25. 피의자와 참고인 진술의 영상녹화제도 ······························································ 52 

26. 영장주의 ······································································································· 54 

27. 수사에 대한 사법적 통제 ··············································································· 56 

28. 위법수사의 구제제도 ······················································································ 58 

29. 인신구속과 인권보장제도 ··············································································· 60 

제4절 대인적 강제수사 

30. 체포영장에 의한 체포 ····················································································· 62 

31. 긴급체포 ······································································································· 64 

32. 현행범인체포 ································································································· 66 

33. 피의자 구속의 요건과 절차 ············································································· 68 

34. 구속영장실질심사제도 ····················································································· 70 

35. 구속영장의 성질과 효력 ·················································································· 72 

36. 이중구속 ······································································································· 74 

37. 별건구속 ······································································································· 76 

38. 수사기관의 피의자 구속기간 ············································································ 78 

39. 피의자·피고인의 접견교통권 ············································································ 80 

40. 체포·구속된 피의자의 석방제도 ········································································ 82 

41. 체포·구속적부심사제도 ···················································································· 84 

42. 보증금납입조건부 피의자석방제도 ···································································· 86 

제5절 대물적 강제수사 

43. 수사상 압수·수색의 대상과 요건 ······································································ 88 

44. 수사상 압수·수색의 절차 ················································································· 90 

45. 수사상 압수물의 환부 ····················································································· 92 

46. 수사상의 검증 ······························································································· 94 

47. 신체검사 ······································································································· 96 

48. 강제채혈 ······································································································· 98 

49. 압수·수색·검증과 영장주의의 예외 ·································································· 100 

50. 체포현장에서의 압수·수색·검증 ······································································· 102 

51. 긴급체포 후의 압수·수색·검증 ········································································ 104 

52. 수사상의 감정유치 ························································································ 106 

53. 전기통신의 감청 ··························································································· 108 

제6절 수사상의 증거보전 

54. 수사상의 증거보전 ························································································ 110 

55. 수사상 참고인에 대한 증인신문 ······································································ 112 

56. 증거보전과 참고인에 대한 증인신문의 이동(異同) ············································· 114 

제7절 수사의 종결 

57. 불기소처분 ·································································································· 116 

58. 검사의 불기소처분에 대한 불복방법 ································································ 118 

59. 공소제기 후의 수사 ······················································································ 120 

제8절 공소의 제기 

60. 공소권남용론 ······························································································· 122 

61. 기소독점주의 ······························································································· 124 

62. 기소편의주의 ······························································································· 126 

63. 공소의 취소 ································································································· 128 

64. 재정신청제도 ······························································································· 130 

65. 검사의 공소권행사의 적정성 보장제도 ···························································· 132 

66. 공소장일본주의 ···························································································· 134 

67. 공소제기의 효과 ··························································································· 136 

68. 불고불리의 원칙 ··························································································· 138 

69. 일죄의 일부에 대한 공소제기 ········································································· 140 

70. 공소시효의 기간 ··························································································· 142 

71. 공소시효의 정지 ··························································································· 144 

 

제 3 편 공 판 

제1절 소송주체 

72. 제17조 제7호의 제척사유(전심재판 등 관여) ··················································· 148 

73. 법관에 대한 기피 ························································································· 150 

74. 검사의 소송법상 지위 ··················································································· 152 

75. 피고인의 특정 ······························································································ 154 

76. 성명모용의 처리방법 ····················································································· 156 

77. 위장출석의 처리방법 ····················································································· 158 

78. 피고인의 소송법상 지위 ················································································ 160 

79. 피의자와 피고인의 소송법상 지위와 권리의 비교 ············································· 162 

80. 무죄추정의 원칙 ··························································································· 164 

81. 진술거부권 ·································································································· 166 

82. 진술거부권의 효과 ························································································ 168 

83. 진술거부권과 증언거부권의 비교 ···································································· 170 

84. 국선변호인제도 ···························································································· 172 

85. 변호인의 소송법상 지위와 권한 ······································································ 174 

86. 변호인의 접견교통권 ····················································································· 176 

87. 변호인의 증거서류 열람·등사권 ······································································ 178 

제2절 소송행위와 소송조건 

88. 무효인 소송행위의 치유 ················································································ 180 

89. 고소의 추완 ································································································· 182 

제3절 공판절차 

90. 공소사실의 동일성 ························································································ 184 

91. 공소장변경의 필요성 ····················································································· 186 

92. 법원의 공소장변경요구 ·················································································· 188 

93. 증거개시제도 ······························································································· 190 

94. 당사자의 형사기록 열람·등사권 ······································································ 192 

95. 당사자의 공판기일 출석 ················································································ 194 

96. 증인과 참고인의 비교 ··················································································· 196 

97. 증인과 감정인의 비교 ··················································································· 198 

98. 증인적격 ····································································································· 200 

99. 증인의 의무와 권리 ······················································································ 202 

100. 증언거부권 ································································································ 204 

101. 형사절차상 피해자의 지위 ··········································································· 206 

102. 피고인 구속의 요건과 절차 ·········································································· 208 

103. 법원의 피고인 구속기간 ············································································· 210 

104. 피고인 보석 ······························································································ 212 

105. 보석의 의의와 종류 ···················································································· 214 

106. 간이공판절차 ····························································································· 216 

107. 국민참여재판의 공판절차 ············································································· 218 

제4절 증 거 

108. 증거의 의의와 종류 ···················································································· 220 

109. 증거의 수집 ······························································································· 222 

110. 증거재판주의 ····························································································· 224 

111. 엄격한 증명의 대상 ···················································································· 226 

112. 거증책임 ··································································································· 228 

113. 거증책임의 전환 ························································································· 230 

114. 자유심증주의 ····························································································· 232 

115. 자유심증주의의 예외 ··················································································· 234 

116. 위법수집증거배제법칙 ················································································· 236 

117. 사인이 위법하게 수집한 증거의 증거능력 ······················································ 238 

118. 독수의 과실이론 ························································································· 240 

119. 자백의 의의와 효과 ···················································································· 242 

120. 자백배제법칙 ····························································································· 244 

121. 약속에 의한 자백 ······················································································· 246 

122. 전문법칙 ··································································································· 248 

123. 전문법칙의 예외 ························································································· 250 

124. 법원·법관 면전조서의 증거능력 ···································································· 252 

125. 검사 작성 피의자신문조서의 증거능력 ··························································· 254 

126. 경찰 작성 피의자신문조서의 증거능력 ··························································· 256 

127. 공범에 대한 피의자신문조서의 증거능력 ························································ 258 

128. 진술조서의 증거능력 ··················································································· 260 

129. 진술서의 증거능력 ······················································································ 262 

130. 진술기재서의 증거능력 ················································································ 264 

131. 수사기관의 검증조서의 증거능력 ·································································· 266 

132. 실황조사서의 증거능력 ················································································ 268 

133. 감정서의 증거능력 ······················································································ 270 

134. 형사소송법 제314조 ··················································································· 272 

135. 당연히 증거능력이 있는 서류 ······································································· 274 

136. 전문진술의 증거능력 ··················································································· 276 

137. 조사자 증언제도 ························································································· 278 

138. 재전문증거의 증거능력 ················································································ 280 

139. 사진의 증거능력 ························································································· 282 

140. 녹음테이프의 증거능력 ················································································ 284 

141. 수사기관의 영상녹화물의 증거능력 ······························································· 286 

142. 정보저장매체의 증거능력 ············································································ 288 

143. 거짓말탐지기 검사결과의 증거능력 ······························································· 290 

144. 진술의 임의성 ···························································································· 292 

145. 당사자의 동의와 증거능력 ··········································································· 294 

146. 증거동의의 성질과 대상 ·············································································· 296 

147. 증거동의의 효과 ························································································· 298 

148. 탄핵증거 ··································································································· 300 

149. 자백보강법칙 ····························································································· 302 

150. 공범자의 자백 ···························································································· 304 

151. 공판조서의 증명력 ······················································································ 306 

제5절 재 판 

152. 기판력 ······································································································ 308 

 

제 4 편 상소 · 특별절차 

제1절 상 소 

153. 상소의 이익 ······························································································· 312 

154. 불이익변경금지의 원칙 ················································································ 314 

155. 준항고 ······································································································ 316 

제2절 비상구제절차 

156. 신증거에 의한 재심사유(제420조 제5호) ······················································· 318 

157. 재심과 비상상고의 차이 ·············································································· 320 

제3절 특별형사절차 

158. 약식절차 ··································································································· 322 

159. 즉결심판절차 ····························································································· 324 

160. 약식절차와 즉결심판절차의 차이 ·································································· 326