2023년 상반기판 형사소송법 1년간 최신판례정리

…… 형 사 소 송 법 ……
[1] 수사의 개시····································································································· 3
1. 부재자 재산관리인의 고소권 (大判 2021도2488)···················································· 3
[2] 대인적 강제수사······························································································· 5
2. 현행범인 체포의 요건 (大判 2021도12213) <미간행>············································· 5
[3] 대물적 강제수사······························································································· 7
3. 압수·수색영장에 기재된 범죄 혐의사실과의 관련성 (大判 2019도10309) <미간행>····· 7
4. 원격지 서버 저장정보에 대한 압수·수색의 적법성 (大決 2020모735)······················· 10
5. 원격지 서버에 저장된 정보에 대한 압수의 적법성 여부 (大判 2022도1452) <미간행>······················································································································ 12
6. 압수·수색절차의 적법성 (大決 2019모2584)························································· 14
7. 정보저장매체에 대한 압수의 절차와 방법 (大判 2022도2960)································ 17
8. 압수·수색절차의 적법성 (大決 2016모587)··························································· 19
9. 임의제출된 정보저장매체에 대한 압수·수색의 범위 (大判 2016도9596) <미간행>····· 21
10. ｢통신비밀보호법｣상 전기통신 감청의 의미 (大判 2022도9877)····························· 24
11. 통신비밀보호법상의 ‘공개되지 아니한 타인간의 대화’의 의미 (大判 2020도1007)··· 26
12. 수사기관의 영장 없는 사진촬영의 적법성 (大判 2018도8161)······························· 28
[4] 공소제기의 방식······························································································ 30
13. 공소사실 중 범죄의 ‘일시’의 기재 정도 (大判 2022도8257)································· 30
[5] 공소시효········································································································ 31
14. 공소시효의 연장과 소급효 (大判 2020도1153)···················································· 31
15. 공소제기 후 형사처분을 면할 목적으로 국외에 있는 경우 (大判 2020도13547)······ 33
16. 형사소송법 제253조 제3항의 ‘형사처분을 면할 목적’의 의미 (大判 2019도5925)···· 34
[6] 공판심리의 범위······························································································ 36
17. 공소장변경의 필요성이 없음에도 공소장을 변경한 경우 (大判 2022도10564)········· 36
[7] 증거조사와 강제처분························································································ 37
18. 구속집행정지의 조건으로서 전자장치의 부착 여부 (大決 2022모1799)··················· 37
[8] 증거법의 기본개념··························································································· 39
19. 간접증거에 의한 증명의 정도 (大判 2022도2236)··············································· 39
[9] 증명의 기본원칙······························································································ 41
20. 증명력의 판단방법 (大判 2022도11245, 2022보도52)········································· 41
21. ‘위드마크 공식’의 적용을 위한 증명의 방법 (大判 2021도14074)·························· 43
22. 강간죄에서 피해자의 진술의 증명력 (大判 2018도19037) <미간행>······················ 45
23. 성폭력 피해자의 진술의 신빙성 판단방법 (大判 2021도3451)······························· 47
24. 성폭력 피해자의 진술의 증명력 판단방법 등 (大判 2020도11185)························ 49
[10] 전문법칙······································································································ 51
25. 공사사실 중 범죄 ‘일시’ 특정의 정도 및 검찰 피의자신문조서의 증거능력 (大判 2023도2102)··············································································································· 51
26. 수사과정에서 작성한 진술서의 증거능력 (大判 2022도9510)································ 53
27. 진술조서의 실질적 진정성립을 증명할 수 있는 영상녹화물의 의미 (大判 2022도364)···················································································································· 55
28. 세무공무원이 작성한 범칙혐의자심문조서의 증거능력 (大判 2022도8824)·············· 59
[11] 재판의 기본개념···························································································· 61
29. 재판장의 판결 변경 선고의 적법성 (大判 2017도3884)········································ 61
30. 재판서에 법관의 날인이 누락된 경우 (大判 2021도17427) <미간행>····················· 63
[12] 상소의 일반이론···························································································· 64
31. 공시송달의 적법요건과 상소권회복청구의 적법 여부 (大決 2022모439)················· 64
32. 상소권회복청구의 적법성 (大決 2023모350)······················································· 66
33. 집행유예취소결정에 대한 즉시항고권회복청구에 재소자 특칙의 적용여부 (大決 2022모1004)·················································································································· 67
[13] 항 소··········································································································· 68
34. 항소심에서의 피고인 불출석 재판의 요건 (大判 2022도7940)······························· 68
35. 항소심에서 증인 진술의 신빙성에 대해서 제1심과 다른 판단을 하는 경우 (大判 2017도11582)············································································································· 69
36. 증언의 신빙성 판단이 제1심과 항소심이 다른 경우 (大判 2022도14645)··············· 71
37. 형사소송법 제364조의2에서 ‘항소한 공동피고인’의 범위 (大判 2021도10579)········ 73
[14] 상 고··········································································································· 74
38. 상고이유서를 제출해야 하는 자 (大決 2022도16568)·········································· 74
39. 비약적 상고에 항소로서의 효력의 인정여부 (大判 2021도17131, 2021전도170, 전원합의체 판결)············································································································ 75
[15] 항 고··········································································································· 79
40. 준항고 대상을 특정하기 어려운 경우 법원이 취해야 할 조치 (大決 2022모1566)··· 79
[16] 재 심··········································································································· 81
41. 재심청구의 대상 (大決 2022모509)··································································· 81
[17] 비상상고······································································································ 83
·선고형의 한계를 초과한 경우 (大判 2021오12) <미간행>········································· 83
·선고형의 한계를 초과한 경우 (大判 2021오24) <미간행>········································· 83
[18] 약식절차······································································································ 84
42. 정식재판청구와 정식재판청구권회복청구의 적법요건 (大決 2022모1872)················ 84
[19] 피해자 보호절차···························································································· 86
43. 배상명령과 ‘다른 절차에 따른 손해배상청구’의 관계 (大判 2020도12279)············· 86
[20] 형사보상과 명예회복······················································································ 88
44. 공소기각결정에 대한 형사보상청구기간 (大決 2020모627)··································· 88