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(\u003d법관의 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