최근 경찰승진시험은 출제와 채점에서 다양한 변화를 모색하고 있다. 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 최고 수준의 시험으로 위상을 정립하게 되었다. 2023년 시험에서는 전자정보의 압수·수색, 제216조제3항의 수색과 압수, 하자치유의 여부, 위법한 압수물의 환부 후 임의제출 등 주요 최신판례들이 출제되었다.
무엇보다도, 메이저 승진교재에 수록되어 있지 않은 단문이 출제됨으로써 수험생들의 불안이 가중 되었다. 그러나 이러한 변화는 수험생들의 변별력을 강화하기 위해 그냥 달달 암기하는 사람이 아니라, 응용력이 뛰어난 실무가들을 선별하기 위해 출제된 것으로 보인다. 아쉬운 점은 단문의 경우 일반고등고시의 경우에는 사실상 출제가 되지 않는다는 점에서, 단문보다는 준사례형의 확대가 바람직한 것으로 보인다.
그러나, 이번출제를 계기로 향후에 다양한 응용단문들이나 준사례형의 출제도 가능할 것으로 예상 된다는 점에서 단지 목차와 내용을 달달 암기하는 데에서 그치지 않고 내용의 정확한 파악, 사례를 통한 다양한 논점의 학습등이 있어야만 단문뿐 아니라 전체 과락을 맞지 않을 수 있다는 점을 명심할 필요가 있다.
과거 교수출제가 아니라 현직출제시절에는 최신판례와 최신법령이 아예 채점에 반영되지 않고, 이른바 그들만의 리그와 같이 이미 폐기된 판례, 학계에서 인정하지 않는 내용들도 채점에 반영된바 있다. 그러나, 교수출제로 들어서면서 이와 같은 오류가 시정되고 있다. 검사의 법과 판사의 법, 경찰의 법이 다를 수 없다. 모든 국민이 공감하는 법의 내용을 아는 사람들만이 제대로된 법률전 문가이고 실무가가 될 것이다. 이러한 관점에서 최근의 출제와 채점의 경향변화는 바람직한 것으로 보인다.
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(2022.5.9.개정), 특히 「검사와 사법경찰관의 상호협력과 일반적 수사준칙에 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. 특히 임의제출과 관련하 여서는 최근 그 발전의 폭이 넓다는 점을 고려하여 별도의 단문을 만들어 수록하였다.
셋째 출제유력한 중요단문들에 대해 채점기준표를 만들어 학습과 채점의 편의를 도모하고, 무엇이 키워드인지를 독자들이 명확히 이해할 수 있도록 하였다.
넷째 전체적인 검토를 판례와 현행법령의 해석론과 일치시킴으로써, 내용을 이해하겠다고 마음 먹는 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)에불과하다. 필자는 단문암기의 편의를 위해 형사소송법 주관식 단문X노트를 최대한 빠른 시기에 함께 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 김백선, 홍민교, 이종배, 노채선님께 감사의 말을 전한다. 최신의 출제경향의 변화를 최대한 흡수할 수 있도록 다양한 프로그램과 강의를 모색하고 있다. 본서로 학습하시는 모든 현직분들의 노력과 열정, 진심에 경의를 표하며 본서의 서문을 마무리하기로 한 다.
2023. 1.30.
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. 수사상 영상녹화 및 영상녹화물의 증거능력 ★★★ ······································· 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. 임의수사의 본질과 한계 (경정95) ★★ ······························································ 133
Theme 25. 피의자의 체포와 구속의 요건 (사시80/94) ★★ ················································ 137
Theme 26. 영장에 의한 체포 ★ ·························································································· 143
Theme 27. 긴급체포 ★★ ····································································································· 147
Theme 28. 긴급체포되어 구속된 자의 수사상의 방어권 (경간2008) ★ ····························· 153
Theme 29. 현행범인의 체포 (경감84/93, 경간84/92) ★ ························································ 157
Theme 30. 이중구속과 별건구속 (경정2012), (경간13사례) ★ ················································ 161
Theme 31. 구속전 피의자심문제도(영장실질심사제도) (경정99, 경간2007/2017) ★★ ······· 169
Theme 32. 체포·구속적부심사제도 (사시80, 행시97, 경간2022) ★★ ································· 175
Theme 33. 보증금납입조건부 피의자석방(피의자 보석, 기소전 보석) (사시98) ★★ ····· 183
Theme 34. 보 석 (경감90, 경간94) ·························································································· 191
Theme 35. 구속된 피의자의 인권보장제도 (경정2000/2019) ★★ ······································ 199
Theme 36. 전자정보의 압수·수색 ★★★ ········································································ 203
Theme 37. 압수·수색에 있어서의 영장주의의 예외 (경정2008, 경간2001) ★★★ ········· 209
Theme 38. 체포현장에서의 압수·수색·검증 (경정2016, 경간2013) ★★★ ······················ 217
Theme 39. 긴급체포시의 압수·수색·검증 ★★★ ···························································· 221
Theme 40. 임의제출물 등의 압수(제218조) ★ ································································· 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) ★★ ····································································· 322
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 104. 증인의 권리와 의무 (경정76, 경간88) ································································ 615
Theme 105. 간이공판절차 (경간2020, 사시95) ★ ···································································· 621
Theme 106. 피해자의 형사절차상의 지위 (경정2018, 경간2006/2014) ★ ······························ 625
Theme 107. 준항고 ★ ··········································································································· 631
Theme 108. 수사기관의 처분에 대한 준항고 ★★★ ·························································· 637
Theme 109. 약식절차 ★ ········································································································ 643
Theme 110. 즉결심판절차 (경정2013, 경간2002/2016) ★★ ······················································ 651
