고등고시

형사소송법의 선택형이 어려운 것은 조문들이다. 조문만 정리할 수는 없고 판례 또한 정리하여야 한다. 이러한 점을 감안하여 조문과 판례를 정지문 형태로 가다듬어 체계적으로 정리하였다. 또한, 변호사시험의 기출뿐 아니라 5급공채, 법원행시 등 고등고시 기출문제와 최신판례를 철저히 분석하여, 판례가 제시한 사실관계를 바탕으로 쟁점들을 정리하고 암기할 수 있도록 하였다.

1. 머리말

최근 변호사시험에서는 사례형뿐 아니라 선택형의 난이도가 급상승하였다. 현재, 기타 국가직시

험에서도 선택형과목의 난이도는 급상승하고 있다. 대한민국 최고의 시험인 변호사시험이 다른

국가공무원시험보다 쉽게 출제되기는 어렵다. 이러한 점을 감안하면 선택형 난이도의 상승은 단

순히 1회적으로 그치는 것이 아니라, 향후 변호사시험의 추세로 자리잡을 것으로 예상된다.

필자는 변화된 수험현실일 고려하여, 기존과 동일한 암기장이라는 명칭을 사용하고 있지만 선택

형 핵심정리를 대폭 강화한 완전히 다른 교재를 집필할 수밖에 없었다.

변호사시험은 선택형, 사례형, 기록형으로 구성되어 있다. 현행 제도 하에서 충분한 시간을 두

고 기본서와 사례집을 독파한다는 것은 모순되게도 수험적합적이지 않다. 사실 형사법 1과목이

라고 하지만, 형법과 형사소송법은 엄연히 다른 과목이고, 선택형과 사례형, 기록형 역시 서로

다른 과목이나 마찬가지이다. 로스쿨 3년이라는 시간이 있지만, 결국 1년도 안되는 기간에 모든

과목의 선택형, 사례형, 기록형을 정리하고 시험을 치러야 한다. 결국 모든 과목을 얼마만큼 효

율적으로 정리하고 빠른 시간에 회독하느냐가 수험의 성패를 가르게 된다.

본서는 이러한 변호사시험의 최종마무리에 최적화된 교재임을 자부한다.

2. 본서의 특징

⑴ 법조문과 판례를 정지문 형태로 철저히 비교정리

형사소송법의 선택형이 어려운 것은 조문들이다. 조문만 정리할 수는 없고 판례 또한 정리하여

야 한다. 이러한 점을 감안하여 조문과 판례를 정지문 형태로 가다듬어 체계적으로 정리하였다.

⑵ 최신판례와 기출문제를 철저히 정리한 사례암기장 (통합사례집으로서 기능)

변호사시험 수험생들은 이미 출제된 기출문제를 중심으로 사례형을 학습하다보니, 새로운 판례

나 다른 고등고시에서는 출제되었지만 변호사시험에서는 아직 출제되지 않은 논점 등에 대해서

는 제대로된 학습을 못한 채 시험을 치르곤 한다. 본서는 이러한 점을 감안하여, 변호사시험의

기출뿐 아니라 5급공채, 법원행시 등 고등고시 기출문제와 최신판례를 철저히 분석하여, 판례가

제시한 사실관계를 바탕으로 쟁점들을 정리하고 암기할 수 있도록 하였다.

이러한 측면에서 본서는 최신판례집과 통합 사례집의 기능도 갖추고 있다.

⑶ 최신판례를 철저히 반영

본서는 2025.3.15. 현재의 최신판례와 개정법을 철저히 반영하고 중요판례는 사례화 함으로써

최신판례와 사례를 입체적으로 정리할 수 있도록 하였다.

⑷ 공판, 상소, 불복체계론 등의 정리 및 사례화

최근 주관식 출제빈도가 높은 공판, 상소, 소송행위편의 사례를 추가하였고, 불복체계론에 관한

문제, 압수·수색의 허용범위(관련성) 등에 관한 사례를 추가하여 최신논점 대비에 부족함이 없

도록 하였다.

3. 맺으며

금번 개정판은 어려워지는 변호사시험을 대비하기 위한 필자의 야심작이기도 하다. 본서의 학습을

통해 독자들이 수험기간을 단축하고 정확하고 신속하게 선택형과 사례형 문제를 독파하는 역량을

키움으로써 합격의 기틀을 마련하기를 고대해 본다.

본서의 출간에 이르는 전과정을 함께 해준 김백선실장, 홍민교팀장, 이종배선생님, 최의식차장과

본서의 표지를 디자인해준 노채선님, 필자를 다시 변호사시험강의로 이끌어진 정문순 수석과 박흥

수과장에게 감사의 말을 전하며 본서의 서문을 마무리하기로 한다.

2025.3.21.

필자 정주형 

제 1. 형사소송법 서론 ····································································································9

제 2. 당사자능력과 피고인 ··························································································10

제 3. 진술거부권과 무죄추정권 ··················································································20

제 4. 검사 ························································································································22

제 5. 법원 ························································································································24

제 6. 변호인 ·····················································································································41

제 7. 소송행위론 ············································································································45

제 8. 수사기관 ················································································································53

제 9. 전문수사자문위원과 전문심리위원 ····································································56

제 10. 수사총론 ················································································································58

제 11. 고소·고발·자수 ································································································62

제 12. 임의수사의 한계 ··································································································75

제 13. 수사구조론 ············································································································98

제 14. 체포와 구속 ········································································································102

제 15. 접견교통권 ···········································································································118

제 16. 체포·구속의 효력을 다투는 제도 ·································································121

제 17. 압수·수색·검증 ······························································································126

제 18. 증거보전과 증인신문 ························································································167

제 19. 수사의 종결 ········································································································170

제 20. 재정신청 ···············································································································172

제 21. 공소권남용, 공소제기 후 수사, 공소취소 ····················································179

CONTENTS

5

제 22. 공소시효 ··············································································································188

제 23. 공소제기와 공소장특정 ····················································································193

제 24. 공소제기의 효력과 공소장변경 ······································································202

제 25. 공판기일전 절차 ································································································221

제 26. 공판기일의 절차 ································································································225

제 27. 증인신문 ··············································································································236

제 28. 공판절차의 특수문제 ························································································248

제 29. 국민참여재판 ······································································································250

제 30. 증거법 서설 ········································································································256

제 31. 위수증과 자백배제법칙 ····················································································258

제 32. 전문법칙 ··············································································································268

제 33. 전문법칙의 예외 ································································································270

제 34. 증거동의, 탄핵증거, 자백의 보강법칙 ·························································318

제 35. 재판 ······················································································································333

제 36. 상소 ······················································································································340

제 37. 불이익변경금지 원칙 ························································································347

제 38. 항소심과 상고심 ································································································350

제 39. 일반항고 ··············································································································367

제 40. 비상구제절차 ······································································································374

제 41. 특별소송절차 ······································································································391

제 42. 형의집행 및 배상명령 ······················································································397