2020 형사소송법 3년간 판례정리

…… 형 사 소 송 법 ……
[1] 수사의 방법 ···································································································· 3
･피의자신문시 보호장비 사용 여부 및 변호인의 피의자신문 참여권 침해 여부(大決 2015모2357) ··········· 3
[2] 대물적 강제수사 ······························································································ 5
･전자정보에 대한 압수·수색의 방법과 절차(大判 2017도13263) ·································· 5
･수출입물품에 대한 조사·압수와 영장주의(大判 2014도8719) ····································· 7
･압수·수색과 사건과의 관련성(大判 2017도13458) ···················································· 8
･압수·수색과 사건과의 관련성(大判 2019도14341) ·················································· 10
･압수·수색영장의 장소적 범위(大判 2017도9747) ···················································· 12
･압수·수색영장의 제시방법(大決 2019모3526) ························································· 14
･압수·수색영장 집행절차의 적법요건(大判 2015도12400) ········································· 15
･압수물의 가환부(大決 2017모236) ········································································ 18
･강제채뇨의 요건과 절차 및 방법(大判 2018도6219) ··············································· 20
･체포 목적의 피의자 수색의 허용요건(憲決 2015헌바370,2016헌가7(병합)) ···················· 22
･범죄장소에서의 압수·수색·검증과 하자의 치유(大判 2014도16080) ·························· 23
･긴급체포 후의 압수·수색·검증의 요건과 절차(大判 2017도10309) ···························· 24
･비밀녹음한 전화통화내용의 증거능력(大判 2015도1900) ········································· 25
[3] 수사의 종결 ·································································································· 27
･증인에 대한 검찰 진술조서의 증거능력(大判 2013도6825) ················································ 27
[4] 공소와 공소권이론 ························································································· 29
･공소권남용의 요건과 효과(大判 2018도14295) ······················································ 29
[5] 공소제기의 기본원칙 ······················································································ 30
･하자 있는 공소제기결정에 대한 불복방법(大判 2017도13465) ································· 30
･재정신청 기각결정 확정 후의 소추의 요건(大判 2014도17182) ································ 31
[6] 공소제기의 방식 ···························································································· 33
･공소사실이 부분적으로 특정되지 않은 경우(大判 2019도10086) ······························ 33
･공소사실이 부분적으로 특정되지 않은 경우(大判 2017도3448) ································ 35
[7] 공소시효 ······································································································· 37
･｢공직선거법｣ 위반죄의 공소시효 기산일(大判 2019도8815) ····································· 37
･미수범의 공소시효의 기산점(大判 2016도14820) ··················································· 38
[8] 변호인 ·········································································································· 39
･‘피고인이 심신장애의 의심이 있는 때’ 국선변호인의 선정 여부(大判 2019도8531) ····· 39
･반의사불벌죄에서 변호인의 처벌불원의사표시의 대리(大判 2019도10678) ················· 41
[9] 공판심리의 범위 ···························································································· 43
･공소사실의 동일성의 판단기준(大判 2018도20928) ················································ 43
･공소사실의 비양립관계 여부(大判 2018도3688) ····················································· 45
･공소장변경의 필요성(大判 2018도5909) ································································ 46
･공소장변경의 필요성(大判 2019도4608) ································································ 48
･공소장변경과 피고인의 동의(大判 2017도5122) ····················································· 50
[10] 공판정에서의 심리 ······················································································· 51
･전문심리위원 참여절차의 적법성(大判 2018도19051) ············································· 51
･피고인과 변호인의 최종의견진술(大判 2018도327) ················································· 52
[11] 증거조사와 강제처분 ···················································································· 53
･피고인 소환의 방법(大判 2018도13377) ······························································· 53
[12] 증명의 기본원칙 ·························································································· 55
･간접증거에 의한 사실인정의 요건(大判 2017도1549) ·············································· 55
･피해자의 진술의 증명력(大判 2018도7709) ··························································· 57
･과학적 증거방법의 증명력 인정요건(大判 2017도14222) ········································· 60
[13] 위법수집증거배제법칙 ··················································································· 62
･위법수집증거와 증거배제의 기준(大判 2018도20504) ············································· 62
･위법수집증거배제법칙과 독수의 과실이론(大判 2018도4075) ··································· 65
[14] 전문법칙 ····································································································· 67
･본래증거와 전문증거의 구별기준(大判 2018도13792, 전원합의체 판결) ···················· 67
･본래증거와 전문증거의 구별기준(大判 2017도19499) ············································· 69
･‘공범에 대한 사법경찰관 작성 피의자신문조서’ 및 ‘전문진술’의 증거능력(大判 2019도11552) ········· 71
･진술조서, 전문진술, 전문진술을 기재한 조서의 증거능력(大判 2015도12981,2015전도218) ···· 73
･압수조서에 기재된 ‘압수경위’의 증거능력 인정요건(大判 2019도13290) ··················· 75
･정당하지 않은 증언거부와 제314조의 적용여부(大判 2018도13945, 전원합의체 판결) ····· 77
･기타 특히 신용할 만한 정황에 의하여 작성된 문서(大判 2017도12671) ···················· 79
[15] 자백보강법칙 ······························································································· 80
･자백에 대한 보강증거의 자격과 범위(大判 2017도20247) ······································· 80
･자백에 대한 보강증거의 범위(大判 2017도17628) ······················································· 82
[16] 재판의 확정과 효력 ······················································································ 83
･보호처분 불처분결정과 일사부재리의 원칙(大判 2016도5423) ·································· 83
･재심판결의 기판력의 범위(大判 2016도756) ·························································· 85
･과형상 일죄와 기판력의 범위(大判 2017도11687) ·················································· 86
･기판력과 공소사실의 동일성(大判 2015도11679) ··················································· 87
･기판력과 공소사실의 동일성(大判 2013도7649) ····················································· 88
[17] 소송비용 ····································································································· 89
･무죄판결에 대한 비용보상(大決 2018도906) ···································································· 89
[18] 상소의 일반이론 ·························································································· 90
･약식명령에 대한 정식재판청구권 회복의 사유(大決 2017모1557) ····························· 90
･상소권회복청구의 시기(大判 2018도15109) ··························································· 91
･보안처분과 불이익변경금지의 원칙(大判 2016도15961) ·········································· 93
･보안처분과 불이익변경금지의 원칙(大判 2018도13367) ·········································· 94
･보안처분과 불이익변경금지의 원칙(大判 2019도11540) ·········································· 95
[19] 항 소 ········································································································· 97
･소송기록접수통지 후 선임된 사선변호인에 대한 소송기록접수통지 여부(大決 2015도10651, 전원합의체 결정) ·························································································································· 97
･항소이유서제출기간 도과 후 선임된 사선변호인에 대한 소송기록접수통지(大判 2019도4221) ··· 99
･소송기록접수통지의 상대방(大決 2018모642) ······················································· 101
･재감자에 대한 소송기록접수통지의 방법(大決 2017모1680) ··································· 102
･재감자에 대한 소송기록접수통지의 방법(大決 2017모2162) ··································· 103
･항소이유서 제출기간 경과 전의 심판(大判 2017도13748) ······································ 104
･항소법원의 심판범위(大判 2016도18553) ···························································· 105
･항소심에서의 불출석재판의 허용요건(大判 2019도5426) ······································· 106
･항소심에서 공시송달의 허용요건(大判 2018도14531) ············································ 107
･제1심 증언의 신빙성 유무에 대한 항소심의 판단(大判 2018도17748) ····················· 108
[20] 상 고 ········································································································ 110
･소송절차의 법령위반과 상고이유(大判 2018도19034) ··········································· 110
･양형자료의 변동과 상고이유(大判 2017도14769) ·················································· 111
･상고이유 제한의 법리(大判 2017도16593-1, 전원합의체 판결) ······························ 112
[21] 항 고 ········································································································ 117
･항고 및 재항고의 절차(大決 2017모1377) ······································································· 117
･항고법원의 소송기록접수 등의 통지(大決 2018모1698) ······················································· 118
[22] 재 심 ········································································································ 119
･재심대상판결의 판결서가 발견되지 않은 경우(大決 2015모2229, 전원합의체 결정) ········· 119
･재심의 대상 및 사유(大決 2015모3243) ······························································ 122
･합헌결정 이전의 간통에 대한 재심(大判 2019도15167) ········································· 124
･재심사유가 되는 위헌결정의 소급효가 미치는 범위(大決 2015모2204) ···················· 125
･재심판결과 불이익변경금지의 원칙 등(大判 2018도13382) ···································· 127
･재심판결과 불이익변경금지의 원칙(大判 2015도15782) ········································· 128
[23] 비상상고 ··································································································· 130
･사실오인과 비상상고(大判 2017오1) ··································································· 130
[24] 약식절차 ··································································································· 131
･정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부(大判 2019도15700) ·· 131
･정식재판에 다른 사건이 병합심리된 경우 ‘형종상향금지원칙’의 적용여부(大判 2020도355) ···· 132
[25] 즉결심판절차 ····························································································· 133
･범칙금 납부기간의 의미(大判 2017도13409) ························································ 133
･인장이나 지장이 없는 정식재판청구서의 적법성 여부(大決 2017모3458) ················· 134
[26] 소년에 대한 특별절차 ················································································· 135
･소년법 제53조 본문의 적용범위(大判 2018도3768) ·············································· 135
[27] 피해자 보호절차 ························································································ 136
･배상명령의 적법성(大判 2018도17726) ······························································· 136
[28] 형사보상과 명예회복 ·················································································· 137
･미결구금일수가 본형에 산입된 경우와 형사보상(大決 2017모1990) ························ 137

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