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출제가능한 판례들을 형사소송법의 이론적 체계에 따라 일목요연하게 정리함으로써 판례교재를 별도로 볼 필요가 없도록 하였다. 특히 최근 5년간의 판례에 대해서는 최신이라는 표지를 달아 최신판례의 높은 출제비중에 효율적으로 대비할 수 있도록 하였다. 2023년판에서는 사례형 문제(Case)의 출제경향을 파악하고 답안작성방법을 익힐 수 있도록 2012년 이후 2021년까지의 변호사시험, 2001년 이후의 사법시험, 그리고 2011년 이후의 5급공채시험 문제 중에서 논점별로 가장 표준적인 문제 142문제를 선정하여 수록하였다.

제1편 형사소송법의 일반이론
제1장 형사소송법의 기본개념
제1절 형사소송법의 의의와 성격 ············································································· 3
[1] 형사소송법의 의의/ 3 [2] 형사소송법의 성격/ 4
제2절 형사소송법의 법원과 적용범위 ······································································· 5
[1] 형사소송법의 법원/ 5 [2] 형사소송법의 적용범위/ 7
제3절 형사소송법의 발전 ······················································································ 11
[1] 서구 형사소송법의 발전/ 11 [2] 우리 형사소송법의 발전/ 12
제2장 형사소송의 이념과 본질
제1절 형사소송의 이념 ························································································· 13
[1] 형사소송의 이념과 상호관계/ 13 [2] 실체적 진실주의/ 13
[3] 적정절차의 원칙/ 16 [4] 신속한 재판의 원칙/ 18
제2절 형사소송의 기본구조 ··················································································· 24
[1] 형사소송구조론의 의의/ 24 [2] 규문주의와 탄핵주의/ 24
[3] 직권주의와 당사자주의/ 25
제3절 형사소송절차의 본질 ··················································································· 29
1] 형사소송절차의 의의와 본질/ 29 [2] 형사소송의 실체면과 절차면/ 30

제2편 수사와 공소
제1장 수 사
제1절 수사의 기본개념 ························································································· 35
[1] 수사의 의의와 수사기관/ 35 [2] 수사의 구조와 피의자의 지위/ 47
[3] 수사의 조건/ 51
제2절 수사의 개시 ······························································································· 59
[1] 수사의 단서/ 59 [2] 불심검문/ 60
[3] 고 소/ 69 [4] 기타의 수사단서/ 88
제3절 수사의 방법 ······························································································· 94
[1] 총 설/ 94 [2] 임의수사/ 103 [3] 강제수사/ 115
제4절 대인적 강제수사 ······················································································· 119
[1] 피의자의 체포/ 119 [2] 피의자 구속/ 139
[3] 피의자·피고인의 접견교통권/ 154 [4] 체포·구속된 피의자의 석방제도/ 161
제5절 대물적 강제수사 ······················································································· 171
[1] 수사상의 압수·수색/ 171 [2] 수사상의 검증/ 197
[3] 압수·수색·검증과 영장주의의 예외/ 208
[4] 수사상의 감정/ 228 [5] 기술적 수단에 의한 수사/ 231
제6절 수사상의 증거보전 ···················································································· 245
[1] 증거보전/ 245 [2] 참고인에 대한 증인신문/ 250
제7절 수사의 종결 ····························································································· 255
[1] 수사종결의 의의와 종류/ 255 [2] 불송치결정·불기소결정에 대한 불복방법/ 263
[3] 공소제기 후의 수사/ 268
제2장 공소의 제기
제1절 공소와 공소권이론 ···················································································· 276
[1] 공소의 의의/ 276 [2] 공소권이론/ 276 [3] 공소권남용론/ 278
제2절 공소제기의 기본원칙 ················································································· 287
[1] 국가소추주의/ 287 [2] 기소독점주의/ 287
[3] 기소편의주의/ 289 [4] 공소의 취소/ 294
[5] 재정신청과 기소강제절차/ 298
제3절 공소제기의 방식 ······················································································· 308
[1] 서면주의/ 308 [2] 공소장의 기재사항/ 310 [3] 공소장일본주의/ 325
제4절 공소제기의 효과 ······················································································· 332
[1] 소송계속/ 332 [2] 심판범위의 한정/ 333 [3] 공소시효의 정지/ 339
제5절 공소시효 ·································································································· 340
[1] 공소시효의 의의와 본질/ 340 [2] 공소시효의 기간/ 343
[3] 공소시효의 정지/ 350 [4] 공소시효의 완성/ 356

제3편 공 판
제1장 소송주체
제1절 법 원 ······································································································ 360
[1] 법원의 의의와 종류/ 360 [2] 법원의 관할/ 362 [3] 제척·기피·회피/ 378
제2절 검 사 ······································································································ 390
[1] 검사와 검찰청/ 390 [2] 검사의 조직과 구조/ 392
[3] 검사의 소송법상 지위/ 395
제3절 피고인 ····································································································· 399
[1] 피고인의 의의와 특정/ 399 [2] 피고인의 당사자능력과 소송능력/ 405
[3] 피고인의 소송법상 지위/ 410 [4] 무죄추정의 원칙/ 414
[5] 피고인의 진술거부권/ 420
제4절 변호인 ····································································································· 429
[1] 변호인제도의 의의/ 429 [2] 변호인의 선임·선정/ 430
[3] 변호인의 지위와 권한/ 443 [4] 보조인/ 454
제2장 소송행위와 소송조건
제1절 소송행위 ·································································································· 455
[1] 소송행위의 의의와 종류/ 455 [2] 소송행위의 일반적 요소/ 458
[3] 소송행위에 대한 가치판단/ 464 [4] 소송서류/ 476
제2절 소송조건 ·································································································· 488
[1] 소송조건의 의의와 종류/ 488 [2] 소송조건의 조사와 흠결/ 489
[3] 소송조건의 추완/ 492
제3장 공판절차
제1절 공판절차의 기본원칙 ················································································· 493
[1] 공판절차의 의의/ 493 [2] 공판절차의 기본원칙/ 493
제2절 공판심리의 범위 ······················································································· 499
[1] 심판의 대상/ 499 [2] 공소장변경/ 503
제3절 공판준비절차 ···························································································· 537
[1] 공판준비절차의 의의/ 537 [2] 광의의 공판준비절차/ 538
[3] 협의의 공판준비절차/ 547
제4절 공판정에서의 심리 ···················································································· 552
[1] 공판정의 구성과 법원의 권한/ 552 [2] 공판기일의 절차/ 562
[3] 공판절차이분론/ 568
제5절 증거조사와 강제처분 ················································································· 571
[1] 법원의 증거조사/ 571 [2] 법원의 강제처분/ 610
제6절 공판절차의 특칙 ······················································································· 633
[1] 간이공판절차/ 633 [2] 공판절차의 정지와 갱신/ 639
[3] 변론의 병합·분리·재개/ 644 [4] 국민참여재판/ 646
제4장 증 거
제1절 증거법의 기본개념 ···················································································· 659
[1] 증거의 의의와 종류/ 659 [2] 증거능력과 증명력/ 663
제2절 증명의 기본원칙 ······················································································· 665
[1] 증거재판주의/ 665 [2] 거증책임/ 677 [3] 자유심증주의/ 684
제3절 위법수집증거배제법칙 ················································································ 696
[1] 위법수집증거배제법칙의 의의 및 연혁/ 696
[2] 위법수집증거배제법칙의 적용범위/ 699
[3] 위법수집증거배제법칙의 적용효과/ 714
제4절 자백배제법칙 ···························································································· 716
[1] 자백의 의의와 효과/ 716 [2] 자백배제법칙/ 719
제5절 전문법칙 ·································································································· 732
[1] 전문증거와 전문법칙/ 732 [2] 전문법칙의 예외/ 737 [3] 진술의 임의성/ 815
제6절 당사자의 동의와 증거능력 ·········································································· 820
[1] 증거동의의 의의와 성질/ 820 [2] 증거동의의 방법/ 822
[3] 증거동의의 의제/ 827 [4] 증거동의의 효과/ 830
[5] 증거동의의 철회 및 취소/ 833
제7절 탄핵증거 ·································································································· 835
[1] 탄핵증거의 의의와 성격/ 835 [2] 탄핵증거의 허용범위 및 자격/ 836
[3] 탄핵의 대상과 범위/ 841 [4] 탄핵증거의 제출과 조사방법/ 843
제8절 자백보강법칙 ···························································································· 844
[1] 자백보강법칙의 의의와 필요성/ 844 [2] 자백보강법칙의 적용범위/ 845
[3] 보강증거의 자격/ 850 [4] 보강증거의 범위/ 854
[5] 자백보강법칙 위반의 효과/ 858
제9절 공판조서의 증명력 ···················································································· 859
[1] 공판조서의 배타적 증명력/ 859 [2] 배타적 증명력이 인정되는 범위/ 860
[3] 배타적 증명력 있는 공판조서/ 863
제5장 재 판
제1절 재판의 기본개념 ······················································································· 865
[1] 재판의 의의와 종류/ 865 [2] 재판의 성립 및 방식/ 867
제2절 종국재판 ·································································································· 873
[1] 유죄판결/ 873 [2] 무죄판결/ 884 [3] 관할위반의 판결/ 887
[4] 공소기각의 재판/ 888 [5] 면소판결/ 895 [6] 종국재판의 부수효과와 부수처분/ 903
제3절 재판의 확정과 효력 ··················································································· 905
[1] 재판의 확정/ 905 [2] 재판의 확정력/ 906 [3] 기판력/ 909
제4절 소송비용 ·································································································· 923
[1] 소송비용의 의의/ 923 [2] 소송비용의 부담자/ 924
[3] 소송비용부담의 절차/ 925 [4] 무죄판결에 대한 비용보상/ 927

제4편 상소·비상구제절차·특별형사절차
제1장 상 소
제1절 상소의 일반이론 ······················································································· 931
[1] 상소의 의의와 종류/ 931 [2] 상소권/ 932 [3] 상소의 이익/ 938
[4] 상소의 제기와 포기·취하/ 946 [5] 일부상소/ 950[6] 불이익변경금지의 원칙/ 960 [7] 파기판결의 구속력/ 974
제2절 항 소 ······································································································ 979
[1] 항소의 의의와 항소심의 구조/ 979 [2] 항소이유/ 983
[3] 항소심의 절차/ 987
제3절 상 고 ····································································································· 1009
[1] 상고의 의의와 상고심의 구조/ 1009 [2] 상고이유/ 1010
[3] 상고심의 절차/ 1015 [4] 비약적 상고/ 1022 [5] 상고심판결의 정정/ 1023
제4절 항 고 ····································································································· 1025
[1] 항고의 의의와 종류/ 1025 [2] 항고심의 절차/ 1027 [3] 준항고/ 1029
제2장 비상구제절차
제1절 재 심 ····································································································· 1034
[1] 재심의 의의와 구조/ 1034 [2] 재심이유/ 1038
[3] 재심개시절차/ 1053 [4] 재심심판절차/ 1060
제2절 비상상고 ································································································ 1064
[1] 비상상고의 의의/ 1064 [2] 비상상고의 대상/ 1065
[3] 비상상고의 이유/ 1066 [4] 비상상고의 절차/ 1071
제3장 특별형사절차
제1절 약식절차 ································································································ 1075
[1] 약식절차의 의의/ 1075 [2] 약식명령의 청구/ 1076
[3] 약식절차의 심판/ 1077 [4] 정식재판의 청구와 재판/ 1081
제2절 즉결심판절차 ·························································································· 1085
[1] 즉결심판절차의 의의와 성격/ 1085 [2] 즉결심판의 청구/ 1087
[3] 즉결심판청구사건의 심판/ 1088 [4] 정식재판의 청구와 재판/ 1091
제3절 소년에 대한 특별절차 ·············································································· 1094
[1] 서 설/ 1094 [2] 소년보호절차/ 1094 [3] 소년형사절차/ 1097
제4절 피해자 보호절차 ····················································································· 1101
[1] 형사조정절차/ 1101 [2] 배상명령절차/ 1102
[3] 화해절차/ 1109 [4] 국가에 의한 범죄피해자구조제도/ 1110
제4장 재판의 집행과 형사보상 및 명예회복
제1절 재판의 집행 ··························································································· 1114
[1] 재판집행의 일반원칙/ 1114 [2] 형의 집행/ 1117
[3] 재판집행에 대한 구제절차/ 1122
제2절 형사보상과 명예회복 ··············································································· 1125
[1] 형사보상제도/ 1125 [2] 명예회복제도/ 1133

[판례색인] ······································································································ 1135
[사항색인] ······································································································ 1147

〈 서 문 〉

2023년판 “형사소송법요론”에 대해서

형사소송법요론이 형사소송법의 기본교재로서 지향하는 점은, 첫째 이론기본서로서의 역할, 둘째 판례기본서로서의 역할, 그리고 셋째 사례기본서로서의 역할이다.
이러한 기본적인 방침 아래 2023년판에서는 다음과 같은 점에 주력하였다.

1. 판례의 체계적 정리
본서에서는 출제가능한 판례들을 형사소송법의 이론적 체계에 따라 일목요연하게 정리함으로써 판례교재를 별도로 볼 필요가 없도록 하였다. 특히 최근 5년간의 판례에 대해서는 최신이라는 표지를 달아 최신판례의 높은 출제비중에 효율적으로 대비할 수 있도록 하였고, 같아 보이지만 다른 판례에 대해서는 비교로 정리하여 혼동하지 않도록 하였다. 또한 동일한 쟁점에 대해서는 “긍정한 판례”와 “부정한 판례”를 최신판례 순으로 정리하였고, 특히 사례형 문제로 응용이 가능한 판례에 대해서는 “상세한 사실관계”도 소개하였다. 최신판례는 2022년 11월 판례공보까지 반영하였다.

2. 사례형 문제의 체계적 정리
2023년판에서는 사례형 문제(Case)의 출제경향을 파악하고 답안작성방법을 익힐 수 있도록 2012년 이후 2021년까지의 변호사시험, 2001년 이후의 사법시험, 그리고 2011년 이후의 5급공채시험 문제 중에서 논점별로 가장 표준적인 문제 142문제를 선정하여 수록하였다. 해설은 “문제의 제기？학설과 판례 및 결론？문제의 해결”이라는 사례형 문제 해결의 기본적인 방식에 맞추어 답안의 개요를 제시하였는데, 각자 답안지에 정식으로 답안작성연습을 해 본다면 사례형 문제에 대해서 큰 자신감을 가질 수 있을 것이다.

아무리 시험제도와 출제경향 등이 변경될지라도 실력이 뛰어난 사람이 승자가 된다는 것 자체는 절대로 변경되지 않는다! 아무쪼록 2023년판 형사소송법요론이 독자 여러분의 꿈의 실현에 조금이나마 도움이 되기를 진심으로 기원하면서…

2023년 2월 2일
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