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…… 형 사 소 송 법 ……
[1] 수사의 개시 ···································································································· 3
1. 반의사불벌죄에서 처벌희망의사표시 철회의 시기(大判 2016도9470) ························ 3
[2] 수사의 방법 ···································································································· 5
2. 임의동행의 종류(大判 2020도398) ······································································· 5
3. 피의자신문시 보호장비 사용 여부 및 변호인의 피의자신문 참여권 침해 여부(大決 2015모2357)· 6
[3] 대인적 강제수사 ······························································································ 8
4. 긴급체포의 요건(大判 2016도5814) ····································································· 8
[4] 대물적 강제수사 ······························································································ 9
5. 수출입물품에 대한 조사·압수와 영장주의(大判 2014도8719) ··································· 9
6. 압수·수색과 사건과의 관련성(大判 2017도13458) ················································ 10
7. 압수·수색과 사건과의 관련성(大判 2019도14341) ················································ 12
8. 압수·수색영장의 장소적 범위(大判 2017도9747) ················································· 14
9. 압수·수색영장의 제시방법(大決 2019모3526) ······················································ 16
10. 압수·수색영장 집행절차의 적법요건(大判 2015도12400) ····································· 17
11. 압수·수색에의 참여권(大判 2020도10729) ························································ 20
12. 전자정보에 대한 압수·수색의 방법과 절차(大判 2017도13263) ···························· 22
13. 압수물의 가환부(大決 2017모236) ··································································· 24
14. 강제채뇨의 요건과 절차 및 방법(大判 2018도6219) ··········································· 26
15. 체포 목적의 피의자 수색의 허용요건(憲決 2018.4.26. 2015헌바370,2016헌가7(병합)) · 28
16. 범죄장소에서의 압수·수색·검증과 하자의 치유(大判 2014도16080) ······················ 29
17. 긴급체포 후의 압수·수색·검증의 요건과 절차(大判 2017도10309) ························ 30
18. 전기통신 ‘감청’의 의미와 방법(大判 2016도8137) ············································· 31
19. 통신사실확인자료의 허용요건(大判 2016도13489) ············································· 33
20. 통신비밀보호법상 타인간의 대화의 의미(大判 2016도19843) ······························ 35
21. 비밀녹음한 전화통화내용의 증거능력(大判 2015도1900) ····································· 36
[5] 수사의 종결 ·································································································· 38
22. 증인에 대한 검찰 진술조서의 증거능력(大判 2013도6825) ·································· 38
[6] 공소와 공소권이론 ························································································· 40
23. 공소권남용의 요건과 효과(大判 2018도14295) ·················································· 40
[7] 공소제기의 기본원칙 ······················································································ 41
24. 재정신청 기각결정 확정 후의 소추의 요건(大判 2014도17182) ··························· 41
25. 하자 있는 공소제기결정에 대한 불복방법(大判 2017도13465) ····························· 43
[8] 공소제기의 방식 ···························································································· 44
26. 저장매체(CD)를 이용한 공소제기의 적법성(大判 2016도19027) ··························· 44
27. 공소사실이 부분적으로 특정되지 않은 경우(大判 2019도10086) ·························· 47
28. 공소사실이 부분적으로 특정되지 않은 경우(大判 2017도3448) ···························· 50
[9] 공소시효 ······································································································· 52
29. 공직선거법 위반죄의 공소시효 기산일(大判 2019도8815) ··································· 52
30. 미수범의 공소시효의 기산점(大判 2016도14820) ··············································· 53
[10] 법 원 ········································································································· 54
31. 군사법원과 일반법원의 재판권의 범위(大決 2016초기318, 전원합의체 결정) ········· 54
[11] 변호인 ········································································································ 57
32. 국선변호인 선정사유인 ‘피고인이 구속된 때’의 의미(大判 2017도3780) ··············· 57
33. ‘피고인이 심신장애의 의심이 있는 때’ 국선변호인의 선정 여부(大判 2019도8531) ·· 58
34. 빈곤과 국선변호인 선정(大判 2016도16661) ····················································· 60
35. 반의사불벌죄에서 변호인의 처벌불원의사표시의 대리(大判 2019도10678) ············ 61
36. 변호인의 접견교통권의 주체와 제한(大判 2013도16162) ···································· 63
[12] 공판심리의 범위 ·························································································· 65
37. 공소사실의 추가와 추가기소의 구별기준(大判 2016도21342) ······························ 65
38. 공소사실의 동일성의 판단기준(大判 2016도15526) ············································ 67
39. 공소사실의 동일성의 판단기준(大判 2018도20928) ············································ 69
40. 공소사실의 비양립관계 여부(大判 2018도3688) ················································· 71
41. 공소장변경의 필요성(大判 2018도5909) ··························································· 72
42. 공소장변경의 필요성(大判 2019도4608) ··························································· 74
43. 공소장변경과 피고인의 동의(大判 2017도5122) ················································· 76
[13] 공판정에서의 심리 ······················································································· 77
44. 전문심리위원 참여절차의 적법성(大判 2018도19051) ········································· 77
45. 피고인과 변호인의 최종의견진술(大判 2018도327) ············································ 78
[14] 증거조사와 강제처분 ···················································································· 79
46. 증인의 불출석에 대한 법원의 조치(大判 2020도2623) ········································ 79
47. 피고인 소환의 방법(大判 2018도13377) ··························································· 81
48. 형사소송법 제72조의 의미(大決 2015모1032) ··················································· 83
[15] 증명의 기본원칙 ·························································································· 85
49. 간접증거에 의한 사실인정의 요건(大判 2017도1549) ········································· 85
50. 성폭행 피해자의 진술의 증명력 판단방법 등(大判 2020도6965,2020전도74) ········ 87
51. 상해진단서의 증명력(大判 2016도15018) ························································· 89
52. 피해자의 진술의 증명력(大判 2018도7709) ······················································· 91
53. 과학적 증거방법의 증명력 인정요건(大判 2017도14222) ···································· 94
[16] 위법수집증거배제법칙 ··················································································· 96
54. 위법수집증거와 증거배제의 기준(大判 2018도20504) ········································· 96
55. 위법수집증거배제법칙과 독수의 과실이론(大判 2018도4075) ······························· 99
[17] 전문법칙 ··································································································· 101
56. 본래증거와 전문증거의 구별기준(大判 2018도14303, 전원합의체 판결) ·············· 101
57. 본래증거와 전문증거의 구별기준(大判 2017도19499) ······································· 103
58. 형사소송법 제312조 제3항의 적용범위(大判 2016도9367) ································ 105
59. 압수조서에 기재된 ‘압수경위’의 증거능력 인정요건(大判 2019도13290) ············· 107
60. 정당하지 않은 증언거부와 제314조의 적용여부(大判 2018도13945, 전원합의체 판결) · 109
61. 기타 특히 신용할 만한 정황에 의하여 작성된 문서(大判 2017도12671) ············· 111
62. ‘공범에 대한 사법경찰관 작성 피의자신문조서’ 및 ‘전문진술’의 증거능력(大判 2019도11552) · 112
63. 진술조서, 전문진술, 전문진술을 기재한 조서의 증거능력(大判 2015도12981,2015전도218) · 114
[18] 자백보강법칙 ····························································································· 116
64. 자백에 대한 보강증거의 자격과 범위(大判 2017도20247) ································· 116
65. 자백에 대한 보강증거의 범위(大判 2017도17628) ············································ 118
[19] 재판의 기본개념 ························································································ 119
66. 재판서 경정의 방법(大判 2017도18536) ························································· 119
[20] 재판의 확정과 효력 ···················································································· 120
67. 보호처분 불처분결정과 일사부재리의 원칙(大判 2016도5423) ··························· 120
68. 재심판결의 기판력의 범위(大判 2016도756) ···················································· 122
69. 고발 후의 통고처분과 일사부재리의 원칙(大判 2014도10748) ··························· 123
70. 과형상 일죄와 기판력의 범위(大判 2017도11687) ············································ 124
71. 기판력과 공소사실의 동일성(大判 2015도11679) ············································· 125
72. 기판력과 공소사실의 동일성(大判 2013도7649) ··············································· 126
73. 포괄일죄와 기판력의 범위(大判 2017도3373) ·················································· 127
[21] 소송비용 ··································································································· 129
74. 소송비용의 재판에 대한 불복(大判 2016도12437) ············································ 129
75. 무죄판결에 대한 비용보상(大決 2018모906) ···················································· 130
[22] 상소의 일반이론 ························································································ 131
76. 약식명령에 대한 정식재판청구권 회복의 사유(大決 2017모1557) ······················· 131
77. 상소권회복청구의 시기(大判 2018도15109) ····················································· 132
78. 항소심판결 선고 후의 항소권 회복청구(大決 2016모2874) ································ 134
79. 부정기형과 불이익변경금지의 원칙(大判 2020도4140, 전원합의체 판결) ············· 135
80. 보안처분과 불이익변경금지의 원칙(大判 2016도15961) ···································· 139
81. 보안처분과 불이익변경금지의 원칙(大判 2019도11540) ···································· 140
82. 보안처분과 불이익변경금지의 원칙(大判 2018도13367) ···································· 142
[23] 항 소 ········································································································ 143
83. 소송기록접수통지 후 선임된 사선변호인에 대한 소송기록접수통지 여부(大決 2015도10651, 전원합의체 결정) ···················································································· 143
84. 항소이유서제출기간 도과 후 선임된 사선변호인에 대한 소송기록접수통지(大判 2019도4221) · 145
85. 재감자에 대한 소송기록접수통지의 방법(大決 2017모1680) ······························ 147
86. 재감자에 대한 소송기록접수통지의 방법(大決 2017모2162) ······························ 148
87. 항소이유서 제출기간의 계산방법(大決 2020모3694) ········································· 149
88. 항소이유서 제출기간 경과 전의 심판(大判 2017도13748) ································· 150
89. 항소법원의 심판범위(大判 2016도18553) ························································ 151
90. 항소심에서의 불출석재판의 허용요건(大判 2019도5426) ··································· 152
91. 항소심에서 공시송달의 허용요건(大判 2018도14531) ······································· 153
92. 변호인의 피고인신문권(大判 2020도10778) ····················································· 154
93. 제1심 증언의 신빙성 유무에 대한 항소심의 판단(大判 2018도17748) ················ 155
94. 항소기각의 방법(大判 2019도17995) ······························································ 157
95. 소송기록접수통지의 상대방(大決 2018모642) ·················································· 158
[24] 상 고 ········································································································ 159
96. 소송절차의 법령위반과 상고이유(大判 2018도19034) ······································· 159
97. 상고이유 제한의 법리(大判 2017도16593-1, 전원합의체 판결) ························· 160
98. 재심청구의 사유와 상고이유(大判 2016도11969) ············································· 165
99. 양형자료의 변동과 상고이유(大判 2017도14769) ············································· 166
100. 양형과경을 이유로 하는 검사의 상고(大判 2017도2188) ································· 167
101. 양형부당과 상고이유(大判 2020도8358) ························································ 168
[25] 항 고 ········································································································ 170
102. 항고 및 재항고의 절차(大決 2017모1377) ····················································· 170
103. 항고법원의 소송기록접수 등의 통지(大決 2018모1698) ··································· 171
[26] 재 심 ········································································································ 172
104. 재심대상판결의 판결서가 발견되지 않은 경우(大決 2015모2229, 전원합의체 결정) · 172
105. 재심의 대상 및 사유(大決 2015모3243) ························································ 175
106. 위헌결정과 재심사유(大決 2015모1475) ························································ 177
107. 위헌결정과 재심사유(大判 2019도15167) ······················································ 179
108. 재심사유가 되는 위헌결정의 소급효가 미치는 범위(大決 2015모2204) ············· 180
109. 군사법원의 판결에 대한 재심사건의 관할(大決 2019모3197) ··························· 182
110. 재심개시절차에서의 사실조사(大決 2019모3554) ············································ 183
111. 경합범과 재심(大判 2018도6185) ································································· 184
112. 재심판결과 불이익변경금지의 원칙 등(大判 2018도13382) ······························ 186
113. 재심판결과 불이익변경금지의 원칙(大判 2015도15782) ·································· 187
[27] 비상상고 ··································································································· 189
114. 비상상고의 대상(大判 2019오1) ··································································· 189
115. 사실오인과 비상상고(大判 2018오2) ····························································· 190
116. 사실오인과 비상상고(大判 2017오1) ····························································· 192
[28] 약식절차 ··································································································· 193
117. 정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부(大判 2019도15700) · 193
118. 정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부(大判 2020도355) · 194
[29] 즉결심판절차 ····························································································· 195
119. 범칙금 납부기간의 의미(大判 2017도13409) ················································· 195
120. 인장이나 지장이 없는 정식재판청구서의 적법성 여부(大決 2017모3458) ·········· 196
[30] 소년에 대한 특별절차 ················································································· 197
121. 소년법 제53조 본문의 적용범위(大判 2018도3768) ········································ 197
[31] 피해자 보호절차 ························································································ 198
122. 배상명령의 제외사유(大判 2017도4088) ························································ 198
123. 배상명령의 적법성(大判 2018도17726) ························································· 199
[32] 재판의 집행 ······························································································· 200
124. 추징판결 집행의 대상(大決 2020모4058) ······················································ 200
[33] 형사보상과 명예회복 ·················································································· 201
125. 미결구금일수가 본형에 산입된 경우와 형사보상(大決 2017모1990) ·················· 201

참고판례 ··········································································································· 202
판례색인 ··········································································································· 205

〈 서 문 〉
“5년간 판례정리”에 대하여

본서는 2016년 하반기부터 2021년 상반기까지 총 5년간의 대법원 판례를 정리한 교재이다. 본서의 특징을 설명하면 다음과 같다.

1. 사실관계의 정리
판례는 구체적이고 특정한 사건에 대한 대법원의 판단이다. 그러므로 그 사건의 사실관계를 모르면서 판결요지만 공부하는 것은 어떤 영화의 줄거리도 모르면서 그 영화에 대해서 논하는 것처럼 실로 무의미하고 어리석은 행동이다. 이에 본서에서는 가장 먼저 판례의 사실관계를 정리하여 소개함으로써 판례를 보다 정확하고 깊게 이해할 수 있도록 하였다.

2. 쟁점의 부각
어떤 사건이 제1심이나 항소심에서 종결되지 않고 상고심인 대법원까지 올라왔다는 것은 그 사건에서 무엇인가 다투어지는 쟁점이 있었다는 것을 의미한다. 따라서 이러한 쟁점이 무엇인지를 모르고서 판례를 공부하는 것은 어떤 문제의 내용도 모르고서 해설만 읽는 것과 마찬가지로 역시 무의미하다. 이에 본서에서는 판례의 내용을 소개하기 전에 먼저 질문의 형태로 그 사건에서 다투어졌던 쟁점을 세분화하여 구체적으로 부각시킴으로써 판례를 보다 정확하게 이해할 수 있도록 하였다.

3. 중요부분의 강조
판례를 정식으로 공부하기 위해서는 판결문 전체를 읽어야 하겠지만, 그 내용이 방대하기 때문에 대법원은 판례의 핵심적 내용을 “판결요지”의 형태로 정리해서 제공하고 있다. 이에 따라 본서에서는 판결요지는 전체를 수록하였고, 이것만으로 이해가 어려울 경우에는 판결문에서 판결이유를 발췌해서 소개하였다. 그러나 최근에는 이 판결요지의 분량도 매우 많아져서 학습의 부담을 가중시키고 있다. 이에 본서에서는 객관식 문제의 지문으로 출제가 가능하거나 주관식 문제의 답안에 서술해야만 하는 중요부분에 대해서는 언더라인이나 고딕체로 강조함으로써 학습의 능률을 높이고 최종정리시에 신속한 정리가 가능하도록 하였다.

2021.6.21.
법학박사 신 호 진