2022 형사소송법 3년간 판례정리

…… 형 사 소 송 법 ……
[1] 수사의 방법 ···································································································· 3
1. 임의동행의 종류 (大判 2020도398) ····································································· 3
2. 피의자신문시 보호장비 사용 여부 및 변호인의 피의자신문 참여권 침해 여부 (大決 2015모2357) ········································································································ 4
[2] 대인적 강제수사 ······························································································ 6
3. 구속영장 발부 후 구속의 집행시기 (大判 2020도16438) ········································ 6
[3] 대물적 강제수사 ······························································································ 7
4. 압수와 사건과의 관련성 (大判 2021도3756) ························································· 7
5. 압수·수색과 사건과의 관련성 (大判 2019도14341) ················································ 8
6. 압수·수색영장의 제시방법 (大決 2019모3526) ···················································· 10
7. 압수·수색에의 참여권 (大判 2020도10729) ························································· 11
8. 전자정보에 대한 압수의 방법 (大決 2021모1586) ··············································· 13
9. 헌법불합치결정과 그에 따른 개정 형사소송법의 소급적용 여부 (大判 2018도13458) · 15
10. 임의제출된 정보저장매체에 대한 압수의 범위 (大判 2016도348, 전원합의체 판결) ····· 17
11. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2019도4938) ··········· 22
12. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2021도11170) ········· 24
[4] 수사의 종결 ·································································································· 29
13. 증인에 대한 검찰 진술조서의 증거능력 (大判 2013도6825) ································ 29
[5] 공소와 공소권이론 ························································································· 31
14. 공소권남용의 효과 (大判 2016도14772) ··························································· 31
[6] 공소제기의 방식 ···························································································· 32
15. 공소제기의 방식과 하자의 치유 (大判 2019도17150) ········································· 32
16. 공소제기의 방식 (大判 2019도16259) ······························································ 33
17. 공소사실이 부분적으로 특정되지 않은 경우 (大判 2019도10086) ························ 34
[7] 공소시효 ······································································································· 36
18. 공소시효의 기산점 (大判 2017도18693) ··························································· 36
19. 공직선거법 위반죄의 공소시효 기산일 (大判 2019도8815) ································· 37
[8] 변호인 ·········································································································· 38
20. ‘피고인이 심신장애의 의심이 있는 때’ 국선변호인의 선정 여부 (大判 2019도8531) ·························································································································· 38
21. 반의사불벌죄에서 변호인의 처벌불원의사표시의 대리 (大判 2019도10678) ··········· 40
[9] 소송행위 ······································································································· 42
22. 재판확정기록의 열람·등사와 정보공개법에 의한 공개청구의 관계 (大決 2021모3175) ·························································································································· 42
[10] 공판심리의 범위 ·························································································· 44
23. 공소사실의 동일성 (大判 2020도3593) ····························································· 44
24. 공소사실의 비양립관계 여부 (大判 2018도3688) ··············································· 45
25. 공소장변경의 필요성 (大判 2019도4608) ·························································· 46
26. 공소장변경허가신청서 부본을 송달하지 않은 경우 (大判 2019도7217) ················· 48
[11] 공판정에서의 심리 ······················································································· 50
27. 전문심리위원 참여절차의 적법성 (大判 2018도19051) ······································· 50
[12] 증거조사와 강제처분 ···················································································· 51
28. 증인의 불출석에 대한 법원의 조치 (大判 2020도2623) ······································ 51
29. 증인신문시 반대신문의 보장 (大判 2016도17054) ············································· 53
[13] 증명의 기본원칙 ·························································································· 55
30. 검사의 사전면담 후 증인의 증언의 신빙성 (大判 2020도15891) ·························· 55
31. 성폭행 피해자의 진술의 증명력 판단방법 등 (大判 2020도6965,2020전도74) ······· 58
[14] 위법수집증거배제법칙 ··················································································· 60
32. 위법수집증거와 증거배제의 기준 (大判 2018도20504) ······································· 60
33. 외국인에 대한 체포·구속시 영사통보권을 고지하지 않은 경우 (大判 2021도17103) ·· 63
[15] 전문법칙 ····································································································· 65
34. 본래증거와 전문증거의 구별기준 (大判 2018도14303, 전원합의체 판결) ·············· 65
35. 형사소송법 제312조 제3항의 적용범위 (大判 2016도9367) ································ 67
36. 압수조서에 기재된 ‘압수경위’의 증거능력 인정요건 (大判 2019도13290) ············· 69
37. 정당하지 않은 증언거부와 제314조의 적용여부 (大判 2018도13945, 전원합의체 판결) ·························································································································· 71
38. 공범에 대한 사법경찰관 작성 피의자신문조서 및 전문진술의 증거능력 (大判 2019도11552) ··············································································································· 73
39. ｢성폭력처벌법｣상 영상녹화물의 증거능력 (大判 2021도14530,2021전도143) ·························································································································· 75
[16] 재판의 기본개념 ·························································································· 77
40. 재판서 경정의 방법 (大判 2017도18536) ························································· 77
[17] 재판의 확정과 효력 ······················································································ 79
41. 재심판결의 기판력의 범위 (大判 2016도756) ···················································· 79
[18] 소송비용 ····································································································· 80
42. 무죄판결에 대한 비용보상 (大決 2018모906) ···················································· 80
[19] 상소의 일반이론 ·························································································· 81
43. 상소권회복청구의 기간 (大決 2019모3586) ······················································· 81
44. 일부상소에 대한 상소심의 파기 범위 (大判 2021도13108) ································· 82
45. 파기환송과 불이익변경금지의 원칙 (大判 2021도1282) ······································ 85
46. 부정기형과 불이익변경금지의 원칙 (大判 2020도4140, 전원합의체 판결) ············· 86
47. 보안처분과 불이익변경금지의 원칙 (大判 2019도11540) ···································· 90
[20] 항 소 ········································································································· 93
48. 항소이유서제출기간 도과 후 선임된 사선변호인에 대한 소송기록접수통지 (大判 2019도4221) ·············································································································· 93
49. 항소이유서 제출기간의 계산방법 (大決 2020모3694) ········································· 95
50. 항소심에서의 불출석재판의 허용요건 (大判 2019도5426) ··································· 96
51. 변호인의 피고인신문권 (大判 2020도10778) ····················································· 98
52. 제1심 증언의 신빙성 유무에 대한 항소심의 판단 (大判 2018도17748) ················ 99
53. 항소기각의 방법 (大判 2019도17995) ···························································· 100
54. 변론종결 후 불리한 양형자료가 제출된 경우 법원의 조치 (大判 2021도5777) ····· 101
[21] 상 고 ········································································································ 103
55. 양형부당과 상고이유 (大判 2020도8358) ························································ 103
[22] 재 심 ········································································································ 106
56. 위헌결정과 재심사유 (大判 2019도15167) ······················································ 106
57. 재심사유가 되는 위헌결정의 소급효가 미치는 범위 (大決 2015모2204) ·············· 107
58. 군사법원의 판결에 대한 재심사건의 관할 (大決 2019모3197) ··························· 109
59. 재심개시절차에서의 사실조사 (大決 2019모3554) ············································ 110
[23] 비상상고 ··································································································· 111
60. 비상상고의 대상 (大判 2019오1) ··································································· 111
61. 사실오인과 비상상고 (大判 2018오2) ····························································· 112
[24] 약식절차 ··································································································· 114
62. 정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부 (大判 2019도15700) ············································································································· 114
63. 정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부 (大判 2020도355) ················································································································· 115
[25] 즉결심판절차 ····························································································· 116
64. 범칙금 납부기간의 의미 (大判 2017도13409) ·················································· 116
65. 인장이나 지장이 없는 정식재판청구서의 적법성 여부 (大決 2017모3458) ················ 118
[26] 소년에 대한 특별절차 ················································································· 119
66. 소년법 제53조 본문의 적용범위 (大判 2018도3768) ········································ 119
[27] 재판의 집행 ······························································································· 120
67. 추징판결 집행의 대상 (大決 2020모4058) ······················································ 120

참고판례 ··········································································································· 121
판례색인 ··········································································································· 123