2017 법원사무관 승진시험 대비 형사소송법 사례연습

제1편 총 론
사례001. 제6조에 따른 토지관할 병합심리 신청사건의 관할법원 ············································3
사례002. 항소심에서의 사물관할의 변경과 관할법원의 문제 ····················································5
사례003. 약식명령과 제척사유, 약식명령과 불이익변경금지원칙 ··············································9
사례004. 법원의 증거결정과 기피사유 해당여부 및 불복방법 ················································12
사례005. 성명모용소송 ··············································································································15
< 유제1:성명모용소송 ·················································································································20
사례006. 위장출석 ·····················································································································21
사례007. 국선변호인이 법정기간 내에 피고인의 귀책사유 없이 항소이유서를 제출하지
않은 경우, 항소심 법원의 조치 ···············································································23
사례008. 구속피의자의 피의자신문을 위한 구인 허부 ····························································25
사례009. 변호인의 피의자신문 참여권의 침해와 불복방법, 진술거부권을 고지하였지만
제244조의3 제2항에 위반하여 작성한 피신조서의 증거능력 ·································27
사례010. 법원의 증거개시결정에 대한 불복의 허부 ································································30
사례011. 착오에 의한 소송행위의 무효원인 여부 ···································································32
사례012. 변호인선임의 추완 허부 ····························································································34
사례013. 소송조건 흠결의 경합과 법원의 조치 ·······································································36
제2편 수 사
사례014. 함정수사 ·····················································································································41
< 유제2:함정수사 ·······················································································································46
< 유제3:함정수사 ·······················································································································47
사례015. 고소 전 수사, 고소의 추완, 고소의 포기 ································································48
사례016. 친족상도례와 고소취소의 소송법적 효과 ··································································52
< 유제4:친족상도례와 고소의 주관적 불가분 원칙 ·······································································53
사례017. 전속고발사건과 고소의 주관적 불가분원칙의 유추적용 여부 ··································54
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사례018. 공범에 대한 제1심판결 선고 후 고소취소의 허부 ··················································56
사례019. 반의사불벌죄와 고소의 주관적불가분 원칙의 준용여부 및 공범에 대한
제1심판결 선고 후 고소취소의 허부 ·······································································58
< 유제5:반의사불벌죄와 고소의 주관적 불가분원칙의 준용여부 ·····················································61
< 유제6:반의사불벌죄와 고소의 주관적 불가분원칙의 준용여부 ·····················································62
사례020. 긴급체포의 적법성 ·····································································································63
< 유제7:긴급체포의 요건 및 그 판단기준 ····················································································65
사례021. 현행범체포시 체포의 필요성 요부 ············································································66
사례022. 보증금납입조건부 피의자석방결정에 대한 검사의 항고 허부 ··································68
사례023. 압수·수색집행절차의 적법성 등 ················································································70
사례024. 압수수색영장 유효기간의 성질 등 ············································································76
사례025. 압수·수색에 있어서 영장주의의 예외 ·······································································79
사례026. 체포현장에서의 영장 없는 압수, 별건압수 등(1) ····················································84
사례027. 체포현장에서의 영장 없는 압수, 별건압수 등(2) ····················································88
사례028. 긴급체포시 영장 없는 압수(1) ··················································································93
사례029. 긴급체포시 영장 없는 압수(2) ··················································································96
사례030. 임의제출물의 압수 ·····································································································98
사례031. 강제채혈 등(1) ········································································································101
사례032. 압수물 환부청구권의 포기 등 ·················································································105
사례033. 증거보전, 증인신문의 청구 ·····················································································108
< 유제8:수사상 증거보전(검사의 판사에 대한 증인신문청구, 증거보전) ·······································111
사례034. 공소제기 후의 수사 ·································································································112
< 유제9:공소제기 후의 수사 ·····································································································117
< 유제10:공소제기 후의 수사 ···································································································118
제3편 공소제기
사례035. 재정신청에 대한 공소제기결정의 하자 ···································································121
사례036. 공소사실의 불특정과 법원의 조치 ··········································································127
< 유제11:공소사실의 불특정 ·····································································································130
사례037. 예비적·택일적 기재 ·································································································131
사례038. 친고죄의 일죄의 일부에 대한 공소제기 ·································································136
viii
사례039. 공소시효와 공소장변경 ····························································································140
사례040. 공소시효와 공범(대향범 관계에 있는 자)의 시효의 정지여부 ······························143
사례041. 공범과 시효의 정지 ·································································································146
제4편 공 판
사례042. 포괄일죄에 대한 추가기소시 검사와 법원의 조치 ·················································151
< 유제12:포괄일죄의 추가기소에 대한 법원의 조치 ···································································154
< 유제13:상상적 경합에 대한 추가기소시 검사와 법원의 조치 ···················································155
사례043. 공소사실의 동일성(공소장변경의 한계와 기판력의 객관적 범위) ··························156
사례044. 공소장변경의 필요성 ·······························································································159
< 유제14:일부기소의 적법성, 공소장변경의 필요성 ····································································162
사례045. 단독범을 공동정범으로 인정하는 경우 공소장변경의 필요성 ·······························163
사례046. 법원의 공소장변경요구 ····························································································165
사례047. 공소장변경의 필요성(축소사실의 인정과 판결편의주의), 항소심에서의
고소취소의 허부 ·····································································································168
사례048. 소송관계인의 출석 ···································································································172
사례049. 약식명령에 대한 정식재판절차에서의 피고인 2회 불출석과 증거동의의 의제 ········178
사례050. 공판전 준비절차 ······································································································181
사례051. 법원의 증거결정에 대한 불복방법 ··········································································183
사례052. 공동피고인의 증인적격(1) ·······················································································186
< 유제15:공동피고인의 증인적격 ······························································································188
사례053. 공동피고인의 증인적격(2), 공범인 공동피고인의 증언거부권 ·······························189
사례054. 공동피고인의 증인적격, 공동피고인의 법정진술의 증거능력 ································191
사례055. 유죄판결이 확정된 공범의 증언거부권 유무와 위증죄 성부 ·································194
< 유제16:유죄판결이 확정된 공범의 증언거부권 유무 ································································197
제5편 증 거
사례056. 엄격한 증명과 자유로운 증명, 자백의 임의성에 대한 증명 ·································201
< 유제17:자백의 임의성에 대한 증명의 방법(증명의 정도) ·························································206
사례057. 위법수집증거배제법칙 ······························································································207
사례058. 사인이 위법하게 수집(절취)한 증거의 증거능력 ····················································211
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사례059. 사인이 위법하게 수집한 증거, 현장사진의 증거능력 ············································213
사례060. 독수과실과 그 예외(1) ····························································································215
사례061. 독수과실과 그 예외(2) ····························································································218
사례062. 압수요건으로 ‘관련성’ 위반 및 독수과실의 예외(3) ·············································221
사례063. 독수과실의 예외(4), 강제채뇨, 강제채혈, 관련성 ·················································223
사례064. 임의동행의 적법성 요건과 위법수집증거배제법칙의 주장적격 ······························230
사례065. 전문증거와 본래증거의 구별 ···················································································233
< 유제18:전문증거와 본래증거의 구별 ······················································································235
사례066. 다른 사건(공범)의 공판조서 ····················································································236
사례067. 검사작성 공범에 대한 피의자신문조서의 증거능력 ···············································240
< 유제19:검사작성 공범에 대한 피신조서의 증거능력, 제314조 적용여부 ···································244
사례068. 사경작성 공범에 대한 피의자신문조서, 제314조 적용여부 ··································245
< 유제20:사경작성 피신조서 및 공범에 대한 피신조서 등의 증거능력 ········································248
< 유제21:사경 및 검사 작성 공범에 대한 피의자신문조서의 증거능력 ········································249
사례069. 진술서(수사과정 진술서, 통상의 진술서), 제313조 제1항 단서의 ‘피고인의
진술을 기재한 서류’의 증거능력 ············································································250
사례070. 수사기록하지 않은 수사과정 진술서의 증거능력 ···················································254
사례071. 검증조서의 증거능력 ·······························································································256
사례072. 실황조사서의 증거능력 ····························································································260
< 유제22:실황조사서 ················································································································264
사례073. 수사보고서의 증거능력 ····························································································265
사례074. 증언거부권의 행사가 제314조의 ‘그 밖에 이에 준하는 사유’에 해당여부 ·············268
< 유제23:증언거부권의 행사가 제314조의 ‘그 밖에 이에 준하는 사유’에 해당여부 ·····················271
사례075. 제316조 제2항의 ‘피고인 아닌 타인’의 의미(1) ··················································272
사례076. 제316조 제2항의 ‘피고인 아닌 타인’의 의미(2) ··················································275
사례077. 조사자증언의 증거능력 ····························································································277
사례078. 재전문증거의 증거능력(1) ·······················································································280
사례079. 재전문증거의 증거능력(2) ·······················································································282
< 유제24:재전문증거의 증거능력 ······························································································285
< 유제25:재전문증거의 증거능력 ······························································································286
사례080. CCTV(현장사진)의 증거능력(1) ··············································································287
x
사례081. 현장사진의 증거능력(2) ··························································································290
< 유제26:현장사진의 증거능력 ··································································································292
사례082. 녹음테이프(진술녹음)의 증거능력 ···········································································293
사례083. 피해자가 피고인과의 대화내용을 비밀녹음한 녹음테이프(진술녹음)의 증거능력 ······296
사례084. 현장녹음의 증거능력 ·······························································································300
사례085. 증거동의의 의제와 증거동의의 취소·철회의 허용시기 ··········································302
사례086. 탄핵증거의 허용범위 ·······························································································305
< 유제27:탄핵증거의 허용범위 ··································································································307
사례087. 내용을 부인한 사경작성 피의자신문조서의 탄핵증거 허부 ···································308
사례088. 수사기관 영상녹화물의 증거능력 ············································································310
사례089. 공범자의 자백과 보강증거 요부 ·············································································313
< 유제28:공범자의 자백 ···········································································································315
사례090. 자백의 보강법칙 ······································································································316
< 유제29:공동피고인(공범인 경우, 공범 아닌 경우) 자백의 증거능력 ··········································321
< 유제30:보강증거의 자격(성질) ·······························································································322
제6편 재판, 상소, 비상구제절차
사례091. 포괄일죄(상습범)의 일부 확정판결의 기판력 ·························································325
사례092. 약식명령에 대한 피고인의 정식재판청구사건의 공판절차에서 불이익변경
금지원칙과 공소장변경의 허부 ···············································································327
사례093. 포괄일죄의 일부상소 ·······························································································330
< 유제31:포괄일죄의 일부상소 ··································································································332
< 유제32:상상적 경합범의 일부상소 ··························································································333
사례094. 경합범의 일부상소와 상소심의 파기범위(1) ···························································334
사례095. 경합범에 대한 일부상소시 일죄로 판명된 경우 ····················································336
< 유제 33:경합범에 대한 일부상소시 일죄로 판명된 경우 ·························································337
사례096. 약식명령에 대한 정식재판청구사건에서의 공시송달 ··············································338
사례097. 공시송달의 하자와 상소권회복청구 등 ···································································340
사례098. 준항고 ······················································································································345
사례099. 특별사면과 재심사유 ·······························································································347
사례100. 재심(증거의 신규성·명백성), 재심법원 심판범위 ···················································350
xi
사례101. 증거의 신규성 - 위장자수자에 대한 구제방법 등 ················································355
사례102. 공범자(공동피고인)의 소송관계 ···············································································357