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- 독자대상 : 법원사무관 승진 시험 준비생
- 구성 : 형사소송법 사례
- 특징 :
① 기본 쟁점 및 최근 중요 판례 사례화
② 실전 답안분량의 해설
③ 중요 쟁점의 상세한 해설

제1편 총 론
사례001. 제6조에 따른 토지관할 병합심리 신청사건의 관할법원 ············································3
사례002. 항소심에서의 사물관할의 변경과 관할법원의 문제 ····················································5
사례003. 약식명령과 제척사유, 약식명령과 불이익변경금지원칙 ··············································9
사례004. 법원의 증거결정과 기피사유 해당여부 및 불복방법 ················································12
사례005. 성명모용소송 ··············································································································15
〈 유제1:성명모용소송 ·················································································································20
사례006. 위장출석 ·····················································································································21
사례007. 국선변호인이 법정기간 내에 피고인의 귀책사유 없이 항소이유서를 제출하지 않은 경우, 항소심 법원의 조치 ·······23
사례008. 구속피의자의 피의자신문을 위한 구인 허부 ····························································25
사례009. 변호인의 피의자신문 참여권의 침해와 불복방법, 진술거부권을 고지하였지만 제244조의3 제2항에 위반하여 작성한 피신조서의 증거능력 ····27
사례010. 법원의 증거개시결정에 대한 불복의 허부 ································································30
사례011. 착오에 의한 소송행위의 무효원인 여부 ···································································32
사례012. 변호인선임의 추완 허부 ····························································································34
사례013. 소송조건 흠결의 경합과 법원의 조치 ·······································································36

제2편 수 사
사례014. 함정수사 ·····················································································································41
〈 유제2:함정수사 ·······················································································································46
〈 유제3:함정수사 ·······················································································································47
사례015. 고소 전 수사, 고소의 추완, 고소의 포기 ································································48
사례016. 친족상도례와 고소취소의 소송법적 효과 ··································································52
〈 유제4:친족상도례와 고소의 주관적 불가분 원칙 ·······································································53
사례017. 전속고발사건과 고소의 주관적 불가분원칙의 유추적용 여부 ··································54
사례018. 공범에 대한 제1심판결 선고 후 고소취소의 허부 ··················································56
사례019. 반의사불벌죄와 고소의 주관적불가분 원칙의 준용여부 및 공범에 대한 제1심판결 선고 후 고소취소의 허부 ··········58
〈 유제5:반의사불벌죄와 고소의 주관적 불가분원칙의 준용여부 ·····················································61
〈 유제6:반의사불벌죄와 고소의 주관적 불가분원칙의 준용여부 ·····················································62
사례020. 긴급체포의 적법성 ·····································································································63
〈 유제7:긴급체포의 요건 및 그 판단기준 ····················································································65
사례021. 현행범체포시 체포의 필요성 요부 ············································································66
사례022. 보증금납입조건부 피의자석방결정에 대한 검사의 항고 허부 ··································68
사례023. 압수·수색집행절차의 적법성 등 ················································································70
사례024. 압수수색영장 유효기간의 성질 등 ············································································76
사례025. 압수·수색에 있어서 영장주의의 예외 ·······································································79
사례026. 체포현장에서의 영장 없는 압수, 별건압수 등(1) ····················································84
사례027. 체포현장에서의 영장 없는 압수, 별건압수 등(2) ····················································88
사례028. 긴급체포시 영장 없는 압수(1) ··················································································93
사례029. 긴급체포시 영장 없는 압수(2) ··················································································96
사례030. 임의제출물의 압수 ·····································································································98
사례031. 강제채혈 등(1) ········································································································101
사례032. 압수물 환부청구권의 포기 등 ·················································································105
사례033. 증거보전, 증인신문의 청구 ·····················································································108
〈 유제8:수사상 증거보전(검사의 판사에 대한 증인신문청구, 증거보전) ·······································111
사례034. 공소제기 후의 수사 ·································································································112
〈 유제9:공소제기 후의 수사 ·····································································································117
〈 유제10:공소제기 후의 수사 ···································································································118

제3편 공소제기
사례035. 재정신청에 대한 공소제기결정의 하자 ···································································121
사례036. 공소사실의 불특정과 법원의 조치 ··········································································127
〈 유제11:공소사실의 불특정 ·····································································································130
사례037. 예비적·택일적 기재 ·································································································131
사례038. 친고죄의 일죄의 일부에 대한 공소제기 ·································································136
사례039. 공소시효와 공소장변경 ····························································································140
사례040. 공소시효와 공범(대향범 관계에 있는 자)의 시효의 정지여부 ······························143
사례041. 공범과 시효의 정지 ·································································································146

제4편 공 판
사례042. 포괄일죄에 대한 추가기소시 검사와 법원의 조치 ·················································151
〈 유제12:포괄일죄의 추가기소에 대한 법원의 조치 ···································································154
〈 유제13:상상적 경합에 대한 추가기소시 검사와 법원의 조치 ···················································155
사례043. 공소사실의 동일성(공소장변경의 한계와 기판력의 객관적 범위) ··························156
사례044. 공소장변경의 필요성 ·······························································································159
〈 유제14:일부기소의 적법성, 공소장변경의 필요성 ····································································162
사례045. 단독범을 공동정범으로 인정하는 경우 공소장변경의 필요성 ·······························163
사례046. 법원의 공소장변경요구 ····························································································165
사례047. 공소장변경의 필요성(축소사실의 인정과 판결편의주의), 항소심에서의 고소취소의 허부 ···················168
사례048. 소송관계인의 출석 ···································································································172
사례049. 약식명령에 대한 정식재판절차에서의 피고인 2회 불출석과 증거동의의 의제 ········178
사례050. 공판전 준비절차 ······································································································181
사례051. 법원의 증거결정에 대한 불복방법 ··········································································183
사례052. 공동피고인의 증인적격(1) ·······················································································186
〈 유제15:공동피고인의 증인적격 ······························································································188
사례053. 공동피고인의 증인적격(2), 공범인 공동피고인의 증언거부권 ·······························189
사례054. 공동피고인의 증인적격, 공동피고인의 법정진술의 증거능력 ································191
사례055. 유죄판결이 확정된 공범의 증언거부권 유무와 위증죄 성부 ·································194
〈 유제16:유죄판결이 확정된 공범의 증언거부권 유무 ································································197

제5편 증 거
사례056. 엄격한 증명과 자유로운 증명, 자백의 임의성에 대한 증명 ·································201
〈 유제17:자백의 임의성에 대한 증명의 방법(증명의 정도) ·························································206
사례057. 위법수집증거배제법칙 ······························································································207
사례058. 사인이 위법하게 수집(절취)한 증거의 증거능력 ····················································211
사례059. 사인이 위법하게 수집한 증거, 현장사진의 증거능력 ············································213
사례060. 독수과실과 그 예외(1) ····························································································215
사례061. 독수과실과 그 예외(2) ····························································································218
사례062. 압수요건으로 ‘관련성’ 위반 및 독수과실의 예외(3) ·············································221
사례063. 독수과실의 예외(4), 강제채뇨, 강제채혈, 관련성 ·················································223
사례064. 임의동행의 적법성 요건과 위법수집증거배제법칙의 주장적격 ······························230
사례065. 전문증거와 본래증거의 구별 ···················································································233
〈 유제18:전문증거와 본래증거의 구별 ······················································································235
사례066. 다른 사건(공범)의 공판조서 ····················································································236
사례067. 검사작성 공범에 대한 피의자신문조서의 증거능력 ···············································240
〈 유제19:검사작성 공범에 대한 피신조서의 증거능력, 제314조 적용여부 ···································244
사례068. 사경작성 공범에 대한 피의자신문조서, 제314조 적용여부 ··································245
〈 유제20:사경작성 피신조서 및 공범에 대한 피신조서 등의 증거능력 ········································248
〈 유제21:사경 및 검사 작성 공범에 대한 피의자신문조서의 증거능력 ········································249
사례069. 진술서(수사과정 진술서, 통상의 진술서), 제313조 제1항 단서의 ‘피고인의 진술을 기재한 서류’의 증거능력 ············250
사례070. 수사기록하지 않은 수사과정 진술서의 증거능력 ···················································254
사례071. 검증조서의 증거능력 ·······························································································256
사례072. 실황조사서의 증거능력 ····························································································260
〈 유제22:실황조사서 ················································································································264
사례073. 수사보고서의 증거능력 ····························································································265
사례074. 증언거부권의 행사가 제314조의 ‘그 밖에 이에 준하는 사유’에 해당여부 ·············268
〈 유제23:증언거부권의 행사가 제314조의 ‘그 밖에 이에 준하는 사유’에 해당여부 ·····················271
사례075. 제316조 제2항의 ‘피고인 아닌 타인’의 의미(1) ··················································272
사례076. 제316조 제2항의 ‘피고인 아닌 타인’의 의미(2) ··················································275
사례077. 조사자증언의 증거능력 ····························································································277
사례078. 재전문증거의 증거능력(1) ·······················································································280
사례079. 재전문증거의 증거능력(2) ·······················································································282
〈 유제24:재전문증거의 증거능력 ······························································································285
〈 유제25:재전문증거의 증거능력 ······························································································286
사례080. CCTV(현장사진)의 증거능력(1) ··············································································287
사례081. 현장사진의 증거능력(2) ··························································································290
〈 유제26:현장사진의 증거능력 ··································································································292
사례082. 녹음테이프(진술녹음)의 증거능력 ···········································································293
사례083. 피해자가 피고인과의 대화내용을 비밀녹음한 녹음테이프(진술녹음)의 증거능력 ······296
사례084. 현장녹음의 증거능력 ·······························································································300
사례085. 증거동의의 의제와 증거동의의 취소·철회의 허용시기 ··········································302
사례086. 탄핵증거의 허용범위 ·······························································································305
〈 유제27:탄핵증거의 허용범위 ··································································································307
사례087. 내용을 부인한 사경작성 피의자신문조서의 탄핵증거 허부 ···································308
사례088. 수사기관 영상녹화물의 증거능력 ············································································310
사례089. 공범자의 자백과 보강증거 요부 ·············································································313
〈 유제28:공범자의 자백 ···········································································································315
사례090. 자백의 보강법칙 ······································································································316
〈 유제29:공동피고인(공범인 경우, 공범 아닌 경우) 자백의 증거능력 ··········································321
〈 유제30:보강증거의 자격(성질) ·······························································································322

제6편 재판, 상소, 비상구제절차
사례091. 포괄일죄(상습범)의 일부 확정판결의 기판력 ·························································325
사례092. 약식명령에 대한 피고인의 정식재판청구사건의 공판절차에서 불이익변경 금지원칙과 공소장변경의 허부 ···················327
사례093. 포괄일죄의 일부상소 ·······························································································330
〈 유제31:포괄일죄의 일부상소 ··································································································332
〈 유제32:상상적 경합범의 일부상소 ··························································································333
사례094. 경합범의 일부상소와 상소심의 파기범위(1) ···························································334
사례095. 경합범에 대한 일부상소시 일죄로 판명된 경우 ····················································336
〈 유제 33:경합범에 대한 일부상소시 일죄로 판명된 경우 ·························································337
사례096. 약식명령에 대한 정식재판청구사건에서의 공시송달 ··············································338
사례097. 공시송달의 하자와 상소권회복청구 등 ···································································340
사례098. 준항고 ······················································································································345
사례099. 특별사면과 재심사유 ·······························································································347
사례100. 재심(증거의 신규성·명백성), 재심법원 심판범위 ···················································350
사례101. 증거의 신규성 - 위장자수자에 대한 구제방법 등 ················································355
사례102. 공범자(공동피고인)의 소송관계 ···············································································357

머리말

1. 들어가며
본서는 법원사무관 승진시험 형사소송법 사례형 대비를 위한 것입니다.
그 동안 복합형 스타일의 사례형 문제들을 공부하다 보면 복잡ㆍ다단하고 특히 쟁점이 부각되지 않아 애로가 많았다는 점 등을 고려하여 형사소송 절차의 진행순서에 따라 각 쟁점별로 보다 단순화하면 사례형 대비에 보다 효율적인 준비가 될 수 있다고 판단하여 출간에 이르게 되었습니다.
2. 형사소송법 사례연습의 특징
① 형사소송법 사례형 대비를 위한 공부방법
형사소송법 사례형 기출문제 등을 살펴보면 기존의 출제되었던 각종 쟁점들이 반복ㆍ교차하여 출제되는 경향이 매우 강합니다. 실체법과 달리 절차법의 특성상 쟁점이 그다지 많지 않기 때문일 것입니다. 따라서 형사소송법 사례형 대비를 위해서는 이미 출제되었던 쟁점들을 완전히 분석ㆍ정리하는데 있다고 봅니다.
② 본서의 대상
본서는 최근의 각종 형사소송법 사례형을 망라하고 있습니다. 법원행시, 법무사, 법원사무관, 입법고시는 물론 변호사시험 및 사법시험 등의 기출문제도 수록하였습니다. 특히 법원행시, 법무사, 법원사무관 시험문제는 서로 교차출제되는 경향이 보다 강하다는 것을 유념하기 바랍니다.
③ 진도별 쟁점 문제의 총망라(기본형 102개 + 유제 33개)
본서는 형사소송법 사례형의 효율적인 학습을 위해서 기존의 복합형 사례형 문제들을 형사절차의 진행순서에 따라 진도별로 기본적인 쟁점을 위주로 재구성하고 있습니다. 복합형 문제들도 실제로는 기본적인 쟁점들은 모아 놓은 것에 지나지 않습니다. 기본서를 공부하면서 본서를 옆에 두고 진도별로 활용한다면 좀 더 효과적일 것입니다.
④ 기본 쟁점 및 최근 중요 판례의 사례화
아직 출제된 바는 없지만, 기본 쟁점 및 최근의 중요 판례들도 진도별로 문제화하여 불의타를 방지할 수 있도록 하였습니다.
⑤ 실전 답안분량의 해설 및 중요 쟁점의 상세한 해설
최근의 실제 기출문제들을 보면 보통 10∼15점짜리 형태로 출제되고 있는바, 본서도 이에 맞추어, ‘1. 쟁점의 정리, 2. 쟁점에 대한 견해대립(학설/판례/검토) 3. 사안의 해결’이라는 기본적인 답안구성방식을 따르고 있고, 해설분량도 가능하면 실전에 맞도록 간결하게 기술하는데 노력하였습니다. 혹 문제의 속성 또는 중요성을 고려하여 자세하게 설명한 부분도 없지 않지만(각종 영장 없는 압수등, 공소장변경의 제문제, 현장사진(CCTV)ㆍ비밀녹음, 공범자의 소송관계, 일부상소, 재심 등), 이러한 내용들은 여러분의 수준을 한 단계 올릴 수 있는 중요한 쟁점 부분이라 생각하고 반드시 숙지해 두길 당부드립니다.
3. 감사의 말씀
본서의 출간에는 오래 전부터 많은 우여곡절과 여러분들의 도움이 있었습니다.
특히 저의 부족한 강의를 찾아주신 여러분들의 조언과 질타, 학연 출판사의 이인규 박사님, 이기철 실장님, 전희주 편집실장님, 노기문 선생님의 표지 도움, 그리고 교정 등을 보아 준 정동혁 군의 도움이 있었음을 이 자리를 빌려 감사의 마음을 전합니다.

마지막으로 본서의 독자 여러분!
본서가 여러분의 수험생활에 실제로 도움이 되었으면 하는 마음 간절합니다. 어수선한 정국이지만 여러분은 차분하게 끝까지 파이팅하기 바랍니다.

2017년 1월
편저자 김영환