제1편 수사와 공소



Chapter 1 수 사



제1절 수사의 의의와 구조·············· 10

Ⅰ 수사의 의의 ·············································· 10

Ⅱ 수사의 구조 ·············································· 10

Ⅲ 수사의 조건 ·············································· 11



제2절 수사기관과 피의자··············· 15

Ⅰ 수사기관 ···················································· 15

Ⅱ 피의자 ······················································· 22



제3절 수사의 개시···················· 24

Ⅰ 수사의 단서 ·············································· 24

Ⅱ 불심검문 (경찰관직무집행법 제3조) ········ 25

Ⅲ 변사자 검시 ·············································· 29

Ⅳ 고 소 ························································· 30

Ⅴ 고 발 ························································· 41

Ⅵ 자 수 ························································· 44



제4절 임의수사······················· 46

Ⅰ 임의수사와 강제수사 ································ 46

Ⅱ 임의수사의 방법 ······································· 48

Ⅲ 임의수사의 적법성 ···································· 57

Ⅳ 임의수사와 강제수사의 한계영역 ············· 59



Chapter 2 강제처분과 강제수사



제1절 서 설························ 69

Ⅰ 강제처분의 의의 ······································· 69

Ⅱ 강제처분의 종류 ······································· 69

Ⅲ 강제처분과 인권보장제도 ······················· 70



제2절 피의자 체포···················· 71

Ⅰ 체포영장에 의한 체포 (통상체포) ············ 71

Ⅱ 긴급체포 ···················································· 78

Ⅲ 현행범인의 체포 ······································· 83



제3절 피의자와 피고인의 구속··········· 87

Ⅰ 구속의 의의와 유형 ·································· 87

Ⅱ 구속의 요건 ·············································· 88

Ⅲ 구속의 절차 [피의자 구속] ······················ 88

Ⅳ 구속기간의 제한 ······································· 94

Ⅴ 구속영장의 효력 ······································· 96

Ⅵ 접견교통권 ·············································· 104

Ⅶ 체포·구속 적부심사제도 ······················· 110

Ⅷ 보 석 ······················································· 118

Ⅸ 구속의 집행정지 ····································· 128

Ⅹ 구속의 실효 ············································ 130



제4절 압수·수색·검증················· 134

Ⅰ 압수·수색 ·············································· 134

Ⅱ 수사상 검증 ············································ 155

Ⅲ 수사상 감정 ············································ 160



제5절 수사상의 증거보전·············· 163

Ⅰ 증거보전 ·················································· 163

Ⅱ 증인신문의 청구 ····································· 166



Chapter 3 수사의 종결



제1절 검사의 수사종결················ 169

Ⅰ 수사종결의 의의와 종류 ························· 169

Ⅱ 수사종결처분의 통지 ······························ 171



제2절 불기소처분에 대한 불복·········· 176

Ⅰ 검찰항고 ·················································· 176

Ⅱ 재정신청 (제260조) ································ 177

Ⅲ 헌법소원 ················································ 178



제3절 공소제기 후의 수사············· 181

Ⅰ 의의 ························································· 181

Ⅱ 공소제기 후의 강제수사 ······················· 181

Ⅲ 공소제기 후의 임의수사 ························· 182



Chapter 4 공소제기



제1절 공소와 공소권이론·············· 183

Ⅰ 공소의 의의 ············································ 183

Ⅱ 공소권 및 공소권 이론 ·························· 183

Ⅲ 공소권 남용이론 ····································· 184



제2절 공소제기의 기본원칙············ 186

Ⅰ 공소제기의 기본원칙 ······························ 186

Ⅱ 공소의 취소 ············································ 189

Ⅲ 재정신청제도 ··········································· 192



제3절 공소제기의 방식················ 199

Ⅰ 공소장의 제출 및 공소장 기재사항 ······· 199

Ⅱ 필요적 기재사항 ····································· 201

Ⅲ 임의적 기재사항 ····································· 205

Ⅳ 공소장일본주의 ······································· 206



제4절 공소제기의 효과··············· 210

Ⅰ 소송계속 ·················································· 210

Ⅱ 심판범위의 한정 ····································· 210

Ⅲ 공소시효의 정지 ····································· 213



제5절 공소시효······················ 214

Ⅰ 의의 및 본질 ·········································· 214



Ⅱ 공소시효의 기간 ····································· 214

Ⅲ 공소시효의 정지 ····································· 217

Ⅳ 공소시효 완성의 효과 ···························· 218



제2편 공판과 증거 및 재판



Chapter 1 공판절차



제1절 공판절차의 기본원칙············ 224

Ⅰ 공판절차의 의의 ····································· 224

Ⅱ 공판절차의 기본원칙 ······························ 224



제2절 공판심리의 범위··············· 229

Ⅰ 심판의 대상 ············································ 229

Ⅱ 공소장 변경 ············································ 230



제3절 공판준비절차·················· 241

Ⅰ 공판준비절차의 의의 ······························ 241

Ⅱ 공판기일 전 절차 ··································· 241

Ⅲ 공판(전)준비절차 ···································· 244

Ⅳ 증거개시제도 ··········································· 247



제4절 공판정의 심리················· 256

Ⅰ 공판정의 구성 ········································· 256

Ⅱ 소송지휘권과 법정경찰권 ······················· 263



제5절 공판기일의 절차··············· 268

Ⅰ 모두절차 ·················································· 268

Ⅱ 사실심리절차 ··········································· 269

Ⅲ 판결선고절차 ··········································· 276



제6절 증인신문·감정·검증············· 283

Ⅰ 증인신문 ·················································· 283

Ⅱ 검 증 ······················································· 304

Ⅲ 감정·통역·번역 ··································· 308

Ⅳ 전문심리위원제도 ··································· 313



제7절 공판절차의 특수문제············ 317

Ⅰ 간이공판절차 ··········································· 317

Ⅱ 공판절차의 정지와 갱신 ························· 322

Ⅲ 변론의 병합·분리·재개 ······················· 325



Chapter 2 증 거



제1절 증거의 의의와 종류············· 328

Ⅰ 증거의 의의 ············································ 328

Ⅱ 증거의 종류 ············································ 328

Ⅲ 증거능력과 증명력 ·································· 330



제2절 증명의 기본원칙················ 331

Ⅰ 증거재판주의 ··········································· 331

Ⅱ 거증책임 ·················································· 336



제3절 위법수집증거배제법칙··········· 339

Ⅰ 서설 ························································· 339

Ⅱ 적용범위 ·················································· 340

Ⅲ 효과 ······················································· 340

Ⅳ 독수의 과실이론 ····································· 344



제4절 자백배제법칙·················· 346

Ⅰ 자백의 의의 ············································ 346

Ⅱ 자백배제법칙 ··········································· 346



제5절 전문법칙····················· 353

Ⅰ 전문증거와 전문법칙 ······························ 353

Ⅱ 전문법칙의 예외 ····································· 356



제6절 형사소송법상 전문법칙의 예외···· 358

Ⅰ 법원 또는 법관의 면전조서 ··················· 358

Ⅱ 피의자신문조서 ······································· 360

Ⅲ 진술조서 ·················································· 366

Ⅳ 진술서 ····················································· 369

Ⅴ 수사기관의 검증조서 ······························ 372

Ⅵ 실황조사서 ·············································· 374

Ⅶ 감정서 ····················································· 375

Ⅷ 제314조 ················································ 376

Ⅸ 당연히 증거능력이 있는 서류 ·············· 381

Ⅹ 전문진술 ·················································· 384

ⅩⅠ 재전문증거 ·············································· 386

ⅩⅡ 진술의 임의성 ········································· 387

XIII 전문법칙의 관련문제 ······························ 388



제7절 당사자의 동의와 증거능력········ 397

Ⅰ 동의의 의의와 성질 ································ 397

Ⅱ 동의의 방법 ············································ 398

Ⅲ 동의의 의제 ············································ 400

Ⅳ 동의의 효과 ············································ 401

Ⅴ 동의의 철회와 취소 ································ 402



제8절 탄핵증거····················· 403

Ⅰ 의의 및 성질 ·········································· 403

Ⅱ 허용범위와 자격 ····································· 404

Ⅲ 탄핵의 범위와 대상 ································ 405

Ⅳ 탄핵증거의 조사방법 ······························ 406



제9절 증명력 관련문제··············· 407

Ⅰ 자유심증주의 ··········································· 407

Ⅱ 자백의 보강법칙 ····································· 413

Ⅲ 공판조서의 증명력 ·································· 418



Chapter 3 재 판



제1절 재판의 기본개념················ 422

Ⅰ 재판의 의의와 종류 ································ 422

Ⅱ 재판의 성립과 방식 ································ 424



제2절 종국재판····················· 429

Ⅰ 유죄판결 ·················································· 429

Ⅱ 무죄판결 ·················································· 433

Ⅲ 관할위반의 판결 ····································· 435

Ⅳ 공소기각의 재판 ····································· 436

Ⅴ 면소판결 ·················································· 439

Ⅵ 종국재판의 부수효과 ······························ 441



제3절 재판의 확정과 효력············· 444

Ⅰ 재판의 확정 ············································ 444

Ⅱ 재판확정의 효력 ····································· 445

Ⅲ 기판력 ····················································· 446