문형사 신호진 2022년판 형사소송법 3년간 판례정리(2019년 7월~ 2022년 6월)

제목: 2022년판 형사소송법 3년간 판례정리(2019년 7월~ 2022년 6월)
표지:

출판사: 문형사
저자: 신호진
페이지: 123쪽
가격: 12,000원
발행일: 2021년 7월 4일 (출고가능일 7월 4일)
ISBN: 9791166870811

< 서 문 >
"3년간 최신판례"에 대하여…

본서는 2019년 하반기부터 2022년 상반기까지 총 3년간의 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.

2022. 6. 23.
법학박사 신 호 진

< 목 차 >

…… 형 사 소 송 법 ……
[1] 수사의 방법 ···································································································· 3
1. 임의동행의 종류 (大判 2020도398) ····································································· 3
2. 피의자신문시 보호장비 사용 여부 및 변호인의 피의자신문 참여권 침해 여부 (大決 2015모2357) ········································································································ 4
[2] 대인적 강제수사 ······························································································ 6
3. 구속영장 발부 후 구속의 집행시기 (大判 2020도16438) ········································ 6
[3] 대물적 강제수사 ······························································································ 7
4. 압수와 사건과의 관련성 (大判 2021도3756) ························································· 7
5. 압수·수색과 사건과의 관련성 (大判 2019도14341) ················································ 8
6. 압수·수색영장의 제시방법 (大決 2019모3526) ···················································· 10
7. 압수·수색에의 참여권 (大判 2020도10729) ························································· 11
8. 전자정보에 대한 압수의 방법 (大決 2021모1586) ··············································· 13
9. 헌법불합치결정과 그에 따른 개정 형사소송법의 소급적용 여부 (大判 2018도13458) · 15
10. 임의제출된 정보저장매체에 대한 압수의 범위 (大判 2016도348, 전원합의체 판결) ····· 17
11. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2019도4938) ··········· 22
12. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2021도11170) ········· 24
[4] 수사의 종결 ·································································································· 29
13. 증인에 대한 검찰 진술조서의 증거능력 (大判 2013도6825) ································ 29
[5] 공소와 공소권이론 ························································································· 31
14. 공소권남용의 효과 (大判 2016도14772) ··························································· 31
[6] 공소제기의 방식 ···························································································· 32
15. 공소제기의 방식과 하자의 치유 (大判 2019도17150) ········································· 32
16. 공소제기의 방식 (大判 2019도16259) ······························································ 33
17. 공소사실이 부분적으로 특정되지 않은 경우 (大判 2019도10086) ························ 34
[7] 공소시효 ······································································································· 36
18. 공소시효의 기산점 (大判 2017도18693) ··························································· 36
19. 공직선거법 위반죄의 공소시효 기산일 (大判 2019도8815) ································· 37
[8] 변호인 ·········································································································· 38
20. '피고인이 심신장애의 의심이 있는 때' 국선변호인의 선정 여부 (大判 2019도8531) ·························································································································· 38
21. 반의사불벌죄에서 변호인의 처벌불원의사표시의 대리 (大判 2019도10678) ··········· 40
[9] 소송행위 ······································································································· 42
22. 재판확정기록의 열람·등사와 정보공개법에 의한 공개청구의 관계 (大決 2021모3175) ·························································································································· 42
[10] 공판심리의 범위 ·························································································· 44
23. 공소사실의 동일성 (大判 2020도3593) ····························································· 44
24. 공소사실의 비양립관계 여부 (大判 2018도3688) ··············································· 45
25. 공소장변경의 필요성 (大判 2019도4608) ·························································· 46
26. 공소장변경허가신청서 부본을 송달하지 않은 경우 (大判 2019도7217) ················· 48
[11] 공판정에서의 심리 ······················································································· 50
27. 전문심리위원 참여절차의 적법성 (大判 2018도19051) ······································· 50
[12] 증거조사와 강제처분 ···················································································· 51
28. 증인의 불출석에 대한 법원의 조치 (大判 2020도2623) ······································ 51
29. 증인신문시 반대신문의 보장 (大判 2016도17054) ············································· 53
[13] 증명의 기본원칙 ·························································································· 55
30. 검사의 사전면담 후 증인의 증언의 신빙성 (大判 2020도15891) ·························· 55
31. 성폭행 피해자의 진술의 증명력 판단방법 등 (大判 2020도6965,2020전도74) ······· 58
[14] 위법수집증거배제법칙 ··················································································· 60
32. 위법수집증거와 증거배제의 기준 (大判 2018도20504) ······································· 60
33. 외국인에 대한 체포·구속시 영사통보권을 고지하지 않은 경우 (大判 2021도17103) ·· 63
[15] 전문법칙 ····································································································· 65
34. 본래증거와 전문증거의 구별기준 (大判 2018도14303, 전원합의체 판결) ·············· 65
35. 형사소송법 제312조 제3항의 적용범위 (大判 2016도9367) ································ 67
36. 압수조서에 기재된 '압수경위'의 증거능력 인정요건 (大判 2019도13290) ············· 69
37. 정당하지 않은 증언거부와 제314조의 적용여부 (大判 2018도13945, 전원합의체 판결) ·························································································································· 71
38. 공범에 대한 사법경찰관 작성 피의자신문조서 및 전문진술의 증거능력 (大判 2019도11552) ··············································································································· 73
39. ?성폭력처벌법?상 영상녹화물의 증거능력 (大判 2021도14530,2021전도143) ·························································································································· 75
[16] 재판의 기본개념 ·························································································· 77
40. 재판서 경정의 방법 (大判 2017도18536) ························································· 77
[17] 재판의 확정과 효력 ······················································································ 79
41. 재심판결의 기판력의 범위 (大判 2016도756) ···················································· 79
[18] 소송비용 ················································&midd