2019 형사소송법요론-3월12일 출간예정
저자 : 신호진
출판사 : 문형사
출판일 : 2019-02-28
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판형 : 2019년판
도서상태 : 정상
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    2019년판 형사소송법요론에 대해서

     

    형사소송법요론이 형사소송법의 기본교재로서 지향하는 점은 두 가지이다.

     

    첫째, 출제가능한 형사소송법의 기본이론을 빠짐없이 정리, 소개함으로써 이론기본서로서의 역할을 충실하게 수행해야 한다는 점이고, 둘째, 출제가능한 형사소송법 판례를 형사소송법의 이론적 체계에 맞추어 정리함으로써 판례기본서로서의 역할도 수행해야 한다는 점이다.

    이러한 전제에서 2019년판 “형사소송법요론”을 만들면서 주력한 점은 다음과 같다.

     

    ⑴ 2018년 12월 판례공보까지 반영하여 최신의 대법원 판례를 보충하였다.

     

    ⑵ 형사소송법 제216조 제1항 제1호에서 체포 목적의 피의자 수색의 요건으로 필요성 이외에 긴급성 요건을 추가한 憲決 2018.4.26, 2015헌바370,2016헌가7, ‘패킷 감청’ 방식에 의한 인터넷회신 감청을 허용하는 통신비밀보호법 제5조 제2항이 과잉금지원칙에 위반된다는 憲決2018.8.30, 2016헌마263, 즉시항고 제기기간을 3일로 제한하고 있는 형사소송법 제405조가 피고인의 재판청구권을 침해한다는 憲決 2018.12.27, 2015헌바77,2015헌마832를 반영하였다.

     

    ⑶ 개정된 소년법 제67조와 형사보상과 명예회복에 관한 법률 제5조, 제14조, 제21조의2를 반영하였다.

     

    2019년판 형사소송법요론이 독자 여러분의 꿈의 실현에 조금이나마 도움이 되기를 진심으로 기원한다.

    2019년 1월 23일

    법학박사 신 호 진

     

    형사소송법요론에 대해서


    편저자가 오래 전부터 형법강의를 해오면서 사용했던 강의안을 다듬고 보완해서 출간한 것이 “형법요론”이라는 교재였는데, 이 형법요론은 15년 이상 사법시험을 비롯한 국가고시를 준비하는 독자들로부터 많은 사랑을 받아왔다. 이에 더하여 편저자는 형법요론에 익숙한 많은 독자들로부터 형사소송법요론의 출간에 대한 요구를 받아왔는데,이에 부응하기 위해서 수년 전부터 준비를 한 결과 드디어 “형사소송법요론”을 독자 여러분 앞에 내어놓게 되었다.

     

    형법요론과 동일하지만, 본 형사소송법요론이 형사소송법의 기본교재로서 지향하는 점은 두 가지이다. 첫째, 출제가능한 형사소송법의 기본이론을 빠짐없이 정리, 소개함으로써 이론기본서로서의 역할을 충실하게 수행해야 한다는 점이고, 둘째, 출제가능한 형사소송법 판례를 형사소송법의 이론적 체계에 맞추어 정리함으로써 판례기본서로서의 역할도 수행해야 한다는 점이다. 이런 전제에서 “형사소송법요론”을 만들면서 주력한 점은 다음과 같다.

     

    첫째, 현재 국내에 출간된 형사소송법 교과서들을 최신간까지 모두 참고하여 중요한 쟁점과 그와 관련된 학설들을 빠짐 없이 정리하는데 주력하였다. 이와 같은 학설의 단권화는 주관식 논술형 시험 답안의 내용을 풍성하게 하여 고득점을 하는데 많은 도움을 줄 것이다.

     

    둘째, 중요한 판례들을 체계적으로 정리하는데 주력하였다. 특히 2007년 형사소송법의 대폭적인 개정 이후의 판례들은 모두 반영하여 판례문제의 출제에도 만전을 기할 수 있도록 하였다.

     

    셋째, 서술체계는 형사절차의 진행 순서와 관련성이 큰 순서대로 서술하는 것을 원칙으로 하였다. 법원 등 소송주체에 대한 서술을 수사절차 다음의 공판절차 앞에서 한 것과 구속도 수사기관에 의한 피의자구속과 법원에 의한 피고인구속을 나누어서 서술한 것이 그 예이다.

     

    넷째, 선택형 또는 객관식 문제에 효율적으로 대비하기 위하여 최근 3년간 여러 국가고시에 출제된 문제들을 분석하여 중요도를 3단계로 나누어 표시하였다( ★ , ★★ , ★★★ ).

    이는 최종정리시에 중요부분을 정리하는데 큰 도움을 줄 것이다.

     

    수년간에 걸쳐서 준비해 온 형사소송법요론을 이제 출간하게 되니 오래 전에 받은 숙제가 끝난 것 같은 기분이다. 그리고 탁월한 실력으로 본서의 완성도를 높이는 데 기여를 한 문형사의 임진복 실장과 강은수 팀장에게 큰 감사를 드리고, 아무쪼록 본서를 효율적으로 활용하여 독자 여러분의 큰 꿈이 조속히 이루어지기를 진심으로 기원한다.

    2014년 3월 27일 신 호 진

     

    [목   차]

     

    제1편 형사소송법의 일반이론

    제1장 형사소송법의 기본개념

    제1절 형사소송법의 의의와 성격 ············································································· 3

    [1] 형사소송법의 의의/ 3 [2] 형사소송법의 성격/ 4

    제2절 형사소송법의 법원과 적용범위 ······································································· 5

    [1] 형사소송법의 법원/ 5 [2] 형사소송법의 적용범위/ 7

    제3절 형사소송법의 발전 ······················································································ 11

    [1] 서구 형사소송법의 발전/ 11 [2] 우리 형사소송법의 발전/ 12

    제2장 형사소송의 이념과 본질

    제1절 형사소송의 이념 ························································································· 13

    [1] 형사소송의 이념과 상호관계/ 13 [2] 실체적 진실주의/ 13

    [3] 적정절차의 원칙/ 16 [4] 신속한 재판의 원칙/ 19

    제2절 형사소송의 기본구조 ··················································································· 24

    [1] 형사소송구조론의 의의/ 24 [2] 규문주의와 탄핵주의/ 24

    [3] 직권주의와 당사자주의/ 25

    제3절 형사소송절차의 본질 ··················································································· 29

    [1] 형사소송절차의 의의와 본질/ 29 [2] 형사소송의 실체면과 절차면/ 30

    제2편 수사와 공소

    제1장 수 사

    제1절 수사의 기본개념 ························································································· 35

    [1] 수사의 의의와 수사기관/ 35 [2] 수사의 구조와 피의자의 지위/ 39

    [3] 수사의 조건/ 42

    제2절 수사의 개시 ······························································································· 49

    [1] 수사의 단서/ 49 [2] 불심검문/ 49

    [3] 고 소/ 58 [4] 기타의 수사단서/ 75

    제3절 수사의 방법 ······························································································· 81

    [1] 총 설/ 81 [2] 임의수사/ 89 [3] 강제수사/ 98

    제4절 대인적 강제수사 ······················································································· 102

    [1] 피의자의 체포/ 102 [2] 피의자 구속/ 117

    [3] 피의자·피고인의 접견교통권/ 132 [4] 체포·구속된 피의자의 석방제도/ 138

    제5절 대물적 강제수사 ······················································································· 149

    [1] 수사상의 압수·수색/ 149 [2] 수사상의 검증/ 168

    [3] 압수·수색·검증과 영장주의의 예외/ 177

    [4] 수사상의 감정/ 187 [5] 기술적 수단에 의한 수사/ 191

    제6절 수사상의 증거보전 ···················································································· 203

    [1] 증거보전/ 203 [2] 참고인에 대한 증인신문/ 207

    제7절 수사의 종결 ····························································································· 212

    [1] 수사종결의 의의와 종류/ 212 [2] 불기소처분에 대한 불복방법/ 216

    [3] 공소제기 후의 수사/ 219

    제2장 공소의 제기

    제1절 공소와 공소권이론 ···················································································· 225

    [1] 공소의 의의/ 225 [2] 공소권이론/ 225 [3] 공소권남용론/ 227

    제2절 공소제기의 기본원칙 ················································································· 235

    [1] 국가소추주의/ 235 [2] 기소독점주의/ 235

    [3] 기소편의주의/ 237 [4] 공소의 취소/ 242

    [5] 재정신청과 기소강제절차/ 246

    제3절 공소제기의 방식 ······················································································· 255

    [1] 서면주의/ 255 [2] 공소장의 기재사항/ 257 [3] 공소장일본주의/ 269

    제4절 공소제기의 효과 ······················································································· 276

    [1] 소송계속/ 276 [2] 심판범위의 한정/ 277 [3] 공소시효의 정지/ 282

    제5절 공소시효 ·································································································· 283

    [1] 공소시효의 의의와 본질/ 283 [2] 공소시효의 기간/ 286

    [3] 공소시효의 정지/ 292 [4] 공소시효의 완성/ 296

    제3편 공 판

    제1장 소송주체

    제1절 법 원 ······································································································ 300

    [1] 법원의 의의와 종류/ 300 [2] 법원의 관할/ 302 [3] 제척·기피·회피/ 317

    제2절 검 사 ······································································································ 328

    [1] 검사와 검찰청/ 328 [2] 검사의 조직과 구조/ 330 [3] 검사의 소송법상 지위/ 333

    제3절 피고인 ····································································································· 337

    [1] 피고인의 의의와 특정/ 337 [2] 피고인의 당사자능력과 소송능력/ 342

    [3] 피고인의 소송법상 지위/ 346 [4] 무죄추정의 원칙/ 350

    [5] 피고인의 진술거부권/ 356

    제4절 변호인 ····································································································· 366

    [1] 변호인제도의 의의/ 366 [2] 변호인의 선임·선정/ 367

    [3] 변호인의 지위와 권한/ 379 [4] 보조인/ 389

    제2장 소송행위와 소송조건

    제1절 소송행위 ·································································································· 390

    [1] 소송행위의 의의와 종류/ 390 [2] 소송행위의 일반적 요소/ 393

    [3] 소송행위에 대한 가치판단/ 399 [4] 소송서류/ 410

    제2절 소송조건 ·································································································· 422

    [1] 소송조건의 의의와 종류/ 422 [2] 소송조건의 조사와 흠결/ 423

    [3] 소송조건의 추완/ 426

    제3장 공판절차

    제1절 공판절차의 기본원칙 ················································································· 427

    [1] 공판절차의 의의/ 427 [2] 공판절차의 기본원칙/ 427

    제2절 공판심리의 범위 ······················································································· 433

    [1] 심판의 대상/ 433 [2] 공소장변경/ 437

    제3절 공판준비절차 ···························································································· 465

    [1] 공판준비절차의 의의/ 465 [2] 광의의 공판준비절차/ 466

    [3] 협의의 공판준비절차/ 474

    제4절 공판정에서의 심리 ···················································································· 479

    [1] 공판정의 구성과 법원의 권한/ 479 [2] 공판기일의 절차/ 488

    [3] 공판절차이분론/ 494

    제5절 증거조사와 강제처분 ················································································· 497

    [1] 법원의 증거조사/ 497 [2] 법원의 강제처분/ 532

    제6절 공판절차의 특칙 ······················································································· 554

    [1] 간이공판절차/ 554 [2] 공판절차의 정지와 갱신/ 560

    [3] 변론의 병합·분리·재개/ 565 [4] 국민참여재판/ 567

    제4장 증 거

    제1절 증거법의 기본개념 ···················································································· 580

    [1] 증거의 의의와 종류/ 580 [2] 증거능력과 증명력/ 583

    제2절 증명의 기본원칙 ······················································································· 585

    [1] 증거재판주의/ 585 [2] 거증책임/ 595 [3] 자유심증주의/ 602

    제3절 위법수집증거배제법칙 ················································································ 613

    [1] 위법수집증거배제법칙의 의의 및 연혁/ 613

    [2] 위법수집증거배제법칙의 적용범위/ 615

    [3] 위법수집증거배제법칙의 적용효과/ 628

    제4절 자백배제법칙 ···························································································· 630

    [1] 자백의 의의와 효과/ 630 [2] 자백배제법칙/ 633

    제5절 전문법칙 ·································································································· 644

    [1] 전문증거와 전문법칙/ 644 [2] 전문법칙의 예외/ 648 [3] 진술의 임의성/ 714

    제6절 당사자의 동의와 증거능력 ·········································································· 719

    [1] 증거동의의 의의와 성질/ 719 [2] 증거동의의 방법/ 721

    [3] 증거동의의 의제/ 726 [4] 증거동의의 효과/ 728

    [5] 증거동의의 철회 및 취소/ 731

    제7절 탄핵증거 ·································································································· 733

    [1] 탄핵증거의 의의와 성격/ 733 [2] 탄핵증거의 허용범위 및 자격/ 734

    [3] 탄핵의 대상과 범위/ 737 [4] 탄핵증거의 제출과 조사방법/ 739

    제8절 자백보강법칙 ···························································································· 741

    [1] 자백보강법칙의 의의와 필요성/ 741 [2] 자백보강법칙의 적용범위/ 742

    [3] 보강증거의 자격/ 746 [4] 보강증거의 범위/ 750

    [5] 자백보강법칙 위반의 효과/ 754

    제9절 공판조서의 증명력 ···················································································· 755

    [1] 공판조서의 배타적 증명력/ 755 [2] 배타적 증명력이 인정되는 범위/ 756

    [3] 배타적 증명력 있는 공판조서/ 759

    제5장 재 판

    제1절 재판의 기본개념 ······················································································· 761

    [1] 재판의 의의와 종류/ 761 [2] 재판의 성립 및 방식/ 763

    제2절 종국재판 ·································································································· 768

    [1] 유죄판결/ 768 [2] 무죄판결/ 779 [3] 관할위반의 판결/ 782

    [4] 공소기각의 재판/ 783 [5] 면소판결/ 790 [6] 종국재판의 부수효과와 부수처분/ 798

    제3절 재판의 확정과 효력 ··················································································· 800

    [1] 재판의 확정/ 800 [2] 재판의 확정력/ 801 [3] 기판력/ 804

    제4절 소송비용 ·································································································· 815

    [1] 소송비용의 의의/ 815 [2] 소송비용의 부담자/ 816

    [3] 소송비용부담의 절차/ 817 [4] 무죄판결에 대한 비용보상/ 819

    제4편 상소·비상구제절차·특별형사절차

    제1장 상 소

    제1절 상소의 일반이론 ······················································································· 823

    [1] 상소의 의의와 종류/ 823 [2] 상소권/ 824 [3] 상소의 이익/ 829

    [4] 상소의 제기와 포기·취하/ 836 [5] 일부상소/ 841

    [6] 불이익변경금지의 원칙/ 849 [7] 파기판결의 구속력/ 861

    제2절 항 소 ······································································································ 866

    [1] 항소의 의의와 항소심의 구조/ 866 [2] 항소이유/ 870

    [3] 항소심의 절차/ 874

    제3절 상 고 ······································································································ 893

    [1] 상고의 의의와 상고심의 구조/ 893 [2] 상고이유/ 894

    [3] 상고심의 절차/ 898 [4] 비약적 상고/ 905 [5] 상고심판결의 정정/ 906

    제4절 항 고 ······································································································ 908

    [1] 항고의 의의와 종류/ 908 [2] 항고심의 절차/ 910 [3] 준항고/ 912

    제2장 비상구제절차

    제1절 재 심 ······································································································ 917

    [1] 재심의 의의와 구조/ 917 [2] 재심이유/ 920

    [3] 재심개시절차/ 931 [4] 재심심판절차/ 938

    제2절 비상상고 ·································································································· 942

    [1] 비상상고의 의의/ 942 [2] 비상상고의 대상/ 943

    [3] 비상상고의 이유/ 944 [4] 비상상고의 절차/ 948

    제3장 특별형사절차

    제1절 약식절차 ·································································································· 951

    [1] 약식절차의 의의/ 951 [2] 약식명령의 청구/ 952

    [3] 약식절차의 심판/ 953 [4] 정식재판의 청구와 재판/ 956

    제2절 즉결심판절차 ···························································································· 961

    [1] 즉결심판절차의 의의와 성격/ 961 [2] 즉결심판의 청구/ 962

    [3] 즉결심판청구사건의 심판/ 963 [4] 정식재판의 청구와 재판/ 967

    제3절 소년에 대한 특별절차 ················································································ 969

    [1] 서 설/ 969 [2] 소년보호절차/ 969 [3] 소년형사절차/ 972

    제4절 피해자 보호절차 ······················································································· 976

    [1] 형사조정절차/ 976 [2] 배상명령절차/ 977

    [3] 화해절차/ 983 [4] 국가에 의한 범죄피해자구조제도/ 984

    제4장 재판의 집행과 형사보상 및 명예회복

    제1절 재판의 집행 ····························································································· 988

    [1] 재판집행의 일반원칙/ 988 [2] 형의 집행/ 991

    [3] 재판집행에 대한 구제절차/ 996

    제2절 형사보상과 명예회복 ················································································· 999

    [1] 형사보상제도/ 999 [2] 명예회복제도/ 1006

    [판례색인] ······································································································ 1009

    [사항색인] ······································································································ 1019

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