고등고시

머리말

2022년 5월9일 이른바 검수완박의 형사소송법 개정이 있었다. 또한 2022년 2월

에는 영장사본의 교부를 내용으로 하는 형사소송법의 일부개정도 있었으며 형사

소송규칙 상으로는 비디오 등 중계장치에 의한 피고인구속신문이나 공판준비기

일, 증인신문절차(원격) 등의 제도가 도입되었다. All-in-One 로스쿨 형사소송법

선택·사례 핵심암기장 제5판에서는 이러한 법개정을 철저히 반영하였고, 일부사

례를 삭제하기는 하였으나 최신판례를 바탕으로 한 사례를 추가함으로써 일정부

분 증보가 이루어졌다.

최근 변호사시험에서는 지속적으로 공판, 상소, 재심 등과 관련한 논점의 반영비

율이 지속적으로 증가하고 있다. 종래 변호사시험은 수사와 증거에만 국한되었던

것과 비교하면, 수험경향의 큰 변화라고 할 수 있겠다.

수험서의 생명은 출제경향을 철저히 반영하여야 한다는 것이다. 이에 본서는 검

찰총장의 청구로 개시된 형제복지원판결(비상상고)까지도 감안하여, 재심과 비상

상고의 문제까지도 보충하였다. 이러한 측면에서 본서는 단순 암기장을 넘어 종

합사례집으로 기능할 수 있게 되었다.

변호사시험은 선택형, 사례형, 기록형으로 구성되어 있다. 현행 제도 하에서 충분

한 시간을 두고 기본서와 사례집을 독파한다는 것은 모순되게도 수험적합적이지

않다. 사실 형사법 1과목이라고 하지만, 형법과 형사소송법은 엄연히 다른 과목이

고, 선택형과 사례형, 기록형 역시 서로 다른 과목이나 마찬가지이다. 로스쿨 3년

이라는 시간이 있지만, 결국 1년도 안되는 기간에 모든 과목의 선택형, 사례형,

기록형을 정리하고 시험을 치러야 한다. 결국 모든 과목을 얼마만큼 효율적으로

정리하고 빠른 시간에 회독하느냐가 수험의 성패를 가르게 된다.

본서는 이러한 변호사시험의 최종마무리에 최적화된 교재임을 자부한다.

본서의 핵심적인 특징은 다음과 같다.

첫째, 수험생이 어려워하는 법조문문제를 체계적으로 비교정리함으로써, 최소 시

간만을 투자하더라도 완벽히 선택형을 대비할 수 있도록 하였다.

둘째, 2022.6.까지의 최신판례를 빠짐없이 지문화함으로써 판례집으로서의 기능

도 겸하도록 하였다.

셋째, 출제유력한 사례논점들을 중심으로, 모든 테마를 사례문제화하여 압축답안

을 구성함으로써 사례적응력에 중점을 두었다. 나아가, 출제가능성이 높은 중

요판례의 사실관계를 바탕으로 사례를 구성함으로써 사례암기장의 학습이 선택

형과 기록형 학습에도 혁신적인 도움을 줄 수 있도록 하였다.

넷째, 최근 주관식 출제빈도가 높은 공판, 상소, 소송행위편의 사례를 추가하였

고, 형제복지원판결을 감안하여 비상상고 사례까지도 추가함으로써 어떠한 사

례에도 충분히 대비가 가능하도록 하였다.

다섯째, 변호사시험뿐 아니라, 5급공채, 법원행시, 경찰승진(경정급) 등의 국가고

시와 최신판례 등도 철저히 분석하여 사례화함으로써 종합사례집으로도 기능하

게끔 하였다.

본서가 나오기까지 함께 해준 네오고시뱅크 가족들에게 감사의 말씀을 전한다.

무엇보다도 본서의 독자들이야말로 필자의 큰 스승이었음을 고백하며 본서의 서

문을 마무리하기로 한다.

2022.6.9.

필자 정주형

제1편 형사소송법 선택형 정리

제 1 형사소송법 서론 ·····································································································2

제 2 소송주체론 ·············································································································7

제 3 법원의 관할 ··········································································································13

제 4 제척·기피·회피 제도 ························································································18

제 5 변호인제도 ···········································································································19

제 6 소송행위 ··············································································································23

제 7 수사총론 ··············································································································29

제 8 고소·고발·자수 ································································································32

제 9 임의수사 ··············································································································37

제 10 체포제도 ··············································································································45

제 11 구속 ······················································································································49

제 12 체포·구속된 자의 석방위한 제도 ·······································································51

제 13 압수·수색·검증의 절차 ·····················································································57

제 14 수사상 증거보전 ··································································································68

제 15 수사의 종결 ·········································································································70

제 16 재정신청 ···············································································································72

제 17 공소제기 ···············································································································75

제 18 공소시효 ···············································································································81

제 19 공소장변경의 제문제 ···························································································86

제 20 공판절차 ··············································································································97

제 21 증인신문 ·············································································································101

제 22 이의신청 ············································································································104

제 23 간이공판절차 ······································································································111

제 24 공판절차의 정지와 갱신 ····················································································106

제 25 소송지휘권 ········································································································107

제 26 국민참여재판 ·····································································································108

제 27 자유로운 증명의 대상 ·······················································································109

제 28 위수증과 증거동의 ·····························································································110

제 29 전문법칙 ·············································································································111

제 30 수사기관 작성의 조서 ························································································116

제 31 제313조 제1항·제2항 ························································································121

제 32 제314조 ·············································································································123

제 33 제315조에 대한 판례의 정리 ·············································································126

제 34 제316조에 대한 판례의 정리 ·············································································127

제 35 증거동의 ············································································································128

제 36 탄핵증거 ············································································································130

제 37 자백의 보강법칙 ································································································132

제 38 유죄판결에 명시될 이유 ····················································································134

제 39 기판력 ···············································································································136

제 40 상소 ···················································································································139

제 41 불이익변경금지의 원칙 ······················································································144

제 42 파기판결의 기속력(법원조직법 제8조) ······························································148

제 43 항소심과 상고심 ································································································149

제 44 항고 ···················································································································153

제 45 비상구제절차(재심과 비상상고) ·········································································157

제 46 특별소송절차 ·····································································································163

제 47 형집행장 ············································································································167

제2편 형사소송법 사례형 정리

예제 1 공소장변경과 필요적 이송 ······································································170

예제 2 성명모용소송과 필요적 변호사건 ·····························································173

예제 3 위장출석과 위장자수 ······················································································177

예제 4 필요적 변호사건에서 무죄가 선고된 경우 ·····················································181

예제 5 변호인 선임계의 추완 ····················································································183

예제 6 수사와 내사 ···································································································185

예제 7 영장없는 체포와 함정수사 ·············································································187

예제 8 신종수사기법-최면수사 ·················································································189

예제 9 불심검문과 신분증명사례 ···············································································191

예제 10 영장신청기각처분에 대한 불복 ······································································193

예제 11 고소불가분의 원칙과 사경의 불송치결정 ·······················································196

예제 12 고소취소의 법률관계 ······················································································198

예제 13 미성년자의 고소취소와 법정대리인의 동의 ··················································200

예제 14 수사상 임의동행 ····························································································202

예제 15 통신비밀보호법상 감청 ··················································································204

예제 16 피의자신문을 위한 구인 ················································································208

예제 17 변호인의 피의자신문참여권 ···········································································210

예제 18 영장없는 신병확보 ·······················································································213

예제 19 체포영장의 긴급집행 도중 혐행범으로 체포한 사안 ···································215

예제 20 구속기간의 계산 ····························································································217

예제 21 피고인 구속과 사전청문절차(제72조) ····························································219

예제 22 변호사의 비닉권과 의뢰인의 특권 ································································222

예제 23 압수·수색의 절차 ························································································233

예제 24 소유권포기와 압수물환부청구권 ····································································237

예제 25 수사상 가환부 ·······························································································240

예제 26 압수·수색·검증에 있어 영장주의의 예외 ··················································242

예제 27 위법한 압수물의 환부 후 임의제출 ······························································245

예제 28 키워드·확장자 검색 후 압수사례 ································································247

예제 29 외국계 이메일 압수·수색사건 ·····································································249

예제 30 수사상 증거보전 ····························································································253

예제 31 재정신청과 재소자특칙 ··················································································256

예제 32 재정신청과 소추금지, 재정결정에 대한 불복 ···············································258

예제 33 공소제기 후 수사 ··························································································262

예제 34 불평등기소 ····································································································268

예제 35 공소시효의 계산 ····························································································270

예제 36 예비적 기재와 재체포의 금지 ·······································································273

예제 37 공소장일본주의 ······························································································277

예제 38 일죄일부의 기소사례 ·····················································································281

예제 39 공소장변경 ····································································································286

예제 40 불출석 특례 및 공소시효의 계산 ··································································295

예제 41 포괄일죄와 이중기소 ·····················································································300

예제 42 재판비공개결정이 위법한 경우 ·····································································303

예제 43 유도신문, 반대신문결여 하자의 치유 ···························································305

예제 44 범죄피해자의 진술보호장치 ··········································································308

예제 45 간이공판절차 ·································································································310

예제 46 철야신문에 의한 자백 ···················································································314

예제 47 전문법칙, 날인이 누락된 영장의 유효성 ·······················································316

예제 48 내사단계에 작성된 진술조서의 증거능력 ······················································322

예제 49 검사작성 공동피고인에 대한 피신조서 ·························································325

예제 50 적법한 절차와 방식에 따라 작성된 조서 ······················································327

예제 51 조서의 실질적 진정성립 ················································································331

예제 52 대질신문조서 ·································································································334

예제 53 공범피신조서와 제314조 ···············································································336

예제 54 제313조 제1항·제2항 진술서 ·······································································338

예제 55 진술녹음 ········································································································341

예제 56 현장녹음의 증거능력 ·····················································································345

예제 57 수사기관이 촬영한 현장사진(비디오)의 증거능력 ·········································349

예제 58 사인이 촬영한 현장사진 ················································································352

예제 59 비진술증거의 대체물인 사진 ·········································································355

예제 60 정당한 증언거부권의 행사 ············································································357

예제 61 정당하지 못한 증언거부권의 행사 ································································359

예제 62 제315조 사례 ·································································································361

예제 63 다른 사건의 공판조서의 증거능력 ································································365

예제 64 공동피고인의 진술에 대한 전문진술 ·····························································367

예제 65 재전문증거사례 ·····························································································370

예제 66 피고인과 변호인의 불출석과 증거동의 ·························································373

예제 67 탄핵증거 ········································································································375

예제 68 공범인 공동피고인의 증인적격 ······································································377

예제 69 공동피고인의 법정진술과 자백의 보강법칙 ··················································379

예제 70 수첩과 자백의 보강법칙 ················································································381

예제 71 상습범과 기판력의 객관적 범위 ····································································383

예제 72 범칙금납부와 기판력 ·····················································································386

예제 73 약식명령, 일죄일부의 상소 ···········································································389

예제 74 일부상소와 불이익변경금지의 원칙 ······························································395

예제 75 상소의 제문제 ·······························································································399

예제 76 소촉법상 재심 ·······························································································406

예제 77 재심관련 사례 ································································································411

예제 78 비상상고 사례 ································································································416