온라인서점
Preface
2024년 경찰승진시험은 최신판례를 바탕으로, 최신의 사안들이 집중 출제되었다. 또한 단문점수
보다는 사례점수에 초점을 맞추어 채점이 이루어져 시험을 응시한 많은 현직분들이 곤란을 겪었
다. 핵심은 단지 암기가 아니라 얼마나 형사절차를 제대로 이해하느냐에 따라 득점이 나올 수 있
는 출제와 채점이 이루어졌다는 것이다. 대한민국 최고의 형사법전문가인 현직들을 대상으로 한
시험으로서, 수사권독립, 책임수사제도 등을 지탱할 수 있는 수험과정이라는 점에서 충분히 수긍
할 수 있는 대목이다.
이에 필자는 경찰승진시험이 단순한 암기경연대회가 아니라는 점을 숙고하여, 단문의 학습이 단지
암기를 위한 전단계가 아니라, 형사절차를 제대로 이해하고 사례의 풀이를 위한 초석이 되는 학습
이라는 점을 강조하기 위해, 전체적으로 순서를 재배열하였다. 본서의 순서 재배열은 수사에서 증
거부터 체계적으로 학습이 이루어짐과 동시에 자연스럽게 형사절차를 이해하고 사례를 쓸 능력이
배양될 수 있도록 하기 위함이다.
또한 사례출제가 빈발하는 수사상 압수·수색절차라는 단문을 추가하였고, 형사절차의 이해에서
큰 의미가 없는 3~4개의 단문을 삭제하였다.
본서의 독자에게 당부하고 싶은 말이 있다면, 단문을 단순히 암기용으로 준비할 것이 아니라 전체
형사절차를 이해하여 사례학습의 초석을 다져야 한다는 것이다.
경찰승진 시험은 경찰내부에 엄청난 활력소가 된다. 승진시험 공부를 통해 개정된 법령과 최신판례에
대한 지식을 얻고 그 지식을 활용하여 상당수의 사건을 공정하고 합리적으로 처리할 수 있기 때문이다.
심지어 승진공부를 하는 1명으로 인해 십 수 명이 원활하게 업무를 처리하곤 한다.
필자는, 실무, 판례, 학계의 견해에 맞추어 상당한 내용의 단문서술을 정비하였다. 또한 촉박한
시간에 학습을 하고 채점을 하는 많은 분들의 노고를 덜어드리기 위해, 학습 및 채점난이도가 있
는 중요단문들에 대해 채점기준표를 예시로 작성하였다. 본서의 특징은 다음과 같다.
첫째 수사권조정과 관련한 최신개정법령(2023.11.17.개정)까지 「검사와 사법경찰관의 상호협력
과 일반적 수사준칙에 관한 규정」을 분석·반영하였고, 영상녹화물의 증거능력과 관련한
규정을 개편한 성폭력처벌법까지도 철저히 반영하였다.
둘째 본서를 바탕으로 사례풀이까지 연계하여 손쉽게 공부할 수 있도록 수사와 증거분야에 있
어서 세세한 논점과 내용을 정비하고 최신판례를 적극 반영하였다. 특히 압수·수색절차와
관련하여 많은 판례가 나오고 있다는 점을 감안하여 이를 별도의 단문으로 수록하였다.
셋째 출제유력한 중요단문들에 대해 채점기준표를 만들어 학습과 채점의 편의를 도모하고, 무엇
이 키워드인지를 독자들이 명확히 이해할 수 있도록 하였다.
넷째 전체적인 검토를 판례와 현행법령의 해석론과 일치시킴으로써, 학설과 판례를 유기적으로
이해할 수 있도록 하였다.
다섯째 체계적으로 쌓아가는 학습을 위해 단문의 목차를 재정비하여 단문순서대로의 학습만으
로도 이해의 폭이 넓어질 수 있도록 기획하였다.
단문은 결국 암기하여야 한다. 그러나 처음부터 암기위주로 학습하는 것은 법을 제대로 이해하고
향후 이어질 사례학습에 결코 도움이 되지 않는다. 결국, 이해 없는 암기는 사상누각(沙上樓閣)에
불과하다. 필자는 단문암기의 편의를 위해 형사소송법 주관식 단문X노트를 최대한 빠른 시기에 함
께 발매할 예정이며, 통합사례 역시 최신 논점을 반영하여 상당수를 개정할 예정이다. 단문에 대한
충실한 이해는 향후 이어질 단문암기와 사례학습에 많은 도움이 될 것이다.
본서가 나오기까지 함께 해준 김백선, 홍민교, 이종배, 노채선님께 감사의 말을 전한다. 또한
필자의 강의가 보다 발전할 수 있도록 여건을 마련해준 하우패스의 권형진, 지호남님께도 감
사드린다. 최신의 출제경향의 변화에 최대한 부응할 수 있는 다양한 프로그램과 강의로 독자분들
과 함께 할 것을 약속드림과 동시에 독자분들의 노력과 열정, 진심에 경의를 표하며 본서의 서문
을 마무리하기로 한다.
2024. 1.22.
필자 정주형
Contents
제1편 형사소송법 서론
Theme 1. 실체진실주의(경정91, 경간2018) ★ ··············································································· 3
Theme 2. 적정절차의 원리 ··········································································································· 9
Theme 3. 신속한 재판의 원칙(행시93) ······················································································ 13
Theme 4. 진술거부권(경정83/2022, 경감89, 경간2006) ★ ························································· 17
Theme 5. 진술거부권의 효과(경정93, 경간90/2011) ★★ ························································· 23
Theme 6. 무죄추정의 원칙(경정2020, 경간94) ★ ····································································· 27
Theme 7. 변호인의 소송법상 지위와 권한(사시90) ······························································ 31
Theme 8. 국선변호인(사시85, 경간2021) ★★ ··········································································· 37
Theme 9. 변호인의 접견교통권(경정95/2010/2024, 경간2017) ★★ ········································· 45
Theme 10. 피의자와 피고인의 접견교통권(경감93, 법원행시2006) ★ ······································ 53
제2편 수 사
Theme 11. 검사와 사법경찰관리의 관계(경정80, 경간91/2010) ★★★ ···································· 61
Theme 12. 피의자의 소송법상 지위와 권리(경감77/88), (경간85/87/91/2019) ★★★ ··············· 73
Theme 13. 수사의 의의와 한계(경정84, 경감87, 경간84) ★★ ·················································· 79
Theme 14. 수사의 단서(경간88) ·································································································· 87
Theme 15. 불심검문★★ ············································································································· 91
Theme 16. 소지품검사의 적법성(경정2015, 경간2008) ★ ···························································· 99
Theme 17. 수사의 조건(경정91, 친고죄의 고소전수사경간2004) ★★★ ······································ 103
Theme 18. 함정수사(경정2006/2024, 위법한 함정수사의 소송법상 효과－경간2005)★ ················· 111
Theme 19. 친고죄의 고소(경간81/85, 고소의 추완 행시88/2007) ················································· 115
Theme 20. 고소불가분의 원칙(고소의 효력범위) (경정89/2006/2021, 경간77/2009) ★ ············ 123
Theme 21. 고소의 취소(경정2009, 경감91) ★ ············································································· 127
Theme 22. 고소의 포기(경정2010) ★ ························································································· 131
Theme 23. 고소와 고발의 이동(경정2007, 경간2001) ★★ ························································ 135
Theme 24. 감청(도청)(경정93, 경간2000) ★★★ ······································································· 141
Theme 25. 피의자신문 ··············································································································· 149
Theme 26. 변호인의 피의자신문참여권(경정2017) ★★ ·························································· 155
Theme 27. 수사상 영상녹화 및 영상녹화물의 증거능력★★★ ··········································· 159
Theme 28. 임의수사의 본질과 한계(경정95) ★★ ·································································· 167
Theme 29. 임의동행(경정2011) ★★★ ······················································································ 171
Theme 30.거짓말탐지기 검사결과의 증거능력(경간2007) ★★ ············································ 179
Theme 31. 영장주의(경정75/90, 경간85, 영장주의 예외 경간2001/2015) ★★★ ·························· 187
Theme 32. 피의자의 체포와 구속의 요건(사시80/94) ··························································· 195
Theme 33. 영장에 의한 체포★ ····························································································· 201
Theme 34. 긴급체포★ ············································································································ 205
Theme 35. 긴급체포되어 구속된 자의 수사상의 방어권(경간2008) ★ ································· 211
Theme 36. 현행범인의 체포(경감84/93, 경간84/92) ★ ··························································· 215
Theme 37. 구속전 피의자심문제도(영장실질심사제도) (경정99, 경간2007/2017) ★★ ········· 219
Theme 38. 이중구속과 별건구속(경정2012), (경간13사례) ★ ··················································· 225
Theme 39. 체포·구속적부심사제도(사시80, 행시97, 경간2022) ★★ ···································· 233
Theme 40. 보증금납입조건부 피의자석방(피의자 보석, 기소전 보석)(사시98) ★★ ········· 241
Theme 41. 보 석(경감90, 경간94) ····························································································· 249
Theme 42. 수사상 압수·수색의 절차★★★ ········································································· 257
Theme 43. 전자정보의 압수·수색★★ ················································································ 263
Theme 44. 압수물의 가환부와 환부(경정2014, 경간2016) ★ ···················································· 269
Theme 45. 압수·수색에 있어서의 영장주의의 예외(경정2008, 경간2001) ★★★ ············· 277
Theme 46. 체포현장에서의 압수·수색·검증(경정2016, 경간2013) ★★★ ························· 285
Theme 47. 긴급체포시의 압수·수색·검증★★★ ······························································ 289
Theme 48. 임의제출물 등의 압수(제218조)★ ········································································ 293
Theme 49. 신체검사(체내강제수사) (경간2005) ★★★ ·························································· 297
Theme 50. 강제채뇨★ ··········································································································· 304
Theme 51. 강제채혈★ ············································································································ 309
Theme 52. 수사상의 증거보전(경정77, 경감83, 경간2002) ★★ ················································ 313
Theme 53. 준항고 ····················································································································· 321
Theme 54. 수사기관의 처분에 대한 준항고★★★ ······························································· 327
Theme 55. 수사에 대한 사법적 통제(경정2012, 경간2003) ★ ·················································· 333
Theme 56. 위법수사의 구제(경정89, 사시81, 행시93, 경간2021) ★★ ········································ 337
Theme 57. 인신구속과 인권보장 (경정91/2000, 경간 2002) ★ ·················································· 341
Theme 58. 구속된 피의자의 인권보장제도(경정2000/2019) ★★ ········································· 344
Theme 59 공소제기 후의 수사★★★ ·················································································· 349
Theme 60. 공소제기 후의 임의수사(경간2004/2014, 법원행시2018) ★★★ ···························· 357
제3편 증 거
Theme 61. 증거의 의의와 종류(경정98, 경간76/87) ································································· 363
Theme 62. 증거재판주의★★ ·································································································· 367
Theme 63. 엄격한 증명의 대상(경정84/96, 경간2000) ★ ························································· 375
Theme 64. 거증책임(사시91) ★★★ ·························································································· 379
Theme 65. 거증책임의 전환(경간2009) ★ ················································································· 387
Theme 66. 자유심증주의와 그 예외(경정89) ★★ ···································································· 391
Theme 67. 위법수집증거배제법칙(경정99, 경간2004) ★ ·························································· 399
Theme 68. 독수의 과실이론(경간2012) ★★ ············································································· 405
Theme 69. 자백배제법칙(자백의 임의성)(경정94/2011, 경간93/2003) ★ ································· 409
Theme 70. 약속에 의한 자백(경간2018) ★★ ············································································ 419
Theme 71. 진술의 임의성 ········································································································ 423
Theme 72. 전문증거와 전문법칙(경정82, 경간86/2012) ···························································· 427
Theme 73. 검사작성의 피의자신문조서(경감91, 사시86) ★★ ·················································· 433
Theme 74. 사법경찰관작성의 피의자신문조서(경정2008) ★★ ··············································· 439
Theme 75. 진술조서(경정2016, 경간2022) ★★ ·········································································· 445
Theme 76. 진술서의 증거능력(경정2000, 사시92) ★★★ ························································ 451
Theme 77. 녹음테이프의 증거능력(경정2015, 경간2005) ★★★ ············································ 459
Theme 78. 수사기관 작성의 검증조서(사경작성 검증조서의 증거능력－경간2008) ★★ ········· 467
Theme 79. 실황조사서(경정2017, 경간2001/2015) ★ ································································· 475
Theme 80.감정서 ····················································································································· 481
Theme 81. 제314조를 논함★★★ ························································································· 485
Theme 82. 당연히 증거능력이 있는 서류 ············································································· 495
Theme 83. 전문진술의 증거능력★★ ··················································································· 499
Theme 84. 조사자 증언(경정2008, 경간2014) ★ ······································································ 507
Theme 85. 당사자의 동의와 증거능력(경정83/2021, 경간2015) ★ ·········································· 511
Theme 86. 탄핵증거(경간2011) ★★★ ····················································································· 519
Theme 87. 자백과 보강증거(경정78/2022, 경간83/2006) ★★ ················································· 527
Theme 88. 공판조서의 증거능력과 증명력(공판조서의 배타적 증명력 경간2007) ★★ ············ 533
Theme 89. 공범자의 자백(경정2007/2019, 경간2000) ★★★ ·················································· 541
Theme 90. 사진의 증거능력(경간2016) ★★★ ······································································ 547
Theme 91. 비밀촬영사진★ ····································································································· 555
4편 형사소송의 특수문제
Theme 92. 사법경찰관의 불송치결정권★ ········································································· 561
Theme 93. 불기소처분(경정90, 사시93) ★ ··········································································· 567
Theme 94. 기소독점주의(경정2009, 경간86/2012) ★ ···························································· 571
Theme 95. 기소편의주의에 대한 규제(경감80, 사시84) ····················································· 575
Theme 96. 기소강제절차(재정신청) (경정82/88, 행시92) ★★★ ········································ 579
Theme 97. 공소시효(경정2020, 경간2010) ★ ········································································ 587
Theme 98. 공소권남용 ········································································································· 595
Theme 99. 피고인의 소송법상 지위(경간 81, 행시90) ························································· 601
Theme 100. 공소장일본주의(경간2019, 법행2018) ★ ····························································· 607
Theme 101. 증거개시제도(경정2018) ····················································································· 612
Theme 102. 변호인의 형사기록열람·등사권(경정2013) ★ ·················································· 617
Theme 103. 증인적격★ ········································································································· 621
Theme 104. 참고인과 증인의 지위 비교(경간2020, 사시2003) ★★ ···································· 625
Theme 105. 증인의 권리와 의무(경정76, 경간88) ································································ 631
Theme 106. 간이공판절차(경간2020, 사시95) ★ ···································································· 637
Theme 107. 피해자의 형사절차상의 지위(경정2018, 경간2006/2014) ★ ······························ 641
Theme 108. 약식절차★ ········································································································ 647
Theme 109. 즉결심판절차(경정2013, 경간2002/2016) ★★ ······················································ 655
