수상 도서
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새로운 형사소송법 제3판이 출간된 지도 어느덧 3년이 흐른 가운데, 그동안 2017.12.19. 형종 상향의 금지(제457조의2) 등을 포함하는 일부 개정 형사소송법과 2018.3.20. 형사보상 및 명예회복에 관한 법률 개정(예: 형사보상청구에 대한 법원의 결정기한을 6개월로 정함 등)은 물론, 새로운 판례가 적지 않게 쏟아져 나와 이를 반영할 필요성이 강하게 제기되었기 때문에 개정 제4판을 발간하기로 결정하였다. 제4판은 제3판의 내용을 상당 부분 유지하되, 그동안 형사소송법의 변화를 최대한 반영하는 방향으로 중심을 잡았다.
본 제4판 형사소송법은 배우는 학생과 수험생은 물론이고 형사소송법을 가까이서 적용해야 하는 형사실무가에게도 유용한 교과서를 만들겠다는 필자의 처음 의도는 이번 개정판에서도 그대로 유지되었음을 밝혀 두며, 로스쿨에서의 사례 해결식 수업에도 본서의 설문과 해설은 많은 도움을 줄 것으로 확신한다.
본 제4판 형사소송법은 배우는 학생과 수험생은 물론이고 형사소송법을 가까이서 적용해야 하는 형사실무가에게도 유용한 교과서를 만들겠다는 필자의 처음 의도는 이번 개정판에서도 그대로 유지되었음을 밝혀 두며, 로스쿨에서의 사례 해결식 수업에도 본서의 설문과 해설은 많은 도움을 줄 것으로 확신한다.
제1편 총 론 편
제1장 ┃ 형사소송(법)에의 입문론
[§1] 형사소송(법)의 기초이론 ····················································································· 3
Ⅰ. 형사소송(법)의 의의 및 특징 ······································································ 3
1. 형사소송의 의의 / 3 2. 민사소송과의 차이 / 4
3. 절차의 구분과 통합 / 4
Ⅱ. 형사소송절차의 개관 ·················································································· 5
1. 정식절차 / 5 2. 경미사건에 대한 형사절차 / 9
Ⅲ. 형사소송법에 대한 기타사항 ···································································· 10
1. 형사소송법의 성격 / 10 2. 형사소송법의 법원(法源) / 11
3. 형사소송법의 적용범위 / 11 4. 형사소송법의 역사 / 12
[§2] 형사소송(법)의 지도이념 ··················································································· 14
Ⅰ. 실체적 진실(발견)주의 ··············································································· 14
1. 의 의 / 14 2. 내 용 / 15
3. 한 계 / 16
Ⅱ. 적정절차의 원리 ························································································· 17
1. 의 의 / 17
2. 핵심적 파생원칙으로서의 무죄추정의 원칙 / 18
3. 구현내용 / 19
Ⅲ. 신속한 재판의 원칙 ···················································································· 21
1. 의 의 / 21 2. 구현내용 / 22
3. 침해와 구제방법 / 24
[§3] 형사소송의 기본구조 ························································································· 24
Ⅰ. 규문(糾問)주의와 탄핵(彈劾)주의 ······························································· 24
Ⅱ. 당사자주의와 직권주의 ············································································· 25
1. 당사자주의의 내용 / 25 2. 직권주의의 내용 / 26
Ⅲ. 우리 형사소송법의 소송구조 ···································································· 26
1. 당사자주의와 직권주의의 조화 / 26
2. 당사자주의적 요소 / 27 3. 직권주의적 요소 / 28
제2장 ┃ 소송주체론
[§4] 법 원 ················································································································· 29
Ⅰ. 수사절차와 공판절차에서의 주체와 법원(법관) ·········································· 29
Ⅱ. 법원의 의의와 종류 ···················································································· 30
1. 법원의 의의 / 30 2. 법원의 종류 / 31
Ⅲ. 법원의 관할 ································································································ 32
1. 관할의 의의 / 32 2. 법정관할(1)/고유관할 / 33
3. 법정관할(2)/관련사건의 관할 / 34
4. 재정관할 / 36 5. 관할의 경합 / 38
6. 관할권 부존재의 효과 / 39 7. 사건의 이송 / 39
[§5] 법관의 제척·기피·회피 ·················································································· 43
Ⅰ. 의의 및 적용대상 ······················································································· 43
Ⅱ. 법관의 제척 ································································································ 44
1. 제척사유 / 44 2. 제척의 효과 / 47
Ⅲ. 법관의 기피 ································································································ 47
1. 기피사유 / 47 2. 심판절차 / 48
3. 불복여부 / 50
Ⅳ. 회 피 ·········································································································· 50
Ⅴ. 법원직원(통역인)에 대한 준용 ··································································· 50
[§6] 검 사 ················································································································· 51
Ⅰ. 검사의 의의 ································································································ 51
1. 연 혁 / 51 2. 검사의 성격 / 51
3. 검사의 자격과 신분보장 / 52 4. 검 찰 청 / 52
Ⅱ. 검사의 조직과 구조 ···················································································· 52
1. 검사동일체의 원칙 / 53 2. 법무부장관의 지휘·감독권 / 55
Ⅲ. 검사의 소송법상 지위 ················································································ 56
1. 다양한 지위 / 56 2. 수사의 주재자(주체) / 56
3. 공소권의 주체 / 57 4. 재판의 집행기관 / 58
5. 공익의 대표자 / 59
[§7] 피 고 인 ················································································································ 60
Ⅰ. (공동)피고인의 의의 ··················································································· 60
Ⅱ. 피고인의 특정 ···························································································· 60
1. 피고인 특정의 기준 / 60 2. 성명모용의 경우 / 61
3. 위장출석의 경우 / 64
Ⅲ. 피고인의 소송법상 지위 ············································································ 66
1. 서 론 / 66 2. 당사자로서의 지위 / 67
3. 증거방법으로서의 지위 / 68 4. 절차의 대상으로서의 지위 / 70
Ⅳ. 당사자능력과 소송능력 ············································································· 70
1. 당사자능력 / 70 2. 소송능력 / 72
Ⅴ. 피고인(피의자)의 인권 내지 방어권 보장을 위해 특별히 규정된
형사소송법상의 권리 ················································································· 74
1. 개 관 / 74 2. 진술거부권 / 76
3. 접견·교통권 / 83
[§8] 변 호 인 ················································································································ 84
Ⅰ. 변호인제도 ·································································································· 84
Ⅱ. 선 임 ·········································································································· 85
1. 사선변호인 / 85 2. 국선변호인 / 87
Ⅲ. 변호인의 지위 ···························································································· 94
1. 보호자로서의 지위 / 94 2. 공익적 지위 / 95
Ⅳ. 변호인의 권한 ···························································································· 96
1. 대 리 권 / 96 2. 고 유 권 / 97
3. 변호인 의뢰인 사이의 특권(Attorney-Client Privilege) / 97
Ⅴ. (피고인·변호인의) 기록 열람·복사권 ······················································ 99
1. 법원이 보관하는 서류 등에 대한 열람·복사 / 99
2. 형사소송법에 의해 새로 도입된 증거개시제도 / 101
Ⅵ. (피의자·피고인·변호인의) 접견교통권 ··················································· 101
1. 의 의 / 101
2. 변호인의 접견교통권과 변호인과의 접견교통권 / 102
3. 비변호인과의 접견교통권 / 105
4. 접권교통권의 침해에 대한 구제 / 107
Ⅶ. 변호인의 피의자신문참여권 내지 피의자의 변호인참여신청권 ········ 108
1. 내 용 / 108 2. 불 복 / 110
[§9] 기타 소송관련자 ······························································································· 111
Ⅰ. 보 조 인 ····································································································· 111
Ⅱ. 배 심 원 ····································································································· 111
Ⅲ. 피 해 자 ····································································································· 113
1. 수사상 피해자의 지위 / 113
2. 공판절차에서의 피해자의 지위 / 115
3. 관련제도 / 116
제3장 ┃ 소송행위론과 소송절차 및 소송조건
[§10] 소송행위론 ······································································································ 117
Ⅰ. 일 반 론 ····································································································· 117
1. 의의 및 특징 / 117 2. 소송행위의 종류 / 117
3. 소송행위의 일반적 요소 / 119 4. 소송서류와 송달 / 122
Ⅱ. 소송행위의 가치판단 ··············································································· 132
1. 의 의 / 132 2. 소송행위의 성립·불성립 / 133
3. 소송행위의 유효·무효 / 134 4. 적법·부적법 / 140
5. 이유유·이유무 / 140
[§11] 소송절차와 소송조건 ····················································································· 140
Ⅰ. 소송의 실체면과 절차면 ·········································································· 140
1. 소송의 실체면 / 140 2. 소송의 절차면 / 141
Ⅱ. 소송절차의 본질 ······················································································· 141
1. 법률관계설 / 142 2. 법률상태설 / 142
3. 이면설 / 142
Ⅲ. 소송절차이분론 ························································································ 142
Ⅳ. 소송조건 ···································································································· 143
1. 의 의 / 143 2. 소송조건의 종류 / 144
3. 소송조건의 조사와 부존재의 효과 / 145
4. 소송조건의 추완 / 147
제2편 각론(1): 搜査節次論
제1장 ┃ 수사의 개시와 진행
[§12] 수사입문 ·········································································································· 151
Ⅰ. 수사의 의의 및 수사기관 ········································································· 151
1. 수사의 의의 / 151 2. 수사기관 / 153
Ⅱ. 수사 구조론 ······························································································· 159
1. 탄핵적 수사관과 소송적 수사관 / 159
2. 비 판 / 159
Ⅲ. 수사의 조건 ······························································································· 160
1. 수사의 필요성 / 160 2. 수사의 상당성 / 162
[§13] 수사의 단서 ····································································································· 168
Ⅰ. 의의 및 종류 ······························································································ 168
Ⅱ. 변사자의 검시 ··························································································· 170
Ⅲ. 불심검문 또는 직무질문 ·········································································· 170
1. 의 의 / 170 2. 불심검문의 대상 / 171
3. 불심검문의 방법 / 172 4. 불심검문시의 소지품검사 / 177
5. 자동차 검문 / 180
6. 주민등록법에 의한 주민등록증의 제시요구와 동행요구 / 182
[§14] 고소(고발과 자수 포함) ································································································ 182
Ⅰ. 고소의 의의 ······························································································· 182
Ⅱ. 고소권자 ···································································································· 183
1. 피해자와 법정대리인 / 183 2. 기타 고소할 수 있는 자 / 185
Ⅲ. 고소의 절차 ······························································································· 186
1. 고소의 방법 / 186 2. 고소의 기간 / 187
3. 직계존속에 대한 고소금지 / 188
4. 고소의 취소 / 189 5. 고소의 포기 / 193
Ⅳ. 고소불가분의 원칙 ··················································································· 195
1. 의 의 / 195 2. 주관적 불가분의 원칙 / 195
3. 객관적 불가분의 원칙 / 199
Ⅴ. 고발과 자수 ······························································································· 201
1. 고 발 / 201 2. 자 수 / 202
[§15] 수사의 기본원칙 ····························································································· 203
Ⅰ. 수사방법과 수사원칙 ··············································································· 203
1. 임의수사와 강제수사 / 203
2. 임의수사의 원칙과 강제수사의 예외(규제) / 203
Ⅱ. 실질적 적법성이 문제되는 형식적 임의수사 ········································ 205
1. 임의수사에도 요구되는 비례성의 원칙 / 205
2. 임의동행 / 206 3. 보호실 유치 / 209
4. 승낙수색과 승낙검증 / 210
5. 거짓말탐지기 검사에 의한 수사 / 210
6. 마취분석 / 212 7. 기타 문제되는 수사방법 / 212
Ⅲ. 임의수사와 강제수사의 한계영역 내지 새로운 유형의 강제수사 ······ 216
1. 수사목적의 감청(盜聽) 내지 비밀녹음 / 216
2. 사진촬영(내지 비디오 촬영) / 223
3. 공무소 등에의 조회 / 225
[§16] 임의수사의 종류와 내용 ················································································ 226
Ⅰ. 피의자신문 ································································································ 226
1. 의 의 / 226 2. 절 차 / 226
3. 피의자신문조서의 작성 / 229 4. 피의자진술의 영상녹화 / 229
5. 수사과정의 기록 / 230
6. 장애인 등 특별히 보호를 요하는 자에 대한 특칙 / 230
7. 피의자신문의 법적 규제 / 231
Ⅱ. 피의자 이외의 자에 대한 조사, 특히 참고인 조사 ································ 232
1. 의 의 / 232 2. 조사방법 / 232
3. 조서작성 및 기록 / 234
Ⅲ. 감정, 통역, 번역의 위촉과 전문수사자문위원의 자문 ························· 234
1. 감정, 통역, 번역의 위촉 / 234 2. 전문수사자문위원의 자문 / 235
Ⅳ. 사실조회(공무소 등에의 조회) ············································································ 235
[§17] 대인적 강제처분에 의한 강제수사 ······························································· 236
Ⅰ. 수사절차에서 대인적 강제처분의 기본구조 ········································· 236
Ⅱ. 피의자의 체포제도 ··················································································· 237
1. 체포제도의 개정 / 237
2. 영장에 의한 체포(정식체포, 통상체포) / 237
3. 긴급 체포 / 240 4. 현행범인의 체포 / 246
Ⅲ. 피의자(피고인)의 구속제도 ······································································ 251
1. 의 의 / 251 2. 요 건 / 252
3. 구속의 절차 / 254 4. 관련문제 / 267
Ⅳ. 구속의 집행정지와 실효 ·········································································· 272
1. 구속의 집행정지 / 272 2. 구속의 실효 / 273
[§18] 체포·구속 이후의 석방제도 ········································································· 274
Ⅰ. 석방제도의 개관 ······················································································· 274
Ⅱ. 체포·구속적부심사제도 ········································································ 275
1. 서 론 / 275 2. 심사청구 / 276
3. 법원의 심사 / 277 4. 법원의 결정 / 279
5. 보증금납입조건부 피의자석방제도 / 280
6. 재체포·재구속의 제한 / 282 7. 결정에 대한 불복 / 282
Ⅲ. 보석제도 ···································································································· 283
1. 의 의 / 283 2. 피고인을 위한 보석제도 / 284
3. 수사절차에서의 보증금납입조건부
피의자석방제도(일종의 피의자보석제도) / 292
[§19] 대물적 강제처분에 의한 강제수사 ······························································· 292
Ⅰ. 서 론 ······································································································· 292
1. 의의 및 종류 / 292 2. 요 건 / 292
Ⅱ. 수사상 압수와 수색 ·················································································· 295
1. 의 의 / 295 2. 압수·수색의 대상 / 296
3. 압수·수색의 절차 / 301 4. 압수물의 처리 / 306
Ⅲ. 수사상의 검증 ··························································································· 310
1. 의의 및 절차 / 310 2. 신체검사 / 312
Ⅳ. 대물적 강제처분에서의 영장주의 예외: 긴급압수·수색·검증 ········ 317
1. 체포·구속 목적의 피의자수사(피의자를 찾기 위한 일정한
장소의 수색) / 317
2. 체포현장에서의 압수·수색·검증 / 318
3. 피고인 구속현장에서의 압수·수색·검증 / 321
4. 범행 중 또는 범행 직후의 범죄장소에서의 압수·수색·검증 / 321
5. 긴급체포 이후의 압수·수색·검증 / 323
6. 임의제출한 물건의 압수 / 325
7. 미국 판례에서 인정되는 영장주의의 예외 / 327
[§20] 판사에 대한 강제처분의 청구 ······································································· 328
Ⅰ. 서 론 ······································································································· 328
Ⅱ. 증거보전제도 ···························································································· 328
1. 의 의 / 328 2. 요 건 / 329
3. 증거보전의 절차 / 330 4. 증거보전 후의 절차 / 331
Ⅲ. 참고인에 대한 증인신문청구제도 ·························································· 331
1. 의 의 / 331 2. 요 건 / 332
3. 증인신문의 절차 / 332 4. 증인신문 후의 조치 / 333
[§21] 감정인의 감정을 위한 강제처분 ··································································· 334
Ⅰ. 감정유치 ···································································································· 334
1. 의 의 / 334 2. 법적 성질 / 334
3. 요 건 / 335 4. 감정유치의 절차 / 335
5. 유치기간과 장소의 변경 / 336
6. 감정유치의 효력으로서 구속규정의 준용 / 337
Ⅱ. 감정에 필요한 처분 ·················································································· 337
제2장 ┃ 수사의 종결과 공소제기
[§22] 수사의 종결 ····································································································· 338
Ⅰ. 서 론 ······································································································· 338
1. 의 의 / 338 2. 종 류 / 338
3. 피해자 등에 대한 통지 / 340
Ⅱ. 불기소처분 ································································································ 341
1. 종 류 / 341 2. 효 과 / 344
Ⅲ. 불기소처분에 대한 불복 ·········································································· 345
1. 재정신청과 기소강제절차 / 345 2. 검찰항고 / 346
3. (고소·고발 이외의 자에 의한) 헌법소원 / 347
[§23] 검사에 의한 공소제기 ···················································································· 350
Ⅰ. 검사의 공소권 ··························································································· 350
1. 공소권론 / 350 2. 공소권 남용론 / 352
Ⅱ. 공소제기의 기본원칙 ··············································································· 357
1. 국가소추주의 / 357 2. 기소독점주의 / 357
3. 기소편의주의 / 359
Ⅲ. 재정신청과 기소강제절차 ······································································· 364
1. 서 론 / 364 2. 절차의 내용 / 365
3. 재정신청에 대한 지방검찰청 검사장 또는 지청장의 처리 / 368
4. 고등법원의 심판 / 368
5. 검사의 공소제기와 공소유지 / 375
6. 재정신청사건 기록의 열람·등사 제한 / 375
7. 재정신청의 비용부담 등 / 376
[§24] 공소제기의 방식과 효과 ················································································ 376
Ⅰ. 공소장 제출의 서면주의 ·········································································· 376
1. 공소장의 제출 / 376 2. 첨부서류 / 377
Ⅱ. 공소장의 기재사항 ··················································································· 377
1. 필요적 기재사항 / 377 2. 임의적 기재사항 / 382
Ⅲ. 공소장일본주의 ························································································ 386
1. 서 / 386 2. 내 용 / 388
3. 적용범위 / 391 4. 위반의 효과 / 392
5. 관련문제 / 393
Ⅳ. 공소제기의 효과 ······················································································· 394
1. 소송계속(訴訟係屬) / 394 2. 공소시효의 정지 / 395
3. 심판범위의 한정 / 395
[§25] 공소시효와 공소제기 이후의 수사 ······························································· 400
Ⅰ. 공소시효제도 ···························································································· 400
1. 의 의 / 400 2. 본 질 / 400
3. 공소시효의 기간 / 401 4. 공소시효의 정지 / 405
5. 공소시효의 완성 / 408 6. 공소시효와 소급입법의 문제 / 409
Ⅱ. 공소제기 후의 수사 ·················································································· 410
1. 필요성과 한계 / 410 2. 공소제기 후의 강제수사 / 410
3. 공소제기 후의 임의수사 / 413
제3편 각론(2): 公判節次論
제1장 ┃ 정식재판의 공판절차
[§26] 공판절차의 기본원칙 ····················································································· 419
Ⅰ. 공판절차와 공판중심주의 ······································································· 419
1. 공판절차의 의의 / 419 2. 공판중심주의의 의의 / 419
Ⅱ. 공판중심주의의 내용 ··············································································· 420
1. 공개주의 / 420 2. 구두변론주의 / 421
3. 직접주의 / 423 4. 집중심리주의(계속심리주의) / 423
[§27] 심판의 대상과 공소장변경제도 ···································································· 424
Ⅰ. 심판의 대상 ······························································································· 424
1. 의 의 / 424 2. 학설의 대립 / 425
Ⅱ. 공소사실의 동일성 ··················································································· 427
1. 단일성과 동일성의 관계 / 427 2. 동일성에 관한 이론의 대립 / 428
Ⅲ. 공소장변경제도 ························································································ 432
1. 의의 및 구별개념 / 432 2. 공소장변경의 한계(허용범위) / 436
3. 공소장변경의 필요성 / 438 4. 공소장변경의 절차 / 448
5. 항소심에서의 특수문제: 친고죄의 축소사실로 변경된 경우
고소취소의 효과와 공소장변경의 필요성 / 452
[§28] 공판준비절차, 증거개시제도, 기타 공판절차의 내용 ································· 453
Ⅰ. 의견서제출제도 ························································································ 453
Ⅱ. 증거개시제도 ···························································································· 454
1. 의 의 / 454
2. 검사에 대한 (피고인·변호인에 의한) 증거개시의 청구 / 455
3. 피고인 또는 변호인에 대한 (검사에 의한) 증거개시의 청구 / 460
Ⅲ. 공판준비절차 ···························································································· 461
1. 공판준비절차의 의의 / 461
2. 새로 도입된 쟁점정리를 위한 공판 전 준비절차의 내용 / 462
3. 종래부터 내려오던 공판준비절차의 내용 / 465
4. 공판기일 전의 증거조사와 공무소에의 조회 / 466
Ⅳ. 공판정의 구성 ··························································································· 466
1. 소송관계인의 출석 / 466 2. 피고인의 출석 / 469
Ⅴ. 소송지휘권 ································································································ 473
1. 의 의 / 473 2. 소송지휘권의 내용 / 473
3. 소송지휘권의 행사 / 474
Ⅵ. 법정경찰권 ································································································ 474
1. 의 의 / 474 2. 내 용 / 474
3. 한 계 / 475
Ⅶ. 공판기일의 절차 ······················································································· 475
1. 모두절차 / 475 2. 사실심리절차 / 477
3. 판결선고 절차 / 483
[§29] 공판절차에서의 구체적 소송행위 ································································ 484
Ⅰ. 증인신문 ···································································································· 484
1. 증인신문의 의의 / 484 2. 증인의 의의와 증인적격 / 484
3. 증인의 의무와 권리 / 489 4. 증인신문의 방법 / 496
5. 피해자의 진술권과 기타의 지위 / 501
Ⅱ. 감정(통역, 번역) ···································································································· 504
1. 감정의 의의 / 504 2. 감정의 절차 / 504
3. 통역(通譯)과 번역(飜譯) / 505
Ⅲ. 검 증 ········································································································ 505
1. 의 의 / 505 2. 요 건 / 506
3. 절 차 / 506 4. 검증조서 / 507
[§30] 공판절차의 특칙 ····························································································· 507
Ⅰ. 간이공판절차 ···························································································· 507
1. 의 의 / 507 2. 간이공판절차개시의 요건 / 507
3. 간이공판절차의 개시결정과 절차 / 511
4. 간이공판절차의 특칙 / 511 5. 간이공판절차의 취소 / 512
Ⅱ. 공판절차의 정지와 갱신 ·········································································· 513
1. 공판절차의 정지 / 513 2. 공판절차의 갱신(更新) / 515
Ⅲ. 변론의 병합, 분리, 재개 ··········································································· 517
1. 변론의 분리와 병합 / 517 2. 변론의 재개 / 517
제2장 ┃ 형사증거론
[§31] 형사증거법의 기본구조와 기초개념 ···························································· 518
Ⅰ. 형사소송에 있어서의 증거법 ·································································· 518
Ⅱ. 증거의 의의와 종류 ·················································································· 518
1. 증거의 의의 / 518 2. 증거의 종류 / 519
[§32] 형사증거법의 기본원칙 ················································································· 524
Ⅰ. 증거재판주의 ···························································································· 524
1. 의 의 / 524 2. 엄격한 증명의 대상인 사실 / 525
3. 자유로운 증명의 대상인 사실 / 527
4. 사실의 인정(증명), 증거 및 증거조사 / 528
5. 증명이 필요하지 아니한 사실(불요증사실) / 530
6. 증거재판주의에 대한 위반 / 531
Ⅱ. 거증책임 ···································································································· 532
1. 의 의 / 532 2. 거증책임의 분배 / 534
3. 거증책임의 전환 / 536
Ⅲ. 자유심증주의 ···························································································· 538
1. 서 / 538 2. 자유심증주의의 내용 / 539
3. 자유심증주의의 예외와 제한 / 544
[§33] 자백의 증거능력과 증명력에 관한 특별원칙 ·············································· 545
Ⅰ. 서 론 ······································································································· 545
1. 자백의 의의 / 545 2. 자백의 양면적 성격 / 546
3. 자백에 대한 법제의 변천 / 547
Ⅱ. 자백의 증거능력에 관한 자백의 임의성법칙 ········································ 547
1. 의 의 / 547 2. 자백배제법칙의 이론적 근거 / 547
3. 자백의 임의성법칙의 적용범위 / 550
4. 관련문제 / 554 5. 자백배제법칙의 효과 / 555
Ⅲ. 자백의 증명력에 관한 자백의 보강법칙 ················································ 557
1. 자백 보강법칙의 의의와 필요성 / 557
2. 보강법칙의 적용범위 / 557
3. 공범자 자백의 증거능력과 증명력 / 558
4. 보강증거의 적격 / 564 5. 보강증거의 범위 / 568
6. 기 타 / 571
[§34] 위법수집증거배제법칙 ·················································································· 571
Ⅰ. 의의와 입법례 ··························································································· 572
Ⅱ. 우리나라에서의 발전과 근거 ·································································· 572
Ⅲ. 법칙의 적용범위 ······················································································· 573
1. 배제의 기준 / 573 2. 개별적 유형 / 575
3. 자백(진술)의 임의성 법칙의 포함여부 / 575
4. 선의(善意)의 예외이론 / 576 5. 독수(毒樹)의 과실(果實)이론 / 577
Ⅳ. 증거능력의 절대적 배제 효과 ································································· 581
1. 위법수집증거와 증거동의 / 581
2. 위법수집증거와 탄핵증거 / 582
3. 예외적 증거능력 인정사유에 대한 거증책임의 문제 / 582
Ⅴ. 관련문제 ···································································································· 583
1. 사인의 경우 / 583 2. 증거배제의 주장적격 / 585
[§35] 전문법칙에 관한 일반론 ················································································ 586
Ⅰ. 의 의 ······································································································· 586
1. 전문증거의 의의 / 586 2. 전문법칙의 의의 / 586
Ⅱ. 전문법칙의 이론적 근거 ·········································································· 587
1. 영미법적 근거 / 587 2. 대륙법적 근거 / 587
3. 우리나라 수사 및 공판절차의 구조비교를 통한 소결 / 588
Ⅲ. 전문법칙의 적용범위 ··············································································· 589
1. 요증사실과 관련된 진술증거 / 589
2. 언어적 행동 / 590 3. 지시행동에 대한 진술(증언) / 590
4. 탄핵증거로 사용할 경우와 증거로 함에 동의한 경우 / 590
Ⅳ. 전문법칙의 예외에 관한 일반이론 ························································· 590
1. 예외인정의 원칙적 기준 / 590
2. 우리 형사소송법의 관련규정 개관 / 591
3. 개정 입법론 / 593
[§36] 전문서류의 증거능력 ····················································································· 594
Ⅰ. 법원 또는 법관의 면전조서 ····································································· 594
1. 제311조의 취지와 성질 / 594
2. 공판준비 또는 공판기일에 피고인의 진술을 기재한 조서 / 595
3. 공판준비 또는 공판기일에 피고인 아닌 자의 진술을 기재한 조서 / 595
4. 당해 사건의 공판준비조서와 공판조서 / 596
5. 증거보전절차와 증인신문절차에서 작성한 조서 / 597
Ⅱ. 피의자신문조서 ························································································ 597
1. 의 의 / 597 2. 검사작성의 피의자신문조서 / 599
3. 사법경찰관이 작성한 피의자신문조서 / 609
Ⅲ. 진술조서의 증거능력 ··············································································· 614
1. 진술조서의 의의 / 614
2. 참고인진술조서의 증거능력 / 614
3. 전문진술이 조서에 기재된 경우(즉 재전문진술의 경우) / 617
4. 피고인 또는 증인에 대한 진술조서의 경우 / 619
Ⅳ. 진술서의 증거능력 ··················································································· 620
1. 의 의 / 620
2. 수사과정에서 작성된 진술서의 증거능력 / 621
Ⅴ. 검증조서의 증거능력 ··············································································· 622
1. 의 의 / 622 2. 법원 또는 법관의 검증조서 / 622
3. 수사기관(검사 또는 사법경찰관)의 검증조서 / 624
4. 실황조사서의 증거능력 / 627
Ⅵ. 수사과정 이외에서 작성된 진술서와 기타 진술기재서의 증거능력 ·· 629
1. 제313조 제1항과 제2항의 적용 / 629
2. 수사과정 이외에서 작성된 진술서의 증거능력 / 630
3. 기타 진술기재서의 증거능력 / 631
Ⅶ. 감정서의 증거능력 ··················································································· 632
1. 의 의 / 632 2. 감정인신문조서 / 632
3. 감정인이 제출한 감정서 / 633
4. 감정수탁자가 제출한 감정서 / 633
5. 감정서에 기재된 진술의 증거능력 / 634
[§37] 비교적 진정한 모습을 지닌 전문법칙의 예외규정 ····································· 635
Ⅰ. 형사소송법 제314조에 의한 증거능력의 인정 ······································ 635
1. 입법취지 / 635 2. 적용요건 / 636
3. 적용범위 / 642
4. 증거능력에 있어 제314조 적용의 경우 증명력 제한 / 644
Ⅱ. 형사소송법 제315조의 당연히 증거능력이 있는 서류 ·························· 645
1. 법 규정 / 645 2. 적용범위 / 645
Ⅲ. 법정에서의 전문진술(증언)에 대한 전문법칙의 예외 ··························· 648
1. 서 설 / 648 2. 피고인 아닌 자의 전문진술 / 648
3. 피고인의 전문진술 / 652 4. 재전문진술의 경우 / 653
Ⅳ. 진술의 임의성 ··························································································· 653
Ⅴ. 당사자의 동의와 증거능력 ······································································ 654
1. 서 론 / 654 2. 증거동의의 방법 / 656
3. 동의의 의제 / 660 4. 증거동의의 효과 / 662
5. 증거동의의 철회와 취소 / 664
Ⅵ. 탄핵증거 ···································································································· 666
1. 서 론 / 666 2. 탄핵증거의 범위 / 666
3. 탄핵의 범위 / 669 4. 탄핵의 대상 / 669
5. 탄핵증거의 허용범위 / 671 6. 관련문제 / 673
[§38] 특수한 (과학적) 증거방법에 대한 전문법칙의 적용 여부 ··························· 675
Ⅰ. 녹음테이프의 증거능력 ··········································································· 675
1. 녹음테이프의 성격 / 675
2. 위법수집증거배제법칙과 녹음테이프 / 676
3. 전문법칙의 적용 / 677
Ⅱ. 사진의 증거능력 ······················································································· 681
1. 사진의 성격 / 681
2. 위법수집증거배제법칙과 사진 / 681
3. 전문법칙 등의 적용 / 681
Ⅲ. 비디오테이프, CCTV, 전자기록, 휴대전화기 문자정보 등
기타 과학적 증거자료의 증거능력 ························································· 684
1. 비디오테이프와 CCTV / 684 2. 전자기록 / 684
3. 휴대전화기 저장정보 / 686
Ⅳ. 거짓말탐지기 검사결과의 증거능력 ······················································ 687
1. 거짓말탐지기의 의의 / 687 2. 증거능력 / 688
3. 관련문제 / 688
[§39] 공판조서의 증거능력과 증명력 ···································································· 691
Ⅰ. 공판조서의 증거능력 ··············································································· 691
Ⅱ. 공판조서의 배타적 증명력 ······································································ 692
1. 서 론 / 692
2. 배타적 증명력이 인정되는 범위 / 693
3. 배타적 증명력이 있는 공판조서 / 695
제3장 ┃ 재 판
[§40] 재판에 대한 일반론 ························································································ 697
Ⅰ. 재판의 의의와 종류 ·················································································· 697
1. 재판의 의의 / 697 2. 재판의 종류 / 697
Ⅱ. 재판의 성립과 재판서의 작성 ································································· 699
1. 재판의 성립 / 699 2. 재판서의 작성 / 700
[§41] 종국재판 ·········································································································· 701
Ⅰ. 유죄의 판결 ······························································································· 701
1. 의 의 / 701 2. 주 문 / 702
3. 유죄판결에 명시할 이유 / 703
Ⅱ. 무죄판결 ···································································································· 706
1. 의 의 / 706 2. 무죄사유 / 706
3. 무죄판결의 공시 / 707
4. 형사보상청구권과 국가의 소송비용 보상의무 / 707
Ⅲ. 관할위반의 판결 ······················································································· 708
1. 의 의 / 708 2. 관할위반판결의 이유 / 708
Ⅳ. 공소기각의 재판 ······················································································· 708
1. 의 의 / 708 2. 공소기각의 결정 / 708
3. 공소기각의 판결 / 709
Ⅴ. 면소의 판결 ······························································································· 710
1. 본 질 / 710 2. 면소판결의 사유 / 711
3. 관련문제 / 712
Ⅵ. 종국재판의 부수효과 ··············································································· 712
1. 구속에 미치는 효과 / 712 2. 압수물의 처분관계 / 713
3. 가납의 재판 / 713
[§42] 재판의 확정과 효력 ························································································ 713
Ⅰ. 재판의 확정 ······························································································· 713
1. 의 의 / 713 2. 재판확정의 시기 / 713
Ⅱ. 재판의 확정력 ··························································································· 714
1. 형식적 확정력 / 714 2. 내용적 확정력 / 715
3. 기판력과 일사부재리의 효력 / 716
4. 내용적 구속력 / 717 5. 일사부재리의 효력 / 718
6. 확정력의 배제 / 725
[§43] 소송비용 ·········································································································· 725
Ⅰ. 의 의 ········································································································ 725
Ⅱ. 소송비용의 부담자 ··················································································· 725
1. 피 고 인 / 725 2. 고소인, 고발인 / 726
3. 상소 또는 재심청구자 / 726
Ⅲ. 재판절차 ···································································································· 726
1. 재판으로 소송절차가 종료되는 경우 / 726
2. 재판에 의하지 아니하고 소송절차가 종료되는 경우 / 726
3. 산정방법 / 727
Ⅳ. 무죄판결과 비용보상 ··············································································· 727
제4편 각론(3): 상소절차, 비상구제절차, 특별절차 및 기타
제1장 ┃ 상 소
[§44] 상소에 관한 일반론 ························································································ 731
Ⅰ. 상소의 의의와 종류 ·················································································· 731
1. 상소의 의의 / 731 2. 상소의 종류 / 731
Ⅱ. 상 소 권 ····································································································· 732
1. 상소권자 / 732
2. 상소권의 발생과 소멸, 그리고 상소기간 / 732
3. 상소권의 회복 / 733
[§45] 상소의 이익 ····································································································· 735
Ⅰ. 서 설 ······································································································· 735
1. 의 의 / 735 2. 법적 근거 / 735
Ⅱ. 검사의 상소이익 ······················································································· 736
1. 의 의 / 736 2. 피고인에게 불이익한 상소 / 736
3. 피고인의 이익을 위한 상소 / 737
Ⅲ. 피고인의 상소이익 ··················································································· 738
1. 상소이익에 대한 판단기준 / 738 2. 상소이익의 구체적 내용 / 739
3. 상소이익이 없는 경우의 재판 / 742
[§46] 상소의 제기, 포기 및 취하 ············································································· 743
Ⅰ. 상소의 제기 ······························································································· 743
1. 상소제기의 방법 / 743 2. 상소제기의 효력 / 743
Ⅱ. 상소의 포기·취하 ··················································································· 744
1. 상소의 포기·취하의 의의 / 744 2. 상소의 포기·취하권자 / 744
3. 상소의 포기·취하의 방식 / 744 4. 상소의 포기·취하의 효력 / 745
[§47] 일부상소 ·········································································································· 747
Ⅰ. 의 의 ········································································································ 747
1. 구별개념 / 747 2. 법적 근거 / 747
Ⅱ. 일부상소의 허용범위(즉, 가분과 불가분의 효력이 인정되는 경우) ············ 747
1. 수죄의 경우 / 747 2. 일죄의 일부에 대한 상소 / 750
3. 주형과 일체가 된 부가형 / 751
Ⅲ. 일부상소의 방식 ······················································································· 752
1. 일부상소의 특정 / 752 2. 불특정의 경우 / 752
Ⅳ. 상소심의 심판범위 ··················································································· 753
1. 일반원칙 / 753
2. 피고인만 유죄부분에 일부상소를 하고 상소이유가 인정되는 경우 / 753
3. 검사만 무죄부분에 일부상소를 하고 상소이유가 인정되는 경우 / 754
4. 쌍방이 일부상소를 하였으나, 검사의 상소만 이유 있는 경우 / 755
Ⅴ. 죄수의 판단이 다른 경우 ········································································· 756
1. 피고인만 유죄부분에 대하여 상소한 경우(무죄부분은 확정된 경우) / 756
2. 검사만 무죄부분에 대하여 상소한 경우(유죄부분은 확정된 경우) / 757
Ⅵ. 관련문제―구속취소의 가부 ···································································· 757
[§48] 불이익변경금지의 원칙 ················································································· 758
Ⅰ. 서 설 ········································································································ 758
1. 의 의 / 758 2. 이론적 근거 / 758
Ⅱ. 불이익변경금지원칙의 적용범위 ··························································· 759
1. 피고인이 상소한 사건 / 759
2. 피고인을 위하여 상소한 사건 / 760
3. 상소한 사건 / 761
Ⅲ. 불이익변경금지원칙의 내용 ··································································· 764
1. 불이익변경금지의 대상 / 764 2. 불이익변경의 판단기준 / 766
3. 형의 경중의 비교 / 767
Ⅳ. 불이익변경금지 원칙의 위반의 효과 ····················································· 772
[§49] 파기판결의 구속력 ························································································· 772
Ⅰ. 서 설 ······································································································· 772
1. 의 의 / 772 2. 인정근거 / 773
Ⅱ. 법적 성질 ··································································································· 773
1. 견해의 대립 / 773 2. 소 결 / 773
Ⅲ. 구속력의 범위 ··························································································· 773
1. 구속력이 미치는 심급법원 / 773
2. 기속력이 발생하는 판단의 범위 / 774
3. 구속력의 배제 / 775
[§50] 구체적 상소방법 ····························································································· 776
Ⅰ. 항 소 ······································································································· 776
1. 항소심의 구조 / 776 2. 항소이유 / 778
3. 항소심의 절차 / 780 4. 항소심의 심리 / 782
Ⅱ. 상 고 ······································································································· 785
1. 상고심의 구조 / 785 2. 상고이유 / 786
3. 상고심의 절차 / 787 4. 상고심 개선을 위한 입법론 / 790
Ⅲ. 비약적 상고 ······························································································· 791
1. 의 의 / 791 2. 비약적 상고의 이유 / 791
Ⅳ. 상고심판결의 정정 ··················································································· 791
1. 의 의 / 791 2. 정정의 사유 / 792
3. 정정의 절차 / 792
Ⅴ. 항 고 ······································································································· 792
1. 서 론 / 792 2. 항고심의 절차 / 793
3. 준 항 고 / 795
제2장 ┃ 비상구제절차
[§51] 재 심 ·············································································································· 799
Ⅰ. 서 설 ······································································································· 799
1. 재심의 의의 / 799 2. 재심의 취지(목적) / 799
3. 재심절차의 구조 / 800
Ⅱ. 재심의 대상 ······························································································· 800
Ⅲ. 재심사유 ···································································································· 802
1. 유죄의 확정판결에 대한 재심이유 / 802
2. 상소기각의 확정판결에 대한 재심이유 / 811
3. 확정판결에 대신하는 증명 / 812
Ⅳ. 재심의 절차 ······························································································· 814
1. 재심의 관할 / 814 2. 재심의 청구 / 814
3. 재심청구에 대한 심판 / 815 4. 재심의 심판절차 / 817
[§52] 비상상고 ·········································································································· 819
Ⅰ. 의의 및 기능 ······························································································ 819
Ⅱ. 비상상고의 대상 ······················································································· 819
Ⅲ. 비상상고의 사유 ······················································································· 819
1. 법령위반 / 819 2. 사실오인에 따른 법령위반 / 820
Ⅳ. 비상상고의 절차 ······················································································· 821
1. 비상상고의 신청 / 821 2. 비상상고의 심리 / 822
Ⅴ. 비상상고의 판결 ······················································································· 822
1. 기각판결 / 822 2. 파기판결 / 822
3. 비상상고판결의 효력 / 823
제3장 ┃ 특별절차와 재판의 집행 기타
[§53] 국민의 형사재판 참여에 관한 법률 에 따른 국민참여재판절차 ············· 824
Ⅰ. 의 의 ········································································································ 824
Ⅱ. 대상사건 및 관할 ····················································································· 825
1. 대상사건 / 825 2. 공소장 변경 / 829
3. 관할(참여심급) / 830
Ⅲ. 배심원의 수, 자격 및 선정 ······································································· 831
1. 배심원의 수 / 831 2. 배심원의 자격 / 832
3. 배심원의 선정 / 834
Ⅳ. 국민참여재판의 공판절차 ······································································· 840
1. 공판준비절차 / 840 2. 공판절차 / 842
Ⅴ. 판결절차 ···································································································· 848
1. (변론종결 후) 재판장의 설명(=법관의 설시) / 848
2. 배심원의 평의·평결 등 / 848 3. 판결의 선고 / 850
4. 국민참여재판에 대한 상소의 인정여부 / 851
Ⅵ. 기 타 ········································································································ 853
1. 배심원 등의 보호를 위한 조치 / 853
2. 벌 칙 / 855
[§54] 약식절차 ·········································································································· 856
Ⅰ. 서 론 ······································································································· 856
1. 약식절차의 의의 / 856 2. 이용실태 / 856
Ⅱ. 약식명령의 청구 ······················································································· 856
1. 청구권자와 청구의 대상 / 856 2. 청구의 방식 / 857
3. 공소제기와 공소취소의 문제 / 857
Ⅲ. 약식절차의 심판 ······················································································· 858
1. 법원의 심사 / 858 2. 공판절차에의 회부 / 858
3. 약식명령 / 859
Ⅳ. 정식재판의 청구 ······················································································· 861
1. 청구의 절차 / 861 2. 법원의 재판 / 862
Ⅴ. 문제점과 입법론 ······················································································· 864
1. 문 제 점 / 864 2. 입 법 론 / 865
[§55] 즉결심판절차 ·································································································· 866
Ⅰ. 서 론 ······································································································· 866
1. 즉결심판절차의 의의 / 866 2. 이용실태 / 866
Ⅱ. 즉결심판의 대상과 청구 ·········································································· 866
1. 대 상 / 866 2. 청 구 / 867
Ⅲ. 즉결심판법원의 심리와 재판 ·································································· 869
1. 형사소송법의 준용 / 869 2. 특 칙 / 869
3. 심리절차 / 871 4. 즉결심판의 효력과 형집행 / 873
Ⅳ. 정식재판의 청구와 심판 ·········································································· 873
1. 청구권자 / 873 2. 청구절차 / 874
3. 관련기관의 조치 / 874 4. 재 판 / 875
[§56] 배상명령절차 ·································································································· 875
Ⅰ. 의 의 ······································································································· 875
Ⅱ. 배상명령의 요건 ······················································································· 875
1. 배상명령의 대상 / 875 2. 배상명령의 범위 / 876
Ⅲ. 배상명령의 절차 ······················································································· 876
1. 배상명령의 신청 / 876
2. 배상신청에 대한 조치와 재판 / 877
3. 배상명령에 대한 불복 / 878 4. 배상명령의 효력 / 878
Ⅳ. 관련제도: 민사상 다툼에 관한 형사소송절차에서의 화해제도의
도입 ············································································································ 879
1. 의 의 / 879 2. 신 청 / 879
3. 화해기록 / 879
4. 화해절차 당사자 등에 관한 민사소송법 의 준용 / 880
5. 집행문부여의 소 등에 대한 관할 특칙 / 880
6. 위임입법 / 880
[§57] 소년형사(보호)절차 ························································································· 881
Ⅰ. 서 론 ······································································································· 881
1. 소 년 법 / 881 2. 소년의 의의 / 881
Ⅱ. 소년형사절차의 특칙 ··············································································· 881
1. 검사선의주의와 조사제도 / 881
2. 조건부 기소유예제도의 도입 / 882
3. 사건의 송치 / 882 4. 소송조건에 관한 특칙 / 883
5. 심리에 관한 특칙 / 884 6. 재판에 있어서의 특칙 / 884
7. 형의 집행에 있어서의 특칙 / 885
Ⅲ. 기타 사항 ··································································································· 885
1. 소년부 송치시의 신병처리 / 885
2. 자격에 관한 법령의 적용 / 886
3. 비행 예방 / 886
[§58] 재판의 집행과 형사보상 ················································································ 886
Ⅰ. 재판의 집행 ······························································································· 886
1. 집행의 일반원칙 / 886 2. 형의 집행 / 887
3. 재판집행에 대한 의의와 이의신청 / 889
4. 기타의 사항 / 890
Ⅱ. 형사보상제도 ···························································································· 892
1. 형사보상의 의의 / 892 2. 형사보상의 요건 / 892
3. 형사보상의 내용 / 894 4. 형사보상의 절차 / 895
찾아보기 ·········································································································· 898
제1장 ┃ 형사소송(법)에의 입문론
[§1] 형사소송(법)의 기초이론 ····················································································· 3
Ⅰ. 형사소송(법)의 의의 및 특징 ······································································ 3
1. 형사소송의 의의 / 3 2. 민사소송과의 차이 / 4
3. 절차의 구분과 통합 / 4
Ⅱ. 형사소송절차의 개관 ·················································································· 5
1. 정식절차 / 5 2. 경미사건에 대한 형사절차 / 9
Ⅲ. 형사소송법에 대한 기타사항 ···································································· 10
1. 형사소송법의 성격 / 10 2. 형사소송법의 법원(法源) / 11
3. 형사소송법의 적용범위 / 11 4. 형사소송법의 역사 / 12
[§2] 형사소송(법)의 지도이념 ··················································································· 14
Ⅰ. 실체적 진실(발견)주의 ··············································································· 14
1. 의 의 / 14 2. 내 용 / 15
3. 한 계 / 16
Ⅱ. 적정절차의 원리 ························································································· 17
1. 의 의 / 17
2. 핵심적 파생원칙으로서의 무죄추정의 원칙 / 18
3. 구현내용 / 19
Ⅲ. 신속한 재판의 원칙 ···················································································· 21
1. 의 의 / 21 2. 구현내용 / 22
3. 침해와 구제방법 / 24
[§3] 형사소송의 기본구조 ························································································· 24
Ⅰ. 규문(糾問)주의와 탄핵(彈劾)주의 ······························································· 24
Ⅱ. 당사자주의와 직권주의 ············································································· 25
1. 당사자주의의 내용 / 25 2. 직권주의의 내용 / 26
Ⅲ. 우리 형사소송법의 소송구조 ···································································· 26
1. 당사자주의와 직권주의의 조화 / 26
2. 당사자주의적 요소 / 27 3. 직권주의적 요소 / 28
제2장 ┃ 소송주체론
[§4] 법 원 ················································································································· 29
Ⅰ. 수사절차와 공판절차에서의 주체와 법원(법관) ·········································· 29
Ⅱ. 법원의 의의와 종류 ···················································································· 30
1. 법원의 의의 / 30 2. 법원의 종류 / 31
Ⅲ. 법원의 관할 ································································································ 32
1. 관할의 의의 / 32 2. 법정관할(1)/고유관할 / 33
3. 법정관할(2)/관련사건의 관할 / 34
4. 재정관할 / 36 5. 관할의 경합 / 38
6. 관할권 부존재의 효과 / 39 7. 사건의 이송 / 39
[§5] 법관의 제척·기피·회피 ·················································································· 43
Ⅰ. 의의 및 적용대상 ······················································································· 43
Ⅱ. 법관의 제척 ································································································ 44
1. 제척사유 / 44 2. 제척의 효과 / 47
Ⅲ. 법관의 기피 ································································································ 47
1. 기피사유 / 47 2. 심판절차 / 48
3. 불복여부 / 50
Ⅳ. 회 피 ·········································································································· 50
Ⅴ. 법원직원(통역인)에 대한 준용 ··································································· 50
[§6] 검 사 ················································································································· 51
Ⅰ. 검사의 의의 ································································································ 51
1. 연 혁 / 51 2. 검사의 성격 / 51
3. 검사의 자격과 신분보장 / 52 4. 검 찰 청 / 52
Ⅱ. 검사의 조직과 구조 ···················································································· 52
1. 검사동일체의 원칙 / 53 2. 법무부장관의 지휘·감독권 / 55
Ⅲ. 검사의 소송법상 지위 ················································································ 56
1. 다양한 지위 / 56 2. 수사의 주재자(주체) / 56
3. 공소권의 주체 / 57 4. 재판의 집행기관 / 58
5. 공익의 대표자 / 59
[§7] 피 고 인 ················································································································ 60
Ⅰ. (공동)피고인의 의의 ··················································································· 60
Ⅱ. 피고인의 특정 ···························································································· 60
1. 피고인 특정의 기준 / 60 2. 성명모용의 경우 / 61
3. 위장출석의 경우 / 64
Ⅲ. 피고인의 소송법상 지위 ············································································ 66
1. 서 론 / 66 2. 당사자로서의 지위 / 67
3. 증거방법으로서의 지위 / 68 4. 절차의 대상으로서의 지위 / 70
Ⅳ. 당사자능력과 소송능력 ············································································· 70
1. 당사자능력 / 70 2. 소송능력 / 72
Ⅴ. 피고인(피의자)의 인권 내지 방어권 보장을 위해 특별히 규정된
형사소송법상의 권리 ················································································· 74
1. 개 관 / 74 2. 진술거부권 / 76
3. 접견·교통권 / 83
[§8] 변 호 인 ················································································································ 84
Ⅰ. 변호인제도 ·································································································· 84
Ⅱ. 선 임 ·········································································································· 85
1. 사선변호인 / 85 2. 국선변호인 / 87
Ⅲ. 변호인의 지위 ···························································································· 94
1. 보호자로서의 지위 / 94 2. 공익적 지위 / 95
Ⅳ. 변호인의 권한 ···························································································· 96
1. 대 리 권 / 96 2. 고 유 권 / 97
3. 변호인 의뢰인 사이의 특권(Attorney-Client Privilege) / 97
Ⅴ. (피고인·변호인의) 기록 열람·복사권 ······················································ 99
1. 법원이 보관하는 서류 등에 대한 열람·복사 / 99
2. 형사소송법에 의해 새로 도입된 증거개시제도 / 101
Ⅵ. (피의자·피고인·변호인의) 접견교통권 ··················································· 101
1. 의 의 / 101
2. 변호인의 접견교통권과 변호인과의 접견교통권 / 102
3. 비변호인과의 접견교통권 / 105
4. 접권교통권의 침해에 대한 구제 / 107
Ⅶ. 변호인의 피의자신문참여권 내지 피의자의 변호인참여신청권 ········ 108
1. 내 용 / 108 2. 불 복 / 110
[§9] 기타 소송관련자 ······························································································· 111
Ⅰ. 보 조 인 ····································································································· 111
Ⅱ. 배 심 원 ····································································································· 111
Ⅲ. 피 해 자 ····································································································· 113
1. 수사상 피해자의 지위 / 113
2. 공판절차에서의 피해자의 지위 / 115
3. 관련제도 / 116
제3장 ┃ 소송행위론과 소송절차 및 소송조건
[§10] 소송행위론 ······································································································ 117
Ⅰ. 일 반 론 ····································································································· 117
1. 의의 및 특징 / 117 2. 소송행위의 종류 / 117
3. 소송행위의 일반적 요소 / 119 4. 소송서류와 송달 / 122
Ⅱ. 소송행위의 가치판단 ··············································································· 132
1. 의 의 / 132 2. 소송행위의 성립·불성립 / 133
3. 소송행위의 유효·무효 / 134 4. 적법·부적법 / 140
5. 이유유·이유무 / 140
[§11] 소송절차와 소송조건 ····················································································· 140
Ⅰ. 소송의 실체면과 절차면 ·········································································· 140
1. 소송의 실체면 / 140 2. 소송의 절차면 / 141
Ⅱ. 소송절차의 본질 ······················································································· 141
1. 법률관계설 / 142 2. 법률상태설 / 142
3. 이면설 / 142
Ⅲ. 소송절차이분론 ························································································ 142
Ⅳ. 소송조건 ···································································································· 143
1. 의 의 / 143 2. 소송조건의 종류 / 144
3. 소송조건의 조사와 부존재의 효과 / 145
4. 소송조건의 추완 / 147
제2편 각론(1): 搜査節次論
제1장 ┃ 수사의 개시와 진행
[§12] 수사입문 ·········································································································· 151
Ⅰ. 수사의 의의 및 수사기관 ········································································· 151
1. 수사의 의의 / 151 2. 수사기관 / 153
Ⅱ. 수사 구조론 ······························································································· 159
1. 탄핵적 수사관과 소송적 수사관 / 159
2. 비 판 / 159
Ⅲ. 수사의 조건 ······························································································· 160
1. 수사의 필요성 / 160 2. 수사의 상당성 / 162
[§13] 수사의 단서 ····································································································· 168
Ⅰ. 의의 및 종류 ······························································································ 168
Ⅱ. 변사자의 검시 ··························································································· 170
Ⅲ. 불심검문 또는 직무질문 ·········································································· 170
1. 의 의 / 170 2. 불심검문의 대상 / 171
3. 불심검문의 방법 / 172 4. 불심검문시의 소지품검사 / 177
5. 자동차 검문 / 180
6. 주민등록법에 의한 주민등록증의 제시요구와 동행요구 / 182
[§14] 고소(고발과 자수 포함) ································································································ 182
Ⅰ. 고소의 의의 ······························································································· 182
Ⅱ. 고소권자 ···································································································· 183
1. 피해자와 법정대리인 / 183 2. 기타 고소할 수 있는 자 / 185
Ⅲ. 고소의 절차 ······························································································· 186
1. 고소의 방법 / 186 2. 고소의 기간 / 187
3. 직계존속에 대한 고소금지 / 188
4. 고소의 취소 / 189 5. 고소의 포기 / 193
Ⅳ. 고소불가분의 원칙 ··················································································· 195
1. 의 의 / 195 2. 주관적 불가분의 원칙 / 195
3. 객관적 불가분의 원칙 / 199
Ⅴ. 고발과 자수 ······························································································· 201
1. 고 발 / 201 2. 자 수 / 202
[§15] 수사의 기본원칙 ····························································································· 203
Ⅰ. 수사방법과 수사원칙 ··············································································· 203
1. 임의수사와 강제수사 / 203
2. 임의수사의 원칙과 강제수사의 예외(규제) / 203
Ⅱ. 실질적 적법성이 문제되는 형식적 임의수사 ········································ 205
1. 임의수사에도 요구되는 비례성의 원칙 / 205
2. 임의동행 / 206 3. 보호실 유치 / 209
4. 승낙수색과 승낙검증 / 210
5. 거짓말탐지기 검사에 의한 수사 / 210
6. 마취분석 / 212 7. 기타 문제되는 수사방법 / 212
Ⅲ. 임의수사와 강제수사의 한계영역 내지 새로운 유형의 강제수사 ······ 216
1. 수사목적의 감청(盜聽) 내지 비밀녹음 / 216
2. 사진촬영(내지 비디오 촬영) / 223
3. 공무소 등에의 조회 / 225
[§16] 임의수사의 종류와 내용 ················································································ 226
Ⅰ. 피의자신문 ································································································ 226
1. 의 의 / 226 2. 절 차 / 226
3. 피의자신문조서의 작성 / 229 4. 피의자진술의 영상녹화 / 229
5. 수사과정의 기록 / 230
6. 장애인 등 특별히 보호를 요하는 자에 대한 특칙 / 230
7. 피의자신문의 법적 규제 / 231
Ⅱ. 피의자 이외의 자에 대한 조사, 특히 참고인 조사 ································ 232
1. 의 의 / 232 2. 조사방법 / 232
3. 조서작성 및 기록 / 234
Ⅲ. 감정, 통역, 번역의 위촉과 전문수사자문위원의 자문 ························· 234
1. 감정, 통역, 번역의 위촉 / 234 2. 전문수사자문위원의 자문 / 235
Ⅳ. 사실조회(공무소 등에의 조회) ············································································ 235
[§17] 대인적 강제처분에 의한 강제수사 ······························································· 236
Ⅰ. 수사절차에서 대인적 강제처분의 기본구조 ········································· 236
Ⅱ. 피의자의 체포제도 ··················································································· 237
1. 체포제도의 개정 / 237
2. 영장에 의한 체포(정식체포, 통상체포) / 237
3. 긴급 체포 / 240 4. 현행범인의 체포 / 246
Ⅲ. 피의자(피고인)의 구속제도 ······································································ 251
1. 의 의 / 251 2. 요 건 / 252
3. 구속의 절차 / 254 4. 관련문제 / 267
Ⅳ. 구속의 집행정지와 실효 ·········································································· 272
1. 구속의 집행정지 / 272 2. 구속의 실효 / 273
[§18] 체포·구속 이후의 석방제도 ········································································· 274
Ⅰ. 석방제도의 개관 ······················································································· 274
Ⅱ. 체포·구속적부심사제도 ········································································ 275
1. 서 론 / 275 2. 심사청구 / 276
3. 법원의 심사 / 277 4. 법원의 결정 / 279
5. 보증금납입조건부 피의자석방제도 / 280
6. 재체포·재구속의 제한 / 282 7. 결정에 대한 불복 / 282
Ⅲ. 보석제도 ···································································································· 283
1. 의 의 / 283 2. 피고인을 위한 보석제도 / 284
3. 수사절차에서의 보증금납입조건부
피의자석방제도(일종의 피의자보석제도) / 292
[§19] 대물적 강제처분에 의한 강제수사 ······························································· 292
Ⅰ. 서 론 ······································································································· 292
1. 의의 및 종류 / 292 2. 요 건 / 292
Ⅱ. 수사상 압수와 수색 ·················································································· 295
1. 의 의 / 295 2. 압수·수색의 대상 / 296
3. 압수·수색의 절차 / 301 4. 압수물의 처리 / 306
Ⅲ. 수사상의 검증 ··························································································· 310
1. 의의 및 절차 / 310 2. 신체검사 / 312
Ⅳ. 대물적 강제처분에서의 영장주의 예외: 긴급압수·수색·검증 ········ 317
1. 체포·구속 목적의 피의자수사(피의자를 찾기 위한 일정한
장소의 수색) / 317
2. 체포현장에서의 압수·수색·검증 / 318
3. 피고인 구속현장에서의 압수·수색·검증 / 321
4. 범행 중 또는 범행 직후의 범죄장소에서의 압수·수색·검증 / 321
5. 긴급체포 이후의 압수·수색·검증 / 323
6. 임의제출한 물건의 압수 / 325
7. 미국 판례에서 인정되는 영장주의의 예외 / 327
[§20] 판사에 대한 강제처분의 청구 ······································································· 328
Ⅰ. 서 론 ······································································································· 328
Ⅱ. 증거보전제도 ···························································································· 328
1. 의 의 / 328 2. 요 건 / 329
3. 증거보전의 절차 / 330 4. 증거보전 후의 절차 / 331
Ⅲ. 참고인에 대한 증인신문청구제도 ·························································· 331
1. 의 의 / 331 2. 요 건 / 332
3. 증인신문의 절차 / 332 4. 증인신문 후의 조치 / 333
[§21] 감정인의 감정을 위한 강제처분 ··································································· 334
Ⅰ. 감정유치 ···································································································· 334
1. 의 의 / 334 2. 법적 성질 / 334
3. 요 건 / 335 4. 감정유치의 절차 / 335
5. 유치기간과 장소의 변경 / 336
6. 감정유치의 효력으로서 구속규정의 준용 / 337
Ⅱ. 감정에 필요한 처분 ·················································································· 337
제2장 ┃ 수사의 종결과 공소제기
[§22] 수사의 종결 ····································································································· 338
Ⅰ. 서 론 ······································································································· 338
1. 의 의 / 338 2. 종 류 / 338
3. 피해자 등에 대한 통지 / 340
Ⅱ. 불기소처분 ································································································ 341
1. 종 류 / 341 2. 효 과 / 344
Ⅲ. 불기소처분에 대한 불복 ·········································································· 345
1. 재정신청과 기소강제절차 / 345 2. 검찰항고 / 346
3. (고소·고발 이외의 자에 의한) 헌법소원 / 347
[§23] 검사에 의한 공소제기 ···················································································· 350
Ⅰ. 검사의 공소권 ··························································································· 350
1. 공소권론 / 350 2. 공소권 남용론 / 352
Ⅱ. 공소제기의 기본원칙 ··············································································· 357
1. 국가소추주의 / 357 2. 기소독점주의 / 357
3. 기소편의주의 / 359
Ⅲ. 재정신청과 기소강제절차 ······································································· 364
1. 서 론 / 364 2. 절차의 내용 / 365
3. 재정신청에 대한 지방검찰청 검사장 또는 지청장의 처리 / 368
4. 고등법원의 심판 / 368
5. 검사의 공소제기와 공소유지 / 375
6. 재정신청사건 기록의 열람·등사 제한 / 375
7. 재정신청의 비용부담 등 / 376
[§24] 공소제기의 방식과 효과 ················································································ 376
Ⅰ. 공소장 제출의 서면주의 ·········································································· 376
1. 공소장의 제출 / 376 2. 첨부서류 / 377
Ⅱ. 공소장의 기재사항 ··················································································· 377
1. 필요적 기재사항 / 377 2. 임의적 기재사항 / 382
Ⅲ. 공소장일본주의 ························································································ 386
1. 서 / 386 2. 내 용 / 388
3. 적용범위 / 391 4. 위반의 효과 / 392
5. 관련문제 / 393
Ⅳ. 공소제기의 효과 ······················································································· 394
1. 소송계속(訴訟係屬) / 394 2. 공소시효의 정지 / 395
3. 심판범위의 한정 / 395
[§25] 공소시효와 공소제기 이후의 수사 ······························································· 400
Ⅰ. 공소시효제도 ···························································································· 400
1. 의 의 / 400 2. 본 질 / 400
3. 공소시효의 기간 / 401 4. 공소시효의 정지 / 405
5. 공소시효의 완성 / 408 6. 공소시효와 소급입법의 문제 / 409
Ⅱ. 공소제기 후의 수사 ·················································································· 410
1. 필요성과 한계 / 410 2. 공소제기 후의 강제수사 / 410
3. 공소제기 후의 임의수사 / 413
제3편 각론(2): 公判節次論
제1장 ┃ 정식재판의 공판절차
[§26] 공판절차의 기본원칙 ····················································································· 419
Ⅰ. 공판절차와 공판중심주의 ······································································· 419
1. 공판절차의 의의 / 419 2. 공판중심주의의 의의 / 419
Ⅱ. 공판중심주의의 내용 ··············································································· 420
1. 공개주의 / 420 2. 구두변론주의 / 421
3. 직접주의 / 423 4. 집중심리주의(계속심리주의) / 423
[§27] 심판의 대상과 공소장변경제도 ···································································· 424
Ⅰ. 심판의 대상 ······························································································· 424
1. 의 의 / 424 2. 학설의 대립 / 425
Ⅱ. 공소사실의 동일성 ··················································································· 427
1. 단일성과 동일성의 관계 / 427 2. 동일성에 관한 이론의 대립 / 428
Ⅲ. 공소장변경제도 ························································································ 432
1. 의의 및 구별개념 / 432 2. 공소장변경의 한계(허용범위) / 436
3. 공소장변경의 필요성 / 438 4. 공소장변경의 절차 / 448
5. 항소심에서의 특수문제: 친고죄의 축소사실로 변경된 경우
고소취소의 효과와 공소장변경의 필요성 / 452
[§28] 공판준비절차, 증거개시제도, 기타 공판절차의 내용 ································· 453
Ⅰ. 의견서제출제도 ························································································ 453
Ⅱ. 증거개시제도 ···························································································· 454
1. 의 의 / 454
2. 검사에 대한 (피고인·변호인에 의한) 증거개시의 청구 / 455
3. 피고인 또는 변호인에 대한 (검사에 의한) 증거개시의 청구 / 460
Ⅲ. 공판준비절차 ···························································································· 461
1. 공판준비절차의 의의 / 461
2. 새로 도입된 쟁점정리를 위한 공판 전 준비절차의 내용 / 462
3. 종래부터 내려오던 공판준비절차의 내용 / 465
4. 공판기일 전의 증거조사와 공무소에의 조회 / 466
Ⅳ. 공판정의 구성 ··························································································· 466
1. 소송관계인의 출석 / 466 2. 피고인의 출석 / 469
Ⅴ. 소송지휘권 ································································································ 473
1. 의 의 / 473 2. 소송지휘권의 내용 / 473
3. 소송지휘권의 행사 / 474
Ⅵ. 법정경찰권 ································································································ 474
1. 의 의 / 474 2. 내 용 / 474
3. 한 계 / 475
Ⅶ. 공판기일의 절차 ······················································································· 475
1. 모두절차 / 475 2. 사실심리절차 / 477
3. 판결선고 절차 / 483
[§29] 공판절차에서의 구체적 소송행위 ································································ 484
Ⅰ. 증인신문 ···································································································· 484
1. 증인신문의 의의 / 484 2. 증인의 의의와 증인적격 / 484
3. 증인의 의무와 권리 / 489 4. 증인신문의 방법 / 496
5. 피해자의 진술권과 기타의 지위 / 501
Ⅱ. 감정(통역, 번역) ···································································································· 504
1. 감정의 의의 / 504 2. 감정의 절차 / 504
3. 통역(通譯)과 번역(飜譯) / 505
Ⅲ. 검 증 ········································································································ 505
1. 의 의 / 505 2. 요 건 / 506
3. 절 차 / 506 4. 검증조서 / 507
[§30] 공판절차의 특칙 ····························································································· 507
Ⅰ. 간이공판절차 ···························································································· 507
1. 의 의 / 507 2. 간이공판절차개시의 요건 / 507
3. 간이공판절차의 개시결정과 절차 / 511
4. 간이공판절차의 특칙 / 511 5. 간이공판절차의 취소 / 512
Ⅱ. 공판절차의 정지와 갱신 ·········································································· 513
1. 공판절차의 정지 / 513 2. 공판절차의 갱신(更新) / 515
Ⅲ. 변론의 병합, 분리, 재개 ··········································································· 517
1. 변론의 분리와 병합 / 517 2. 변론의 재개 / 517
제2장 ┃ 형사증거론
[§31] 형사증거법의 기본구조와 기초개념 ···························································· 518
Ⅰ. 형사소송에 있어서의 증거법 ·································································· 518
Ⅱ. 증거의 의의와 종류 ·················································································· 518
1. 증거의 의의 / 518 2. 증거의 종류 / 519
[§32] 형사증거법의 기본원칙 ················································································· 524
Ⅰ. 증거재판주의 ···························································································· 524
1. 의 의 / 524 2. 엄격한 증명의 대상인 사실 / 525
3. 자유로운 증명의 대상인 사실 / 527
4. 사실의 인정(증명), 증거 및 증거조사 / 528
5. 증명이 필요하지 아니한 사실(불요증사실) / 530
6. 증거재판주의에 대한 위반 / 531
Ⅱ. 거증책임 ···································································································· 532
1. 의 의 / 532 2. 거증책임의 분배 / 534
3. 거증책임의 전환 / 536
Ⅲ. 자유심증주의 ···························································································· 538
1. 서 / 538 2. 자유심증주의의 내용 / 539
3. 자유심증주의의 예외와 제한 / 544
[§33] 자백의 증거능력과 증명력에 관한 특별원칙 ·············································· 545
Ⅰ. 서 론 ······································································································· 545
1. 자백의 의의 / 545 2. 자백의 양면적 성격 / 546
3. 자백에 대한 법제의 변천 / 547
Ⅱ. 자백의 증거능력에 관한 자백의 임의성법칙 ········································ 547
1. 의 의 / 547 2. 자백배제법칙의 이론적 근거 / 547
3. 자백의 임의성법칙의 적용범위 / 550
4. 관련문제 / 554 5. 자백배제법칙의 효과 / 555
Ⅲ. 자백의 증명력에 관한 자백의 보강법칙 ················································ 557
1. 자백 보강법칙의 의의와 필요성 / 557
2. 보강법칙의 적용범위 / 557
3. 공범자 자백의 증거능력과 증명력 / 558
4. 보강증거의 적격 / 564 5. 보강증거의 범위 / 568
6. 기 타 / 571
[§34] 위법수집증거배제법칙 ·················································································· 571
Ⅰ. 의의와 입법례 ··························································································· 572
Ⅱ. 우리나라에서의 발전과 근거 ·································································· 572
Ⅲ. 법칙의 적용범위 ······················································································· 573
1. 배제의 기준 / 573 2. 개별적 유형 / 575
3. 자백(진술)의 임의성 법칙의 포함여부 / 575
4. 선의(善意)의 예외이론 / 576 5. 독수(毒樹)의 과실(果實)이론 / 577
Ⅳ. 증거능력의 절대적 배제 효과 ································································· 581
1. 위법수집증거와 증거동의 / 581
2. 위법수집증거와 탄핵증거 / 582
3. 예외적 증거능력 인정사유에 대한 거증책임의 문제 / 582
Ⅴ. 관련문제 ···································································································· 583
1. 사인의 경우 / 583 2. 증거배제의 주장적격 / 585
[§35] 전문법칙에 관한 일반론 ················································································ 586
Ⅰ. 의 의 ······································································································· 586
1. 전문증거의 의의 / 586 2. 전문법칙의 의의 / 586
Ⅱ. 전문법칙의 이론적 근거 ·········································································· 587
1. 영미법적 근거 / 587 2. 대륙법적 근거 / 587
3. 우리나라 수사 및 공판절차의 구조비교를 통한 소결 / 588
Ⅲ. 전문법칙의 적용범위 ··············································································· 589
1. 요증사실과 관련된 진술증거 / 589
2. 언어적 행동 / 590 3. 지시행동에 대한 진술(증언) / 590
4. 탄핵증거로 사용할 경우와 증거로 함에 동의한 경우 / 590
Ⅳ. 전문법칙의 예외에 관한 일반이론 ························································· 590
1. 예외인정의 원칙적 기준 / 590
2. 우리 형사소송법의 관련규정 개관 / 591
3. 개정 입법론 / 593
[§36] 전문서류의 증거능력 ····················································································· 594
Ⅰ. 법원 또는 법관의 면전조서 ····································································· 594
1. 제311조의 취지와 성질 / 594
2. 공판준비 또는 공판기일에 피고인의 진술을 기재한 조서 / 595
3. 공판준비 또는 공판기일에 피고인 아닌 자의 진술을 기재한 조서 / 595
4. 당해 사건의 공판준비조서와 공판조서 / 596
5. 증거보전절차와 증인신문절차에서 작성한 조서 / 597
Ⅱ. 피의자신문조서 ························································································ 597
1. 의 의 / 597 2. 검사작성의 피의자신문조서 / 599
3. 사법경찰관이 작성한 피의자신문조서 / 609
Ⅲ. 진술조서의 증거능력 ··············································································· 614
1. 진술조서의 의의 / 614
2. 참고인진술조서의 증거능력 / 614
3. 전문진술이 조서에 기재된 경우(즉 재전문진술의 경우) / 617
4. 피고인 또는 증인에 대한 진술조서의 경우 / 619
Ⅳ. 진술서의 증거능력 ··················································································· 620
1. 의 의 / 620
2. 수사과정에서 작성된 진술서의 증거능력 / 621
Ⅴ. 검증조서의 증거능력 ··············································································· 622
1. 의 의 / 622 2. 법원 또는 법관의 검증조서 / 622
3. 수사기관(검사 또는 사법경찰관)의 검증조서 / 624
4. 실황조사서의 증거능력 / 627
Ⅵ. 수사과정 이외에서 작성된 진술서와 기타 진술기재서의 증거능력 ·· 629
1. 제313조 제1항과 제2항의 적용 / 629
2. 수사과정 이외에서 작성된 진술서의 증거능력 / 630
3. 기타 진술기재서의 증거능력 / 631
Ⅶ. 감정서의 증거능력 ··················································································· 632
1. 의 의 / 632 2. 감정인신문조서 / 632
3. 감정인이 제출한 감정서 / 633
4. 감정수탁자가 제출한 감정서 / 633
5. 감정서에 기재된 진술의 증거능력 / 634
[§37] 비교적 진정한 모습을 지닌 전문법칙의 예외규정 ····································· 635
Ⅰ. 형사소송법 제314조에 의한 증거능력의 인정 ······································ 635
1. 입법취지 / 635 2. 적용요건 / 636
3. 적용범위 / 642
4. 증거능력에 있어 제314조 적용의 경우 증명력 제한 / 644
Ⅱ. 형사소송법 제315조의 당연히 증거능력이 있는 서류 ·························· 645
1. 법 규정 / 645 2. 적용범위 / 645
Ⅲ. 법정에서의 전문진술(증언)에 대한 전문법칙의 예외 ··························· 648
1. 서 설 / 648 2. 피고인 아닌 자의 전문진술 / 648
3. 피고인의 전문진술 / 652 4. 재전문진술의 경우 / 653
Ⅳ. 진술의 임의성 ··························································································· 653
Ⅴ. 당사자의 동의와 증거능력 ······································································ 654
1. 서 론 / 654 2. 증거동의의 방법 / 656
3. 동의의 의제 / 660 4. 증거동의의 효과 / 662
5. 증거동의의 철회와 취소 / 664
Ⅵ. 탄핵증거 ···································································································· 666
1. 서 론 / 666 2. 탄핵증거의 범위 / 666
3. 탄핵의 범위 / 669 4. 탄핵의 대상 / 669
5. 탄핵증거의 허용범위 / 671 6. 관련문제 / 673
[§38] 특수한 (과학적) 증거방법에 대한 전문법칙의 적용 여부 ··························· 675
Ⅰ. 녹음테이프의 증거능력 ··········································································· 675
1. 녹음테이프의 성격 / 675
2. 위법수집증거배제법칙과 녹음테이프 / 676
3. 전문법칙의 적용 / 677
Ⅱ. 사진의 증거능력 ······················································································· 681
1. 사진의 성격 / 681
2. 위법수집증거배제법칙과 사진 / 681
3. 전문법칙 등의 적용 / 681
Ⅲ. 비디오테이프, CCTV, 전자기록, 휴대전화기 문자정보 등
기타 과학적 증거자료의 증거능력 ························································· 684
1. 비디오테이프와 CCTV / 684 2. 전자기록 / 684
3. 휴대전화기 저장정보 / 686
Ⅳ. 거짓말탐지기 검사결과의 증거능력 ······················································ 687
1. 거짓말탐지기의 의의 / 687 2. 증거능력 / 688
3. 관련문제 / 688
[§39] 공판조서의 증거능력과 증명력 ···································································· 691
Ⅰ. 공판조서의 증거능력 ··············································································· 691
Ⅱ. 공판조서의 배타적 증명력 ······································································ 692
1. 서 론 / 692
2. 배타적 증명력이 인정되는 범위 / 693
3. 배타적 증명력이 있는 공판조서 / 695
제3장 ┃ 재 판
[§40] 재판에 대한 일반론 ························································································ 697
Ⅰ. 재판의 의의와 종류 ·················································································· 697
1. 재판의 의의 / 697 2. 재판의 종류 / 697
Ⅱ. 재판의 성립과 재판서의 작성 ································································· 699
1. 재판의 성립 / 699 2. 재판서의 작성 / 700
[§41] 종국재판 ·········································································································· 701
Ⅰ. 유죄의 판결 ······························································································· 701
1. 의 의 / 701 2. 주 문 / 702
3. 유죄판결에 명시할 이유 / 703
Ⅱ. 무죄판결 ···································································································· 706
1. 의 의 / 706 2. 무죄사유 / 706
3. 무죄판결의 공시 / 707
4. 형사보상청구권과 국가의 소송비용 보상의무 / 707
Ⅲ. 관할위반의 판결 ······················································································· 708
1. 의 의 / 708 2. 관할위반판결의 이유 / 708
Ⅳ. 공소기각의 재판 ······················································································· 708
1. 의 의 / 708 2. 공소기각의 결정 / 708
3. 공소기각의 판결 / 709
Ⅴ. 면소의 판결 ······························································································· 710
1. 본 질 / 710 2. 면소판결의 사유 / 711
3. 관련문제 / 712
Ⅵ. 종국재판의 부수효과 ··············································································· 712
1. 구속에 미치는 효과 / 712 2. 압수물의 처분관계 / 713
3. 가납의 재판 / 713
[§42] 재판의 확정과 효력 ························································································ 713
Ⅰ. 재판의 확정 ······························································································· 713
1. 의 의 / 713 2. 재판확정의 시기 / 713
Ⅱ. 재판의 확정력 ··························································································· 714
1. 형식적 확정력 / 714 2. 내용적 확정력 / 715
3. 기판력과 일사부재리의 효력 / 716
4. 내용적 구속력 / 717 5. 일사부재리의 효력 / 718
6. 확정력의 배제 / 725
[§43] 소송비용 ·········································································································· 725
Ⅰ. 의 의 ········································································································ 725
Ⅱ. 소송비용의 부담자 ··················································································· 725
1. 피 고 인 / 725 2. 고소인, 고발인 / 726
3. 상소 또는 재심청구자 / 726
Ⅲ. 재판절차 ···································································································· 726
1. 재판으로 소송절차가 종료되는 경우 / 726
2. 재판에 의하지 아니하고 소송절차가 종료되는 경우 / 726
3. 산정방법 / 727
Ⅳ. 무죄판결과 비용보상 ··············································································· 727
제4편 각론(3): 상소절차, 비상구제절차, 특별절차 및 기타
제1장 ┃ 상 소
[§44] 상소에 관한 일반론 ························································································ 731
Ⅰ. 상소의 의의와 종류 ·················································································· 731
1. 상소의 의의 / 731 2. 상소의 종류 / 731
Ⅱ. 상 소 권 ····································································································· 732
1. 상소권자 / 732
2. 상소권의 발생과 소멸, 그리고 상소기간 / 732
3. 상소권의 회복 / 733
[§45] 상소의 이익 ····································································································· 735
Ⅰ. 서 설 ······································································································· 735
1. 의 의 / 735 2. 법적 근거 / 735
Ⅱ. 검사의 상소이익 ······················································································· 736
1. 의 의 / 736 2. 피고인에게 불이익한 상소 / 736
3. 피고인의 이익을 위한 상소 / 737
Ⅲ. 피고인의 상소이익 ··················································································· 738
1. 상소이익에 대한 판단기준 / 738 2. 상소이익의 구체적 내용 / 739
3. 상소이익이 없는 경우의 재판 / 742
[§46] 상소의 제기, 포기 및 취하 ············································································· 743
Ⅰ. 상소의 제기 ······························································································· 743
1. 상소제기의 방법 / 743 2. 상소제기의 효력 / 743
Ⅱ. 상소의 포기·취하 ··················································································· 744
1. 상소의 포기·취하의 의의 / 744 2. 상소의 포기·취하권자 / 744
3. 상소의 포기·취하의 방식 / 744 4. 상소의 포기·취하의 효력 / 745
[§47] 일부상소 ·········································································································· 747
Ⅰ. 의 의 ········································································································ 747
1. 구별개념 / 747 2. 법적 근거 / 747
Ⅱ. 일부상소의 허용범위(즉, 가분과 불가분의 효력이 인정되는 경우) ············ 747
1. 수죄의 경우 / 747 2. 일죄의 일부에 대한 상소 / 750
3. 주형과 일체가 된 부가형 / 751
Ⅲ. 일부상소의 방식 ······················································································· 752
1. 일부상소의 특정 / 752 2. 불특정의 경우 / 752
Ⅳ. 상소심의 심판범위 ··················································································· 753
1. 일반원칙 / 753
2. 피고인만 유죄부분에 일부상소를 하고 상소이유가 인정되는 경우 / 753
3. 검사만 무죄부분에 일부상소를 하고 상소이유가 인정되는 경우 / 754
4. 쌍방이 일부상소를 하였으나, 검사의 상소만 이유 있는 경우 / 755
Ⅴ. 죄수의 판단이 다른 경우 ········································································· 756
1. 피고인만 유죄부분에 대하여 상소한 경우(무죄부분은 확정된 경우) / 756
2. 검사만 무죄부분에 대하여 상소한 경우(유죄부분은 확정된 경우) / 757
Ⅵ. 관련문제―구속취소의 가부 ···································································· 757
[§48] 불이익변경금지의 원칙 ················································································· 758
Ⅰ. 서 설 ········································································································ 758
1. 의 의 / 758 2. 이론적 근거 / 758
Ⅱ. 불이익변경금지원칙의 적용범위 ··························································· 759
1. 피고인이 상소한 사건 / 759
2. 피고인을 위하여 상소한 사건 / 760
3. 상소한 사건 / 761
Ⅲ. 불이익변경금지원칙의 내용 ··································································· 764
1. 불이익변경금지의 대상 / 764 2. 불이익변경의 판단기준 / 766
3. 형의 경중의 비교 / 767
Ⅳ. 불이익변경금지 원칙의 위반의 효과 ····················································· 772
[§49] 파기판결의 구속력 ························································································· 772
Ⅰ. 서 설 ······································································································· 772
1. 의 의 / 772 2. 인정근거 / 773
Ⅱ. 법적 성질 ··································································································· 773
1. 견해의 대립 / 773 2. 소 결 / 773
Ⅲ. 구속력의 범위 ··························································································· 773
1. 구속력이 미치는 심급법원 / 773
2. 기속력이 발생하는 판단의 범위 / 774
3. 구속력의 배제 / 775
[§50] 구체적 상소방법 ····························································································· 776
Ⅰ. 항 소 ······································································································· 776
1. 항소심의 구조 / 776 2. 항소이유 / 778
3. 항소심의 절차 / 780 4. 항소심의 심리 / 782
Ⅱ. 상 고 ······································································································· 785
1. 상고심의 구조 / 785 2. 상고이유 / 786
3. 상고심의 절차 / 787 4. 상고심 개선을 위한 입법론 / 790
Ⅲ. 비약적 상고 ······························································································· 791
1. 의 의 / 791 2. 비약적 상고의 이유 / 791
Ⅳ. 상고심판결의 정정 ··················································································· 791
1. 의 의 / 791 2. 정정의 사유 / 792
3. 정정의 절차 / 792
Ⅴ. 항 고 ······································································································· 792
1. 서 론 / 792 2. 항고심의 절차 / 793
3. 준 항 고 / 795
제2장 ┃ 비상구제절차
[§51] 재 심 ·············································································································· 799
Ⅰ. 서 설 ······································································································· 799
1. 재심의 의의 / 799 2. 재심의 취지(목적) / 799
3. 재심절차의 구조 / 800
Ⅱ. 재심의 대상 ······························································································· 800
Ⅲ. 재심사유 ···································································································· 802
1. 유죄의 확정판결에 대한 재심이유 / 802
2. 상소기각의 확정판결에 대한 재심이유 / 811
3. 확정판결에 대신하는 증명 / 812
Ⅳ. 재심의 절차 ······························································································· 814
1. 재심의 관할 / 814 2. 재심의 청구 / 814
3. 재심청구에 대한 심판 / 815 4. 재심의 심판절차 / 817
[§52] 비상상고 ·········································································································· 819
Ⅰ. 의의 및 기능 ······························································································ 819
Ⅱ. 비상상고의 대상 ······················································································· 819
Ⅲ. 비상상고의 사유 ······················································································· 819
1. 법령위반 / 819 2. 사실오인에 따른 법령위반 / 820
Ⅳ. 비상상고의 절차 ······················································································· 821
1. 비상상고의 신청 / 821 2. 비상상고의 심리 / 822
Ⅴ. 비상상고의 판결 ······················································································· 822
1. 기각판결 / 822 2. 파기판결 / 822
3. 비상상고판결의 효력 / 823
제3장 ┃ 특별절차와 재판의 집행 기타
[§53] 국민의 형사재판 참여에 관한 법률 에 따른 국민참여재판절차 ············· 824
Ⅰ. 의 의 ········································································································ 824
Ⅱ. 대상사건 및 관할 ····················································································· 825
1. 대상사건 / 825 2. 공소장 변경 / 829
3. 관할(참여심급) / 830
Ⅲ. 배심원의 수, 자격 및 선정 ······································································· 831
1. 배심원의 수 / 831 2. 배심원의 자격 / 832
3. 배심원의 선정 / 834
Ⅳ. 국민참여재판의 공판절차 ······································································· 840
1. 공판준비절차 / 840 2. 공판절차 / 842
Ⅴ. 판결절차 ···································································································· 848
1. (변론종결 후) 재판장의 설명(=법관의 설시) / 848
2. 배심원의 평의·평결 등 / 848 3. 판결의 선고 / 850
4. 국민참여재판에 대한 상소의 인정여부 / 851
Ⅵ. 기 타 ········································································································ 853
1. 배심원 등의 보호를 위한 조치 / 853
2. 벌 칙 / 855
[§54] 약식절차 ·········································································································· 856
Ⅰ. 서 론 ······································································································· 856
1. 약식절차의 의의 / 856 2. 이용실태 / 856
Ⅱ. 약식명령의 청구 ······················································································· 856
1. 청구권자와 청구의 대상 / 856 2. 청구의 방식 / 857
3. 공소제기와 공소취소의 문제 / 857
Ⅲ. 약식절차의 심판 ······················································································· 858
1. 법원의 심사 / 858 2. 공판절차에의 회부 / 858
3. 약식명령 / 859
Ⅳ. 정식재판의 청구 ······················································································· 861
1. 청구의 절차 / 861 2. 법원의 재판 / 862
Ⅴ. 문제점과 입법론 ······················································································· 864
1. 문 제 점 / 864 2. 입 법 론 / 865
[§55] 즉결심판절차 ·································································································· 866
Ⅰ. 서 론 ······································································································· 866
1. 즉결심판절차의 의의 / 866 2. 이용실태 / 866
Ⅱ. 즉결심판의 대상과 청구 ·········································································· 866
1. 대 상 / 866 2. 청 구 / 867
Ⅲ. 즉결심판법원의 심리와 재판 ·································································· 869
1. 형사소송법의 준용 / 869 2. 특 칙 / 869
3. 심리절차 / 871 4. 즉결심판의 효력과 형집행 / 873
Ⅳ. 정식재판의 청구와 심판 ·········································································· 873
1. 청구권자 / 873 2. 청구절차 / 874
3. 관련기관의 조치 / 874 4. 재 판 / 875
[§56] 배상명령절차 ·································································································· 875
Ⅰ. 의 의 ······································································································· 875
Ⅱ. 배상명령의 요건 ······················································································· 875
1. 배상명령의 대상 / 875 2. 배상명령의 범위 / 876
Ⅲ. 배상명령의 절차 ······················································································· 876
1. 배상명령의 신청 / 876
2. 배상신청에 대한 조치와 재판 / 877
3. 배상명령에 대한 불복 / 878 4. 배상명령의 효력 / 878
Ⅳ. 관련제도: 민사상 다툼에 관한 형사소송절차에서의 화해제도의
도입 ············································································································ 879
1. 의 의 / 879 2. 신 청 / 879
3. 화해기록 / 879
4. 화해절차 당사자 등에 관한 민사소송법 의 준용 / 880
5. 집행문부여의 소 등에 대한 관할 특칙 / 880
6. 위임입법 / 880
[§57] 소년형사(보호)절차 ························································································· 881
Ⅰ. 서 론 ······································································································· 881
1. 소 년 법 / 881 2. 소년의 의의 / 881
Ⅱ. 소년형사절차의 특칙 ··············································································· 881
1. 검사선의주의와 조사제도 / 881
2. 조건부 기소유예제도의 도입 / 882
3. 사건의 송치 / 882 4. 소송조건에 관한 특칙 / 883
5. 심리에 관한 특칙 / 884 6. 재판에 있어서의 특칙 / 884
7. 형의 집행에 있어서의 특칙 / 885
Ⅲ. 기타 사항 ··································································································· 885
1. 소년부 송치시의 신병처리 / 885
2. 자격에 관한 법령의 적용 / 886
3. 비행 예방 / 886
[§58] 재판의 집행과 형사보상 ················································································ 886
Ⅰ. 재판의 집행 ······························································································· 886
1. 집행의 일반원칙 / 886 2. 형의 집행 / 887
3. 재판집행에 대한 의의와 이의신청 / 889
4. 기타의 사항 / 890
Ⅱ. 형사보상제도 ···························································································· 892
1. 형사보상의 의의 / 892 2. 형사보상의 요건 / 892
3. 형사보상의 내용 / 894 4. 형사보상의 절차 / 895
찾아보기 ·········································································································· 898
손동권
고려대학교 법학과 졸업
고려대학교 대학원 법학석사과정 졸업
독일 Bonn 대학교 법학박사과정 졸업(Dr. Jur.: 형사법 전공)
경찰대학 법학과 전임교수
UC Berkeley Law School 방문학자(2002년)
한국형사정책학회 회장(2008년)
한국형사법학회 회장(2009년)
한국마약범죄학회 회장
형사판례연구회 상임이사
한국형사정책연구원 초빙연구위원
검찰제도개혁위원회 위원
서울고등검찰청 항고심사위원
서울동부지방검찰청 검찰시민위원회 위원장
서울경찰청 인권위원
법무부 정책위원, 법무부 형법개정특위위원
법무부 형사소송법개정특위위원
사법시험·행정고시·입법고시, 변호사시험 등 출제위원
건국대학교 로스쿨 원장 겸 법대 학장
(현) 건국대학교 법학전문대학원(로스쿨) 교수
주요저서
Die Problematik der Bestrafung des Gewissen-stäters nach dem geltenden Recht(Dissertation, Bonn, 1989)
『출입국 관리와 치안대책의 효율화에 관한 연구』(치안연구소, 공저, 1996)
『수강명령프로그램의 운용실태와 개발방향』(한국형사정책연구원, 공저, 1998)
『범행비례적 양형론에 관한 연구』(한국형사정책연구원, 공저, 2006)
[형사특별법정비방안: 특정경제범죄가중처벌 등에 관한 법률] (한국형사정책연구원, 2008)
『형사정책(제11판)』(한국형사정책연구원, 공저, 2010)
『법의 이해』(건국대학교 출판부, 공저, 2000)
『인권 길라잡이[경찰편]』(국가인권위원회, 공저, 2000)
『새로운 형법총론』(율곡출판사, 공저, 2011)
『제3개정판 형법각론』(율곡출판사, 2010)
『형사특별법론』(한국형사정책연구원, 공저, 2010)
『신경향 형법연습』(율곡미디어, 2008)
『형법연습 I, II』(율곡미디어, 2010)
신이철
동아대학교 법과대학 법학과(법학사), 동 대학원(법학석사)
건국대학교 일반대학원 법학과(법학박사)
해양경비안전교육원 외래교수
경찰청 경찰수사연수원 외래교수(수사지휘과정/형사실무과정/지능‧마약범죄과정)
경찰종합학교[(Police Comprehensive Academy) 현. 경찰교육원] 외래교수
국립중앙경찰학교(Central Police Academy) 외래교수(2013.3-현재)
한국법무보호복지학회 부회장, 한국비교형사법학회 이사
숭실대학교 법과대학 법학과 외래강사(2007-2012)
건국대학교 법과대학/행정대학원/일반대학원/법학전문대학원 외래강사
건동대학교 경찰행정학과 전임교수(학부장)
경찰청 경찰채용시험/경찰간부시험 등 출제위원
(현) 원광디지털대학교 경찰학과 교수(학과장)
주요저서 및 논문
『형법판례 강의』(2006, 숭실대학교 출판부, 공저)
『객관식 형사소송법』(2007, 네오시스)
『형사구제법』(2014, Justinianus)
『형법 총론』(2012, 숭실대학교 출판부, 공저)
『형법 각론』(2013, 숭실대학교 출판부, 공저)
『개정법에 따른 형사증거법』(2014, Justinianus)
『신형사소송법의 쟁점』(개정9판, 2012, Justinianus)
“공범 공판조서의 증거능력 규제방안—대법원 판례의 비판적 검토를 중심으로—,” 형사법연구 제24권 제4호, 한국형사법학회, 2012.12.
“형사사건에 대한 상고기각 결정과 효력발생시기—특히 상고이유서 미제출의 경우—,” 비교형사법연구 제16권 제1호, 2014.8.
외 다수
고려대학교 법학과 졸업
고려대학교 대학원 법학석사과정 졸업
독일 Bonn 대학교 법학박사과정 졸업(Dr. Jur.: 형사법 전공)
경찰대학 법학과 전임교수
UC Berkeley Law School 방문학자(2002년)
한국형사정책학회 회장(2008년)
한국형사법학회 회장(2009년)
한국마약범죄학회 회장
형사판례연구회 상임이사
한국형사정책연구원 초빙연구위원
검찰제도개혁위원회 위원
서울고등검찰청 항고심사위원
서울동부지방검찰청 검찰시민위원회 위원장
서울경찰청 인권위원
법무부 정책위원, 법무부 형법개정특위위원
법무부 형사소송법개정특위위원
사법시험·행정고시·입법고시, 변호사시험 등 출제위원
건국대학교 로스쿨 원장 겸 법대 학장
(현) 건국대학교 법학전문대학원(로스쿨) 교수
주요저서
Die Problematik der Bestrafung des Gewissen-stäters nach dem geltenden Recht(Dissertation, Bonn, 1989)
『출입국 관리와 치안대책의 효율화에 관한 연구』(치안연구소, 공저, 1996)
『수강명령프로그램의 운용실태와 개발방향』(한국형사정책연구원, 공저, 1998)
『범행비례적 양형론에 관한 연구』(한국형사정책연구원, 공저, 2006)
[형사특별법정비방안: 특정경제범죄가중처벌 등에 관한 법률] (한국형사정책연구원, 2008)
『형사정책(제11판)』(한국형사정책연구원, 공저, 2010)
『법의 이해』(건국대학교 출판부, 공저, 2000)
『인권 길라잡이[경찰편]』(국가인권위원회, 공저, 2000)
『새로운 형법총론』(율곡출판사, 공저, 2011)
『제3개정판 형법각론』(율곡출판사, 2010)
『형사특별법론』(한국형사정책연구원, 공저, 2010)
『신경향 형법연습』(율곡미디어, 2008)
『형법연습 I, II』(율곡미디어, 2010)
신이철
동아대학교 법과대학 법학과(법학사), 동 대학원(법학석사)
건국대학교 일반대학원 법학과(법학박사)
해양경비안전교육원 외래교수
경찰청 경찰수사연수원 외래교수(수사지휘과정/형사실무과정/지능‧마약범죄과정)
경찰종합학교[(Police Comprehensive Academy) 현. 경찰교육원] 외래교수
국립중앙경찰학교(Central Police Academy) 외래교수(2013.3-현재)
한국법무보호복지학회 부회장, 한국비교형사법학회 이사
숭실대학교 법과대학 법학과 외래강사(2007-2012)
건국대학교 법과대학/행정대학원/일반대학원/법학전문대학원 외래강사
건동대학교 경찰행정학과 전임교수(학부장)
경찰청 경찰채용시험/경찰간부시험 등 출제위원
(현) 원광디지털대학교 경찰학과 교수(학과장)
주요저서 및 논문
『형법판례 강의』(2006, 숭실대학교 출판부, 공저)
『객관식 형사소송법』(2007, 네오시스)
『형사구제법』(2014, Justinianus)
『형법 총론』(2012, 숭실대학교 출판부, 공저)
『형법 각론』(2013, 숭실대학교 출판부, 공저)
『개정법에 따른 형사증거법』(2014, Justinianus)
『신형사소송법의 쟁점』(개정9판, 2012, Justinianus)
“공범 공판조서의 증거능력 규제방안—대법원 판례의 비판적 검토를 중심으로—,” 형사법연구 제24권 제4호, 한국형사법학회, 2012.12.
“형사사건에 대한 상고기각 결정과 효력발생시기—특히 상고이유서 미제출의 경우—,” 비교형사법연구 제16권 제1호, 2014.8.
외 다수
