최근 경찰승진시험의 최고의 화두는 교수출제이다. 2021년 이후 전격 시행된 교수출제로 인하여 주관식 형사소송법 시험은 시험의 당락을 결정하는 가장 중요한 과목으로 자리매김하게 되었다.
특히, 저명교수진의 출제로 인하여, 2021년 시험부터는, 모든 국가고시에 앞서 최신판례에 관한 문제가 가장 먼저 출제되는 등 경찰승진시험은 주관식 국가고시 가운데 최고수준의 시험으로 위상을 정립하게 되었다. 2022년 시험 역시, 최신판례는 전격 반영되어 출제되었다.
최근의 사례형 문제는 최신판례를 전면적으로 반영하고, 실무적 요청에 부응하는 시험으로 탈바꿈 하였다. 필자는 많은 고민끝에 2023대비 개정판을 쓰면서 형사소송법의 학습이 실무에 보다 충실 하도록 몇 가지 서술을 변경하였다. 대표적인 예가 사진촬영의 법적 성질을 임의수사로 검토한 것이다. 수사실무상 임의수사의 한 방법으로 사진촬영이 행해지나 강력한 비례의 원칙으로 통제하고자 하는 것이 법원의 태도이기 때문이다.
필자는 약 15년 동안 경찰승진시험과 경찰간부시험에서 필독서로 손꼽히는 본서를 집필해오면서 도, 마음 한 편에는 항상 아쉬움이 남아있었다. 2020년까지의 경찰 주관식 시험의 현실 때문이다.
형사소송 실무의 90%이상을 책임지는 경찰의 사무관급 승진시험이 여타의 국가고시보다 10여년은 과거에 머물러 있었기 때문이다. 최소한 판례가 변경되거나 법령이 바뀐 부분은 그에 맞추어 해석론을 전개하여야 함에도 불구하고 심지어 2008.1.1. 이전의 해석론으로 해당 논점을 서술한 교재들도 많았다. 시험의 태도를 감안하면, 학계의 동향은 고사하고 최신판례, 개정법령마저 교재에 소개하 기가 망설여지기 일쑤였다. 대부분의 경찰승진, 경찰간부교재의 내용이 반영하지 않는 내용을 혼자만 수록한다는 것이 결코 쉬운 선택은 아니었기 때문이다. 필자는 2021년판에 이어 2022년 판에도 상당수의 내용을 학계와 판례에 맞추어 서술을 변경하였다.
경찰승진 시험은 경찰내부에 엄청난 활력소가 된다. 승진시험 공부를 통해 개정된 법령과 최신판례에 대한 지식을 얻고 그 지식을 활용하여 상당수의 사건을 공정하고 합리적으로 처리할 수 있기 때문이다.
심지어 승진공부를 하는 1명으로 인해 십 수 명이 원활하게 업무를 처리하곤 한다.
필자는, 실무, 판례, 학계의 견해에 맞추어 상당한 내용의 단문서술을 정비하였다. 또한 촉박한 시간에 학습을 하고 채점을 하는 많은 분들의 노고를 덜어드리기 위해, 학습 및 채점난이도가 있는 중요단문들에 대해 채점기준표를 예시로 작성하였다. 본서의 특징은 다음과 같다.
첫째, 수사권조정과 관련한 최신개정법령, 특히 「검사와 사법경찰관의 상호협력과 일반적 수사 준칙에 관한 규정」을 철저히 분석·반영함으로써, 승진시험에서의 단문공부 뿐 아니라 불송치결정 등 실무를 행함에 있어서도 도움이 될 수 있도록 하였다.
둘째, 본서를 바탕으로 사례풀이까지 연계하여 손쉽게 공부할 수 있도록 수사와 증거분야에 있어서 세세한 논점과 내용을 정비하고 최신판례를 적극 반영하였다. 향후 교수출제가 이어진 다면, 단문 역시 학설과 판례가 있는 부분을 발췌하여 출제할 확률이 높다는 점까지 고려한 것이다.
셋째, 출제유력한 중요단문들에 대해 채점기준표를 만들어 학습과 채점의 편의를 도모하고, 무엇이 키워드인지를 독자들이 명확히 이해할 수 있도록 하였다.
넷째, 2022.1.1. 검사작성 피의자신문조서가 사법경찰관작성 피의자신문조서와 동일한 요건 하에 증거능력이 판단된다는 점을 고려하여 관련 서술을 논리적이고 체계적으로 정비하였 고, 대부분의 검토를 판례와 현행법령의 해석론과 일치시킴으로써, 내용을 이해하겠다고 마음먹는 순간 체계적으로 지식이 습득될 수 있도록 하였다.
단문은 결국 암기하여야 한다. 그러나 처음부터 암기위주로 학습하는 것은 법을 제대로 이해하고 향후 이어질 사례학습에 결코 도움이 되지 않는다. 결국, 이해 없는 암기는 사상누각(沙上樓閣)에 불과하다. 필자는 단문암기의 편의를 위해 형사소송법 주관식 단문X노트를 최대한 빠른 시기에 발매할 예정이며, 통합사례 역시 최신 논점을 반영하여 상당수를 개정할 예정이다. 단문에 대한 충실한 이해는 향후 이어질 단문암기와 사례학습에 많은 도움이 될 것이다.
본서가 나오기까지 함께 해준 김동화, 김백선, 홍민교, 이종배, 문지수님께 감사의 말을 전한 다. 무엇보다 필자가 채점기준표 작성이라는 지난한 작업을 끈기 있게 해낼 수 있었던 것은 바쁜 일과를 쪼개어 땀흘리는 현직 경찰관분들의 노고를 잘 알고 있기 때문이었다. 그들의 노력과 열정, 진심에 경의를 표하며 본서의 서문을 마무리하기로 한다.
2022. 2.3.
필자 정주형
Theme 1. 실체진실주의 (경정91, 경간2018) ★ ············································································ 1
Theme 2. 적정절차의 원리 ······································································································· 7
Theme 3. 신속한 재판의 원칙 (행시93) ··················································································· 11
Theme 4. 피의자의 소송법상 지위와 권리 (경감77/88), (경간85/87/91/2019) ★★ ··············· 15
Theme 5. 수사의 의의와 한계 (경정84, 경감87, 경간84) ★★★ ·········································· 21
Theme 6. 인신구속과 인권보장 (경정91/2000, 경간 2002) ★ ················································ 29
Theme 7. 수사의 단서 (경간88) ······························································································ 33
Theme 8. 수사의 조건 (경정91, 친고죄의 고소전수사 경간2004) ★★★ ···································· 37
Theme 9. 함정수사 (경정2006, 위법한 함정수사의 소송법상 효과 － 경간2005)★★★ ··············· 45
Theme 10. 불심검문 ★★ ········································································································ 49
Theme 11. 소지품검사의 적법성 (경정2015, 경간2008) ★ ························································ 57
Theme 12. 친고죄의 고소 (경간81/85, 고소의 추완 행시88/2007) ★ ·········································· 61
Theme 13. 고소불가분의 원칙(고소의 효력범위) (경정89/2006/2021, 경간77/2009) ★★ ····· 69
Theme 14. 고소의 취소 (경정2009, 경감91) ★★ ······································································ 73
Theme 15. 고소의 포기 (경정2010) ★ ······················································································· 77
Theme 16. 고소와 고발의 이동 (경정2007, 경간2001) ★★ ······················································ 81
Theme 17. 영장주의 (경정75/90, 경간85, 영장주의 예외 경간2001/2015) ★★★ ························ 87
Theme 18. 감청(도청) (경정93, 경간2000) ★★★ ···································································· 95
Theme 19. 피의자신문 ★★ ··································································································· 103
Theme 20. 진술의 영상녹화 ★★★ ····················································································· 109
Theme 21. 수사에 대한 사법적 통제 (경정2012, 경간2003) ★ ············································· 117
Theme 22. 위법수사의 구제 (경정89, 사시81, 행시93, 경간2021) ★★ ··································· 121
Theme 23. 임의동행 (경정2011) ★★★ ················································································· 125
Theme 24. 수사상 임의동행의 적법성 ★ ··········································································· 133
Theme 25. 임의수사의 본질과 한계 (경정95) ★★ ······························································ 137
Theme 26. 피의자의 체포와 구속의 요건 (사시80/94) ★★ ·················································· 141
Theme 27. 영장에 의한 체포 ★ ·························································································· 147
Theme 28. 긴급체포 ★★ ····································································································· 151
Theme 29. 긴급체포되어 구속된 자의 수사상의 방어권 (경간2008) ★ ····························· 157
Theme 30. 현행범인의 체포 (경감84/93, 경간84/92) ★ ························································ 161
Theme 31. 이중구속과 별건구속 (경정2012), (경간13사례) ★ ················································ 165
Theme 32. 구속전 피의자심문제도(영장실질심사제도) (경정99, 경간2007/2017) ★★ ······ 173
Theme 33. 체포·구속적부심사제도 (사시80, 행시97, 경간2022) ★★ ································· 179
Theme 34. 보증금납입조건부 피의자석방(피의자 보석, 기소전 보석) (사시98) ★★ ······ 187
Theme 35. 보 석 (경감90, 경간94) ························································································· 195
Theme 36. 구속된 피의자의 인권보장제도 (경정2000/2019) ★★ ········································ 203
Theme 37. 대물적 강제처분에 있어서의 영장주의의 예외 ★ ········································· 207
Theme 38. 압수·수색에 있어서의 영장주의의 예외 (경정2008, 경간2001) ★★★ ·········· 213
Theme 39. 체포현장에서의 압수·수색·검증 (경정2016, 경간2013) ★★★ ······················ 221
Theme 40. 긴급체포시의 압수·수색·검증 ★★★ ··························································· 225
Theme 41. 압수물의 가환부와 환부 (경정2014, 경간2016) ··················································· 229
Theme 42. 신체검사(체내강제수사) (경간2005) ★★★ ······················································· 237
Theme 43. 강제채뇨 ★ ······································································································· 245
Theme 44. 강제채혈 ★ ······································································································· 249
Theme 45. 수사상의 증거보전 (경정77, 경감83, 경간2002) ★★ ··········································· 253
Theme 46. 공소제기 후의 수사 ★ ······················································································ 261
Theme 47. 공소제기 후의 임의수사 (경간2004/2014, 법원행시2018) ★★★ ························· 269
Theme 48. 증거의 의의와 종류 (경정98, 경간76/87) ····························································· 273
Theme 49. 증거의 수집 (경정90) ···························································································· 277
Theme 50. 증거재판주의 ★★ ······························································································· 281
Theme 51. 엄격한 증명의 대상 (경정84/96, 경간2000) ★ ··················································· 289
Theme 52. 거증책임 (사시91) ★★★ ···················································································· 293
Theme 53. 거증책임의 전환 (경간2009) ★ ··········································································· 301
Theme 54. 자유심증주의와 그 예외 (경정89) ★★ ····························································· 305
Theme 55. 자백배제법칙(자백의 임의성) (경정94/2011, 경간93/2003) ★ ···························· 313
Theme 56. 약속에 의한 자백 (경간2018) ★★ ····································································· 323
Theme 57. 위법수집증거배제법칙 (경정99, 경간 2004) ★ ···················································· 327
Theme 58. 독수의 과실이론 (경간2012) ★★ ······································································· 333
Theme 59. 전문증거와 전문법칙 (경정82, 경간86/2012) ······················································ 337
Theme 60. 검사작성의 피의자신문조서 (경감91, 사시86) ★★ ············································ 343
Theme 61. 사법경찰관작성의 피의자신문조서 (경정2008) ★★ ········································· 349
Theme 62. 진술조서 (경정2016, 경간2022) ★★ ···································································· 355
Theme 63. 진술서의 증거능력 (경정2000, 사시92) ★★★ ·················································· 361
Theme 64. 수사기관작성의 검증조서 (사법경찰관작성 검증조서의 증거능력 － 경간2008) ★★ 369
Theme 65. 실황조사서 (경정2017, 경간2001/2015) ★ ····························································· 377
Theme 66. 감정서 ················································································································· 383
Theme 67. 제314조를 논함 ★★★ ····················································································· 387
Theme 68. 당연히 증거능력이 있는 서류 ·········································································· 397
Theme 69. 전문진술의 증거능력 ★★ ················································································ 401
Theme 70. 조사자 증언 (경정2008, 경간2014) ★ ·································································· 409
Theme 71. 진술의 임의성 ·································································································· 413
Theme 72. 사진의 증거능력 (경간2016) ★★★ ···································································· 417
Theme 73. 비밀촬영사진 ★ ································································································· 425
Theme 74. 녹음테이프의 증거능력 (경정2015, 경간2005) ★★★ ········································ 429
Theme 75. 거짓말탐지기 검사결과의 증거능력 (경간2007) ★★ ······································· 437
Theme 76. 당사자의 동의와 증거능력 (경정83/2021, 경간2015) ★ ···································· 445
Theme 77. 탄핵증거 (경간2011) ★★★ ················································································· 453
Theme 78. 자백과 보강증거 (경정78/2022, 경간83/2006) ★★ ············································· 461
Theme 79. 공판조서의 증거능력과 증명력 (공판조서의 배타적 증명력 경간2007) ★★ ········ 467
Theme 80. 공범자의 자백 (경정2007/2019, 경간2000) ★★★ ·············································· 475
Theme 81. 검사와 사법경찰관리의 관계 (경정80, 경간91/2010) ★★★ ······························ 481
Theme 82. 피고인의 특정(성명모용과 위장출석) ······························································ 491
Theme 83. 피고인의 소송법상 지위 (경간 81, 행시90) ························································ 497
Theme 84. 무죄추정의 원칙 (경정2020, 경간94) ★ ······························································ 503
Theme 85. 진술거부권 (경정83/2022, 경감89, 경간2006) ★★ ·············································· 507
Theme 86. 진술거부권의 효과 (경정93, 경간90/2011) ★★ ·················································· 513
Theme 87. 국선변호인 (사시85, 경간2021) ★★ ····································································· 517
Theme 88. 변호인의 소송법상 지위와 권한 (사시90) ······················································· 525
Theme 89. 변호인의 접견교통권 (경정95/2010, 경간2017) ★★★ ······································· 531
Theme 90. 피의자와 피고인의 접견교통권 (경감93, 법원행시2006) ★ ································ 539
Theme 91. 변호인의 피의자신문참여권 (경정2017) ★★ ····················································· 545
Theme 92. 변호인의 형사기록열람·등사권 (경정2013) ★ ················································· 549
Theme 93. 증거개시제도 (경정2018) ····················································································· 553
Theme 94. 공소권남용 ·········································································································· 557
Theme 95. 불기소처분 (경정90, 사시93) ★ ··········································································· 563
Theme 96. 사법경찰관의 불송치결정권 ★★★ ································································· 567
Theme 97. 기소독점주의 (경정2009, 경간86/2012) ★ ··························································· 573
Theme 98. 기소편의주의에 대한 규제 (경감80, 사시84) ····················································· 577
Theme 99. 기소강제절차(재정신청) (경정82/88, 행시92) ★★★ ········································ 581
Theme 100. 공소장일본주의 (경간2019, 법행2018) ★ ····························································· 589
Theme 101. 공소시효 (경정2020, 경간2010) ★ ········································································ 595
Theme 102. 증인적격 ★ ········································································································ 603
Theme 103. 참고인과 증인의 지위 비교 (경간2020, 사시2003) ★★ ··································· 607
Theme 104. 증인의 권리와 의무 (경정76, 경간88) ································································ 613
Theme 105. 간이공판절차 (경간2020, 사시95) ★ ···································································· 619
Theme 106. 피해자의 형사절차상의 지위 (경정2018, 경간2006/2014) ★ ······························ 623
Theme 107. 준항고 ★ ··········································································································· 629
Theme 108. 수사기관의 처분에 대한 준항고 ★★★ ························································· 635
Theme 109. 약식절차 ★ ········································································································· 641
Theme 110. 즉결심판절차 (경정2013, 경간2002/2016) ★★ ······················································ 649
