*간략설명*
첫째, 수사권조정과 관련한 최신개정법령, 특히 「검사와 사법경찰관의 상호협력과 일반적 수사준칙에 관한 규정」에 관하여 단문공부 뿐 아니라 불송치결정 등 실무를 행함에 있어서도 도움이 될 수 있도록 철저히 분석·반영.
둘째, 2020.12.8.(2021.12.9.시행)에 형사소송법 38개 조문에 대한 일부개정이 있어, 그 부분까지 교재에 반영
셋째, 사례풀이까지 연계하여 손쉽게 공부할 수 있도록 수사와 증거분야에 있어 세세한 논점과 내용을 정비하고 최신판례를 적극 반영.(향후 교수출제가 이어진다면, 단문 역시 학설과 판례가 있는 부분을 발췌하여 출제할 확률이 높다는 점까지 고려.)
넷째, 2022.1.1. 검사작성 피의자신문조서가 사법경찰관작성 피의자신문조서와 동일한 요건 하에 증거능력이 판단된다는 점을 고려하여 관련 서술을 논리적이고 체계적으로 정비. (비록 조항 1개가 시행되는 것이지만 제312조 제4항, 제314조 등의 해석론에 막대한 영향을 미치게 된다는 점을 직시할 필요성.)
다섯째, 대부분의 검토를 판례와 현행법령의 해석론과 일치시킴으로써, 내용을 이해하겠다고 마음먹는 순간 체계적으로 지식이 습득될 수 있도록 구성.
*머리말*
2021년은 경찰수사권독립 원년으로서 국가수사본부 및 공수처가 출범하게 됨으로써 일제강점기 이후 100여 동안 검사에게 독점되어 있던 수사권이 수평적으로 분배되는 역사적 전환점이 마련되었다. 경찰 로서는 책임수사의 원년이기도 하다. 경찰의 위상이 올라감에 발맞추어 경찰승진시험에도 새로운 지평이 열리게 된 듯하다. 바로 외부 출제위원들에 의해 수작(秀作)의 문제가 승진시험에 출제되었기 때문 이다. 2021년 경정급 주관식 형사소송법 시험문제는 변별력의 확보, 사실관계의 정확성과 세련됨, 질문의 수준 등에 있어서 변호사시험이나 5급공채시험에 결코 뒤지지 않는 수준이었다. 무엇보다도 놀라운 것은 변호사시험이나 5급공채, 입법고시, 법원행시에서도 아직까지 출제되지 않았던 최신판례 논점(육 성에 의한 의사소통행위가 아닌 비명이나 사물에서 나는 소리는 통신비밀보호법이 적용되지 않는다는 판시)이 경찰승진시험에 최초로 출제되었다는 것이다. 최신판례와 개정법령의 신속한 숙지는 모든 실무 가들에게 중요한 일이겠지만, 현장에서 제일 먼저 쟁점 사안을 접하는 경찰관들에게는 더더욱 필수불가 결한 사항이라 하겠다.
필자는 약 15년 동안 경찰승진시험과 경찰간부시험에서 필독서로 손꼽히는 본서를 집필해오면서도, 마음한 편에는 항상 아쉬움이 남아있었다. 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 소개하기가 망설여지기 일쑤였다. 필자는 2021년 출제된 통신비밀보호법의 최신논점을 지난 해의 교재에 이미 수록한바 있으나, 대부분의 경찰승진, 경찰간부 교재의 내용이 반영하지 않는 내용을 혼자만 수록한다는 것이 결코 쉬운 선택은 아니었다.
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.
그런데, 실무 최고의 베테랑들이 잘못된 지식을 학습하고 잘못된 지식을 서술하여 승진시험 합격하게 된다면 경찰의 미래는 불투명해질 수밖에 없다. 단언컨대, 2021년도의 경찰승진 형사소송법 문제는 경찰의 미래를 밝게 만드는 촉매제가 될 것이다. 모름지기 재판이란 하늘이 알고 땅이 알고 모든 국민이 공감할 수 있는 것이어야 한다. 2021년 시험이야말로 시대적 요청에 정확히 부응한 시험으로 칭찬 받아 마땅하다. 향후 이와 같은 추세가 지속됨으로써 한층 국민에 사랑받는 경찰로 거듭날 수 있으리라 확신한다. 필자 역시, 새로운 시험추세로 인하여 확신에 찬 마음으로 이틀 밤을 새워 자신 있게 본서의 서술을 마치게 되었다. 본서의 특징은 다음과 같다.
첫째 수사권조정과 관련한 최신개정법령, 특히 「검사와 사법경찰관의 상호협력과 일반적 수사준칙에 관한 규정」을 철저히 분석·반영함으로써, 승진시험에서의 단문공부 뿐 아니라 불송치결정등 실무를 행함에 있어서도 도움이 될 수 있도록 하였다. 2020.12.8.(2021.12.9.시행)에 형사 소송법 38개 조문에 대한 일부개정이 있어, 그 부분까지 교재에 반영하였다.
둘째 본서를 바탕으로 사례풀이까지 연계하여 손쉽게 공부할 수 있도록 수사와 증거분야에 있어서 세세한 논점과 내용을 정비하고 최신판례를 적극 반영하였다. 향후 교수출제가 이어진다면, 단문 역시 학설과 판례가 있는 부분을 발췌하여 출제할 확률이 높다는 점까지 고려한 것이다.
셋째 2022.1.1. 검사작성 피의자신문조서가 사법경찰관작성 피의자신문조서와 동일한 요건 하에 증거능력이 판단된다는 점을 고려하여 관련 서술을 논리적이고 체계적으로 정비하였다. 비록 조항 1개가 시행되는 것이지만 제312조 제4항, 제314조 등의 해석론에 막대한 영향을 미치게 된다는 점을 직시할 필요가 있다.
넷째 대부분의 검토를 판례와 현행법령의 해석론과 일치시킴으로써, 내용을 이해하겠다고 마음먹는 순간 체계적으로 지식이 습득될 수 있도록 하였다.
상당수 수험생분들이 나이도 들고 공부할 시간도 없다는 이유로 너무도 간단히 단순암기의 방법을 선택 하는 듯하다. 그러나 이해 없는 암기는 사상누각(沙上樓閣)에 불과하다. 단문수업(이론수업)과 병행하여 해당내용을 이해한 다음 사례집과 사례강의로 해당 이론이 어떻게 적용되는지를 파악하게 되면 단문 암기가 훨씬 수월할 수밖에 없다. 물론, 이해만 하고 암기를 하지 않는 것도 치명적인 실수이다. 섣불리 암기부터 하고보자는 생각이 결국 이해뿐 아니라 암기도 망가뜨리는 원인이라는 점을 명심하여야 한다.
본서가 나오기까지 함께 해준 김동화, 김백선, 홍민교, 이종배, 문지수님께 감사의 말을 전한다.
무엇보다도 필자가 본서에 집중하며 서술을 마무리할 수 있도록 이끌어 준 분들은, 바쁜 일과를 쪼개고 휴식시간도 포기하며 최선을 다해 수험을 준비한 현직경찰관분들이다. 그분들의 노력과 열정, 진심에 경의를 표하며 또 감사의 마음으로 한분한분의 얼굴을 떠올리며 본서의 서문을 마무리하기로 한다.
2021. 1.18.
필자 정주형
Theme 1. 실체진실주의 (경정91, 경간2018) ★★ ······································································· 11
Theme 2. 적정절차의 원리 ······································································································ 15
Theme 3. 신속한 재판의 원칙 (행시93) ···················································································· 19
Theme 4. 피의자의 소송법상 지위와 권리 (경감77/88), (경간85/87/91/2019) ★★ ···················· 23
Theme 5. 수사의 의의와 한계 (경정84, 경감87, 경간84) ★★ ·················································· 27
Theme 6. 인신구속과 인권보장 (경정91/2000, 경간 2002) ★★★ ············································ 33
Theme 7. 수사의 단서 (경간88) ★ ···························································································· 37
Theme 8. 수사의 조건 (경정91, 친고죄의 고소전수사 경간2004) ★★★ ·········································· 41
Theme 9. 함정수사 (경정2006, 위법한 함정수사의 소송법상 효과 － 경간2005)★★★ ························ 47
Theme 10. 불심검문 ★★ ········································································································· 51
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) ★★ ··········· 67
Theme 14. 고소의 취소 (경정2009, 경감91) ★★★ ····································································· 71
Theme 15. 고소의 포기 (경정2010) ★ ························································································ 75
Theme 16. 고소와 고발의 이동 (경정2007, 경간2001) ★★ ························································· 79
Theme 17. 영장주의 (경정75/90, 경간85, 영장주의 예외 경간2001/2015) ★★ ·································· 83
Theme 18. 감청(도청) (경정93, 경간2000) ★★★ ········································································ 89
Theme 19. 피의자신문 ★ ·········································································································· 95
Theme 20. 진술의 영상녹화 ★★ ·························································································· 101
Theme 21. 수사기관 영상녹화물의 증거능력 (경정2014) ★★ ··············································· 105
Theme 22. 수사에 대한 사법적 통제 (경정2012, 경간2003) ★ ················································ 109
Theme 23. 위법수사의 구제 (경정89, 사시81, 행시93, 경간2021) ★★ ······································· 113
Theme 24. 임의동행 (경정2011) ★★ ······················································································ 117
Theme 25. 수사상 임의동행의 적법성 ★★ ········································································· 123
Theme 26. 임의수사의 본질과 한계 (경정95) ★★ ································································· 127
Theme 27. 피의자의 체포와 구속의 요건 (사시80/94) ★★ ··················································· 131
Theme 28. 영장에 의한 체포 ★ ··························································································· 137
Theme 29. 긴급체포 ★★ ····································································································· 141
Theme 30. 긴급체포되어 구속된 자의 수사상의 방어권 (경간2008) ★ ································· 147
Theme 31. 현행범인의 체포 (경감84/93, 경간84/92) ★ ··························································· 151
Theme 32. 이중구속과 별건구속 (경정2012), (경간13사례) ★ ··················································· 155
Theme 33. 구속전 피의자심문제도(영장실질심사제도) (경정99, 경간2007/2017) ★★ ············ 161
Theme 34. 체포·구속적부심사제도 (사시80, 행시97) ★ ··························································· 165
Theme 35. 보증금납입조건부 피의자석방(피의자 보석, 기소전 보석) (사시98) ★★ ············ 171
Theme 36. 보 석 (경감90, 경간94) ··························································································· 177
Theme 37. 구속피의자의 인권보장제도 (경정2000/2019) ★★ ··············································· 183
Theme 38. 대물적 강제처분에 있어서의 영장주의의 예외 ★ ············································· 187
Theme 39. 압수·수색에 있어서의 영장주의의 예외 (경정2008, 경간2001) ★★★ ················· 193
Theme 40. 체포현장에서의 압수·수색·검증 (경정2016, 경간2013) ★★★ ······························ 201
Theme 41. 긴급체포시의 압수·수색·검증 ★★★ ································································ 205
Theme 42. 압수물의 가환부와 환부 (경정2014, 경간2016) ······················································· 209
Theme 43. 신체검사(체내강제수사) (경간2005) ★★ ····························································· 215
Theme 44. 강제채뇨 ★★ ···································································································· 221
Theme 45. 강제채혈 ★★★ ································································································ 225
Theme 46. 수사상의 증거보전 (경정77, 경감83, 경간2002) ★★ ··············································· 229
Theme 47. 공소제기 후의 수사 ★ ······················································································· 235
Theme 48. 공소제기 후의 임의수사 (경간2004/2014, 법원행시2018) ★★★ ······························ 241
Theme 49. 증거의 의의와 종류 (경정98, 경간76/87) ★ ····························································· 245
Theme 50. 증거의 수집 (경정90) ★ ·························································································· 249
Theme 51. 증거재판주의 ★ ···································································································· 253
Theme 52. 엄격한 증명의 대상 (경정84/96, 경간2000) ★★★ ··············································· 259
Theme 53. 거증책임 (사시91) ★ ····························································································· 263
Theme 54. 거증책임의 전환 (경간2009) ★★ ········································································· 269
Theme 55. 자유심증주의 (경정89) ★ ······················································································ 273
Theme 56. 자유심증주의의 예외 (경정80, 경간93) ★ ···························································· 279
Theme 57. 자백배제법칙(자백의 임의성) (경정94/2011, 경간93/2003) ★★ ···························· 283
Theme 58. 약속에 의한 자백 (경간2018) ★★ ······································································· 293
Theme 59. 위법수집증거배제법칙 (경정99, 경간 2004) ★★★ ················································ 297
Theme 60. 독수의 과실이론 (경간2012) ★★★ ····································································· 303
Theme 61. 전문증거와 전문법칙 (경정82, 경간86/2012) ★ ······················································ 307
Theme 62. 검사작성의 피의자신문조서 (경감91, 사시86) ★★ ················································ 313
Theme 63. 사법경찰관작성의 피의자신문조서 (경정2008) ★★★ ········································· 319
Theme 64. 진술조서 (경정2016) ★★ ····················································································· 325
Theme 65. 진술서의 증거능력 (경정2000, 사시92) ★★★ ······················································ 331
Theme 66. 제313조 제1항?제2항의 진술서 (경정2000) ★★★ ············································ 337
Theme 67. 수사기관작성의 검증조서 (사법경찰관작성 검증조서의 증거능력 － 경간2008) ★★ ········ 341
Theme 68. 실황조사서 (경정2017, 경간2001/2015) ★ ····················································· 347
Theme 69. 감정서 ················································································································· 353
Theme 70. 제314조를 논함 ★★ ························································································· 357
Theme 71. 당연히 증거능력이 있는 서류 ············································································ 365
Theme 72. 전문진술의 증거능력 ★★ ·················································································· 369
Theme 73. 조사자 증언 경정(2008), (경간2014) ★★ ····························································· 375
Theme 74. 진술의 임의성 ··································································································· 379
Theme 75. 사진의 증거능력 (경간2016) ★★★ ····································································· 383
Theme 76. 비밀촬영사진 ★★ ···························································································· 389
Theme 77. 녹음테이프의 증거능력 (경정2015, 경간2005) ★★★ ············································ 393
Theme 78. 거짓말탐지기 검사결과의 증거능력 (경간2007) ★★ ············································ 401
Theme 79. 당사자의 동의와 증거능력 (경정83/2021, 경간2015) ★ ········································ 407
Theme 80. 탄핵증거 (경간2011) ★★★ ·················································································· 415
Theme 81. 자백과 보강증거 (경정78, 경간83/2006) ★★★ ····················································· 421
Theme 82. 공판조서의 증거능력과 증명력 (법행89) ★ ·························································· 427
Theme 83. 공판조서의 배타적 증명력 (경간2007) ★★ ························································· 433
Theme 84. 공범자의 자백 (경정2007/2019, 경간2000) ★★★ ················································· 437
Theme 85. 검사와 사법경찰관리의 관계 (경정80, 경간91/2010) ★★★ ·································· 443
Theme 86. 피고인의 특정(성명모용과 위장출석) ································································· 451
Theme 87. 피고인의 소송법상 지위 (경간 81, 행시90) ···························································· 457
Theme 88. 무죄추정의 원칙 (경정2020, 경간94) ★ ·································································· 463
Theme 89. 진술거부권 (경정83, 경감89, 경간2006) ★★ ··························································· 467
Theme 90. 진술거부권의 고지 ····························································································· 473
Theme 91. 진술거부권의 효과 (경정93, 경간90/2011) ★★★ ················································· 477
Theme 92. 국선변호인 (사시85, 경간2021) ★★ ······································································· 481
Theme 93. 변호인의 소송법상 지위와 권한 (사시90) ··························································· 487
Theme 94. 변호인의 접견교통권 (경정95/2010, 경간2017) ★ ·················································· 493
Theme 95. 피의자와 피고인의 접견교통권 (경감93, 법원행시2006) ★★ ································· 499
Theme 96. 변호인의 피의자신문참여권 (경정2017) ★★ ························································ 505
Theme 97. 형사기록열람·등사권 ··························································································· 509
Theme 98. 변호인의 기록열람·등사권 (경정2013) ★★ ·························································· 515
Theme 99. 증거개시제도 (경정2018) ★ ··················································································· 519
Theme 100. 공소권남용 ·········································································································· 523
Theme 101. 불기소처분 (경정90, 사시93) ★★ ·········································································· 529
Theme 102. 사법경찰관의 불송치결정권 ★★★ ··································································· 533
Theme 103. 기소독점주의 (경정2009, 경간86/2012) ★ ······························································· 539
Theme 104. 기소편의주의에 대한 규제 (경감80, 사시84) ★ ····················································· 543
Theme 105. 공소의 취소 ········································································································ 547
Theme 106. 기소강제절차(재정신청) (경정82/88, 행시92) ★★ ················································· 551
Theme 107. 예비적·택일적 기재 ···························································································· 557
Theme 108. 공소장일본주의 (경간2019, 법행2018) ★★ ···························································· 561
Theme 109. 일죄의 일부에 대한 공소제기 ·········································································· 567
Theme 110. 공소시효 (경정2020, 경간2010) ★ ·········································································· 571
Theme 111. 공소장변경 ········································································································ 579
Theme 112. 공소장변경의 필요성(요부) ················································································· 585
Theme 113. 증인적격 ★★ ····································································································· 589
Theme 114. 참고인과 증인의 지위 비교 (경간2020, 사시2003) ★★ ········································ 593
Theme 115. 증인의 권리와 의무 (경정76, 경간88) ··································································· 597
Theme 116. 간이공판절차 (경간2020, 사시95) ★★ ··································································· 603
Theme 117. 피해자의 형사절차상의 지위 (경정2018, 경간2006/2014) ★ ·································· 607
Theme 118. 준항고 ··············································································································· 613
Theme 119. 수사기관의 처분에 대한 준항고 ★★★ ···························································· 619
Theme 120. 약식절차 ★★ ····································································································· 623
Theme 121. 즉결심판절차 (경정2013, 경간2002/2016) ★ ····························································· 629
