1. 머리말
2022.5.9. 검사의 수사권을 제한하는 이른바 검수완박의 형사소송법이 공포되었다. 검사완박의 명칭에도 불구하고, 부패범죄와 경제범죄에 대한 검사의 수사권이 아직 남아있는 등 검수완박에는 미치지 못하는 아쉬움이 남는다. 2020.2.4. 형사소송법의 개정에 연이은 금번 개정은 다시는 이루어지기 어려운 패러다임의 변화라고 할 수 있다.
경찰수사권의 독립으로 인하여, 사법경찰관은 독자적이고 1차적인 수사권을 가진 수사주체가 되었고 국가수사본부 역시 도입되었다. 이와 같은 경찰위상의 재정립에 발맞추어 주관식 시험의 출제와 채점에 전면 정상급 교수진이 참여함으로써, 경찰승진 경정급 시험의 수준이 대폭 상향 되게 되었다. 2021년 이후의 기출사례문제는 어떤 고등고시보다도 높은 수준에서 실무와도 밀접한 문제들이 출제되었다.
답이 틀리든 맞든 그냥 경찰승진쪽의 교재에 적힌 수준에서 답안을 적어도 승진이 가능하였던 기존시험과는 차원이 달라진 것이 현실이다. 필자는 이러한 추세를 감안하여, 대한민국 형사소 송법의 최신판례등과 주요국가고시의 기출문제를 반영하였고, 학리에 맞게 모든 답안들을 재정 비하였다.
특히, 실무적 흐름을 감안하여 사진촬영의 법적 성질을 임의수사로 변경하였고, 검토의 기초를 판례와 학계에서 통상적으로 받아들여지는 다수설의 태도를 중심으로 서술하였다.
2. 본서의 특징
⑴ 59개의 사례로 최신판례와 최신기출논점을 반영
계속해서 사례를 늘리는 것만이 능사가 아니다. 대부분의 문제집들이 기출문제가 나오면 기존 교재에 새로운 기출문제를 추가하는 방식으로 교재를 개정한다. 그러나 그렇게 추가해나가다보면 공부를 해야할 분량만이 지속적으로 늘어날 뿐이다. 필자는 출제경향에 비추어 오래된 문제 들은 삭제하고 기출문제를 새롭게 추가하고, 기존의 문제들 가운데에서 일부논점을 변경하는 방식으로 문제의 숫자를 59개로 유지하였다.
⑵ 교수출제·채점에 맞는 고득점 답안구성
교수출제의 경우, 일반고등고시와 마찬가지로 학리가 제대로 서술되어야 하고, 판례의 태도가 정확히 현출되어야 한다. 또한 검토와 사안적용 역시 체계적이어야 한다. 본서는 기존 경찰수험 서들의 오류를 철저히 바로잡고, 교수출제에 맞추어 정확한 학리와 판례를 소개하고 있다. 또한 실전답안의 분량에 맞추어 서술방식의 강약 또한 조절하고 있다. 일부 경찰승진 수험서들이 제대로 서술하지 못하는 제313조 제1항·제2항 등의 영역에서 교수출제·교수채점 시대하에 고득 점을 맞을 수 있도록 답안을 구성하였다.
⑶ 체계적인 사례학습방법 유도
본서는 처음부터 끝까지 전체적인 계획하에 사례를 서술하였다. 따라서 하나하나의 논점과 서술 방식을 쌓아가면 다양한 논점이 결합되고 사실관계가 변형되더라도 손쉽게 문제를 해결할 수 있도록 기획하였다. 사례를 빼먹지 말고 1번부터 차근차근 학습을 하다보면 자연스럽게 높은 난이 도의 통합문제를 독파해 나갈 수 있도록 문제의 배열과 서술방식등을 깊이 있게 고민하였다.
3. 맺으며
필자는 15년 이상 경찰승진과 관련하여 교재집필과 강의를 진행하였다. 외부에서 평가하는 경찰과 실제로 필자가 함께 하며 알게 된 경찰의 모습은 많은 차이가 존재한다. 형사소송실무의 최전선에 서도 틈틈이 자기계발을 위해 학습에 매진해온 독자들이야말로 본서가 나올 수 있는 원동력이자 필자의 스승이다. 그들에게 감사와 경의를 표현다.
본서의 출간에 이르는 전과정을 이끌어준 김백선실장, 홍민교팀장, 문지수대리, 이종배선생님과 필자와 오랜기간 함께 해준 배형석, 이종금, 남상용이사님께 감사의 말을 전하며 본서의 서문을 마무 리하기로 한다.
2022.5.13.
필자 정주형
Case 1. 범죄용의자 비디오촬영의 적법성 ······································································· 1
Case 2. 함정수사 ··················································································································· 7
Case 3. 함정수사, 영장주의의 예외 ··············································································· 14
Case 4. 최면수사, 위법수집증거배제법칙 ····································································· 20
Case 5. 불심검문과 소지품검사의 한계(Ⅰ) ································································· 27
Case 6. 불심검문과 소지품검사의 한계(Ⅱ) ································································· 33
Case 7. 불심검문과 신분증제시의무 ·············································································· 39
Case 8. 체포현장에서의 압수·수색, 변호인의 피의자신문참여권 등 ··················· 47
Case 9. 진술거부권과 변호인의 피의자신문참여권 ···················································· 55
Case 10. 고소전 수사, 고소의 주관적 불가분의 원칙 ················································· 63
Case 11. 고소취소와 고소의 주관적 불가분의 원칙 ···················································· 67
Case 12. 불심검문의 절차와 항소심에서의 고소취소 ·················································· 72
Case 13. 소송조건과 수사, 고소의 추완, 고소의 포기 ··············································· 80
Case 14. 변호인의 피의자신문참여권 ·············································································· 87
Case 15. 미행 후 임의동행과 긴급체포 ·········································································· 92
Case 16. 임의동행의 적법성과 조서의 증거능력 ························································ 100
Case 17. 영장없는 신병확보 수단 및 체포·구속의 위법성을 다투기 위한 제도 106
Case 18. 영장없는 체포, 체포현장에서의 압수 ··························································· 112
Case 19. 별건구속, 여죄수사의 한계 등 ······································································· 118
Case 20. 압수·수색의 절차 ···························································································· 123
Case 21. 전자기록의 압수 ································································································ 134
Case 22. 체포현장 및 긴급체포된 자에 대한 압수·수색 ········································ 144
Case 23. 압수·수색에 있어서의 영장주의의 예외 ···················································· 153
Case 24. 체포현장 및 긴급체포된 자에 대한 압수?수색, 강제채뇨 등 ··············· 160
Case 25. 임의제출물 압수, 위법수집증거에 대한 증거동의 ····································· 167
Case 26. 임의제출물의 압수 및 CCTV의 증거능력 ··················································· 175
Case 27. 변호인의 비닉권과 강제채뇨 ·········································································· 183
Case 28. 증인신문 및 증거보전의 청구 ········································································ 190
Case 29. 참고인진술서와 증거보전 ················································································ 196
Case 30. 압수·수색의 절차 및 진술번복조서 ···························································· 205
Case 31. 공소제기 후의 수사 ·························································································· 213
Case 32. 기망과 약속에 의한 자백의 증거능력 ·························································· 220
Case 33. 강요와 철야신문에 의한 자백 ········································································ 227
Case 34. 위수증과 독수과실의 예외이론, 진술거부권 ··············································· 234
Case 35. 위수증과 증거동의, 독수과실의 원칙 ··························································· 241
Case 36. 영장의 집행절차 및 전문법칙 종합 ······························································ 248
Case 37. 피의자신문을 위한 구인과 영상녹화물의 증거능력 ·································· 259
Case 38. 접견교통권을 침해하여 작성한 피신조서 ···················································· 266
Case 39. 피의자신문조서·진술서·조사자증언 ·························································· 274
Case 40. 참고인진술조서와 제314조 ············································································· 280
Case 41. 실황조사서의 증거능력, 거짓말탐지기조사결과의 증거능력 ·················· 286
Case 42. 거짓말탐지기조사결과의 증거능력 ································································ 294
Case 43. 압수·수색의 범위와 정당하지 못한 증언거부 ·········································· 301
Case 44. 비진술증거, 재전문증거, CCTV영상의 증거능력 ······································ 312
Case 45. 피고인의 무단퇴정과 증거동의의 의제 ························································ 321
Case 46. 수첩, 진술녹음, 재전문증거의 증거능력 ····················································· 326
Case 47. 공소제기 후의 수사, 전자기록의 증거능력 ················································ 334
Case 48. 피의자신문조서의 증거능력과 진술녹음의 증거능력 ································ 342
Case 49. 접견교통권 침해와 피신조서의 증거능력, 위법수집증거와 탄핵증거 ·· 350
Case 50. 강제채혈과 실황조사서의 증거능력 ······························································ 357
Case 51. 강제채혈 및 자백의 보강법칙 ········································································ 365
Case 52. 자백의 보강법칙 ································································································ 374
Case 53. 전자기록의 압수와 조사자증언 ······································································ 380
Case 54. 특수매체기록의 증거능력 ················································································ 389
Case 55. 현장녹음, 비진술증거물의 대체물인 사진, 조사자증언 ··························· 396
Case 56. 사경이 긴급체포한 피의자에 대한 검사의 대면조사 등 ·························· 406
Case 57. 탄핵증거 및 법률의견서 ·················································································· 414
Case 58. 공동피고인의 법정진술의 증거능력 ······························································ 420
Case 59. 사진의 증거능력과 재전문증거 ······································································ 427
