수험서,변호사시험,법원행시,5급공채,입법고시 등 대비
변호사시험의 시행도 어언 10년이 지났다. 10년의 시간과 함께 변호사시험의 출제영역은 확대되어가고 있고, 2020년 3회에 걸쳐 시행된 법학전문대학원 협의회의 모의고사에서도 역시 기존에 못 보던 논점들이 상당수 출제되었다. 주관식 시험을 보고 있는 법원행시, 5급공채, 법무사시험, 법원사무관승진시험, 경찰 승진시험 등에서도 형사소송법은 나날이 그 수준에 깊이를 더해가고 있다. 한 가지 예측가능한 점은 바로, 순수한 이론보다는 최신판례 영역에서의 출제가 잦다는 점이다. 이는 모든 주관식 시험의 공통된 현상이다.
특히, 실무적 관심도가 높은 압수·수색에 있어 영장주의 예외, 위법수집증거배제법칙, 전문법칙, 상소절차 등에 시험이 집중되고 있다.
본서는 이러한 점을 감안하여, 최신판례를 철저히 분석하여 주관식 답안을 쓸 수 있게끔 이유가 되는 부분과 판례의 결론부분을 구분하여 언더라인을 해두었다. 또한 선택형에 있어서는 판례의 결론이 매우 중요하다는 점을 감안하여 일목요연하게 판례를 정리할 수 있도록 판례의 제목을 뽑는 데에 신중을 기하였다.
2021년에는 수사구조의 개편을 주내용으로 하는 2020.2.4. 개정형사소송법이 시행되는 등, 다양한 개혁입법 법안들이 시행되었다. 본서는 개정된 수사절차를 바탕으로 2020.10.7. 제정된 검사와 사법경찰관의 상호 협력과 일반적 수사준칙에 관한 규정(대통령령)까지도 철저히 반영하였다.
무엇보다도, 본서는 수험서를 지향한다. 수험서란 무릇 시험에 최적화된 교재이어야 한다. 실전 시험에서 가장 수험적합적인 것은 기출문제일 수밖에 없다. 본서는 변호사시험, 법학전문대학원 모의고사, 사법시험 등을 철저히 분석하였고, 기출된 논점에 대해서는 꼼꼼히 기출표시를 해둠으로써 독자들이 강약을 조절하며 공부를 할 수 있도록 하였다.
본서의 특징을 정리하면 다음과 같다.
첫째, 2021.2.10.까지 선고된 최신판례를 철저히 반영하였다. 특히, 판례의 단순요지뿐 아니라 필요한 경우에는 사실관계를 정리하고 결론에 이르게 된 이유까지도 체계적으로 수록하였다.
둘째, 주관식 답안작성의 편의를 위해, 반드시 답안지에 현출해야할 판례의 근거부분과 결론부분에 언더라인을 해두었다.
셋째, 최신개정법령을 철저히 반영하고 입법자의 입법의도, 개정법의 정확한 해석론 등을 소개하였다.
넷째, 다양한 표와 정리자료를 통해 반드시 암기가 필요한 부분을 손쉽게 정리할 수 있도록 하였다.
다섯째, 기출논점들을 철저히 분석하여 반영하였다. 모든 기출문제와 법전협모의시험문제를 반영하였으며 기타, 중요도가 큰 최근 사법시험이나 5급공채(행정고시), 법원행시 등의 문제까지도 일부 반영하여 표시하였다. 구체적으로, 2021년도 변호사시험은 (辯 21), 2019년도 법학전문대학원 협의회 모의고사는 (協 21) 등으로 표시하였고 사례논점의 경우 (辯 21사례) 등으로 사례라는 표현을 병기하였다.
본서로 수험을 준비하는 많은 독자들에게 당부하고 싶은 것은, 시험에 합격할 정도로 핵심포인트만을 중심 으로 공부하는 것과 처음부터 끝까지 체계적으로 공부하는 것에는 시간차이가 별로 나지 않으므로 실무가 로서 정확한 내용을 알겠다는 마음으로 학습을 하여야 한다는 것이다. 고득점과 저득점은 과목을 대하는 자세에서 대부분이 결정된다. 다음으로 최근에는 판례의 서술에 배점이 높으므로, 판례의 결론과 결론에 이르게 된 이유에 대해 철저히 암기 내지는 숙지해야 한다는 것이다. 암기는 모든 사람이 번거롭고 하기 싫은 일이지만 암기의 대가는 매우 달콤하다는 점을 명심할 필요가 있다.
본서가 나오기까지 기출표시와 오타, 편제정비 등에서 많은 검토를 해준 이종배님과 방현호님, 본서의 편집과 디자인, 유통 등을 책임져준 김동화님, 김백선님, 홍민교님, 문지수님 등에게 우의(友誼)와 감사의 말을 전한다. 본서로 수험을 준비하는 모든 독자들이 원하는 결과를 이루길 간절히 바라며 본서의 서문을 마무리하기로 한다.
2021년 2월 15일
필자 정주형
제1편 총설
제1장 형사소송법의 기초 ··············································································································· 1
제1절 형사소송법의 의의와 성격 ······································································································ 1
제2절 형사소송법의 법원과 적용범위 ······························································································· 3
제3절 형사소송법의 역사 ················································································································ 9
제2장 형사소송법의 이념과 구조 ······················································································ 11
제1절 형사소송의 지도이념 ············································································································ 11
제2절 형사소송의 기본구조 ··········································································································· 17
제2편 소송주체와 소송행위
제1장 소송의 주체와 당사자 ······································································································· 20
제1절 소송주체와 당사자의 의미 ··································································································· 20
제2절 피고인 ······························································································································· 25
제3절 검사 ·································································································································· 39
제4절 법원 ·································································································································· 45
제5절 변호인 ······························································································································· 73
제6절 보조인 ······························································································································· 89
제2장 소송절차·소송행위·소송조건 ······················································································ 90
제1절 소송절차의 기본구조 ··········································································································· 90
제2절 소송조건론 ························································································································· 93
제3절 소송행위론 ························································································································· 98
제3편 수사
제1장 수사총론 ···························································································································· 116
제1절 수사기관 ··························································································································· 116
제2절 수사의 의의와 수사의 단서 ······························································································· 126
제3절 고소·고발·자수 ············································································································· 140
제4절 임의수사 ·························································································································· 165
제2장 강제처분과 강제수사 ········································································································· 198
제1절 수사구조론 ······················································································································· 198
제2절 체포 ································································································································ 201
제3절 피의자와 피고인의 구속 ···································································································· 219
제4절 압수·수색·검증 ············································································································ 265
제5절 수사상 증거보전 ··············································································································· 312
제4편 수사의 종결과 공소제기
제1장 수사의 종결 ······················································································································ 320
제1절 수사종결의 의의와 종류 ···································································································· 320
제2절 불기소처분에 대한 불복 ···································································································· 325
제2장 공소의 제기 ····················································································································· 338
제1절 공소제기의 기본원칙 ········································································································· 338
제2절 공소와 공소권이론 ··········································································································· 340
제3절 공소제기의 효과 ··············································································································· 347
제4절 공소제기의 후의 수사 ······································································································· 349
제5절 공소시효 ·························································································································· 354
제5편 공판
제1장 공소의 제기와 법원의 심판대상 ························································································ 372
제1절 공소제기의 방식 ··············································································································· 372
제2절 공소제기와 법원의 심판대상 ······························································································ 392
제3절 공소장변경 제도 : 심판대상의 조정 ··················································································· 396
제2장 공판절차 ··························································································································· 423
제1절 공판절차의 기본원칙 ········································································································· 423
제2절 공판준비절차 ··················································································································· 429
제3절 협의의 증거개시제도 ········································································································ 437
제4절 공판정의 심리 ················································································································· 445
제5절 공판기일의 절차 ··············································································································· 455
제6절 증인신문 ·························································································································· 469
제7절 공판절차의 특칙 ··············································································································· 481
제8절 국민참여재판 제도 ··········································································································· 488
제3장 증거 ································································································································· 502
제1절 증거의 의의와 종류 ·········································································································· 502
제2절 증명의 기본원칙 ··············································································································· 505
제3절 위법수집증거배제법칙 ······································································································· 514
제4절 자백배제법칙 ··················································································································· 532
제5절 진술의 임의성 ·················································································································· 541
제6절 전문법칙 ·························································································································· 543
제7절 당사자의 증거동의 ············································································································ 618
제8절 자유심증주의 ···················································································································· 627
제9절 탄핵증거 ························································································································· 640
제10절 자백의 보강법칙 (辯 15사례, 司 44,52,54) ······································································· 646
제11절 공판조서의 배타적 증명력 ·································································································· 656
제4장 재판 ································································································································· 660
제1절 재판의 기본개념 ··············································································································· 660
제2절 종국재판 ·························································································································· 664
제3절 재판의 확정과 효력 ·········································································································· 681
제6편 상소·비상구제절차·특별형사절차
제1장 상소 ·································································································································· 698
제1절 상소일반 ·························································································································· 698
제2절 상소의 일반적 허용조건 ···································································································· 700
제3절 항소 ································································································································ 729
제4절 상고 ································································································································ 746
제5절 항고 ································································································································ 757
제2장 비상구제절차 ······················································································································765
제1절 재심 ································································································································ 765
제2절 비상상고 ·························································································································· 788
제3장 특별형사절차 ···················································································································· 793
제1절 약식절차 ·························································································································· 793
제2절 즉결심판절차 ···················································································································· 801
제3절 소년에 대한 형사절차 ······································································································· 807
◆ 판례색인 ······························································································································ 813
