공정하고 인권친화적인 형사절차를 위한 형사사법의 선진화 방안 연구 5

국문요약 ····················································································1

제1장 김유근
서 론 ·······················································································11

제2장 심승범
군 수사 및 군사재판에서의 인권침해사례의 분석 ··············29
제1절 군 수사절차에서의 인권침해 사례 ··············································31
1. 사례분석 ···························································································32
가. 군사법경찰의 과도한 개인정보 질의
(2020. 10. 13.자 결정 20진정0229700) ·····································32
1) 사실관계 ·····················································································32
2) 당사자의 주장 및 참고인 진술 ···················································32
3) 인정사실 및 판단 ·······································································33
나. 군 수사과정에서 의료조치 미흡 및 폭행 의견표명
(2017. 9. 28. 결정 17진정6228) ·················································34
1) 사실관계 ·····················································································34
2) 당사자 주장 및 참고인 진술 ······················································35
3) 인정사실 및 판단 ·······································································35
다. 군부대 가혹행위 등 직권조사
(2018. 6. 7. 결정16직권25.15진정2938.16진정3885.
16진정9023.16진정9220(병합)) ····················································36
1) 사실관계 ·····················································································36
2) 인정사실 ·····················································································37
3) 판단 및 제도적 개선 권고 ·························································37
라. 성소수자 색출 및 수사(2018. 4. 13. 결정 17진정3357 외
243건(병합)) ····················································································38
1) 사실관계 ·····················································································39
2) 당사자의 주장 및 피해자 진술 ···················································39
3) 인정사실 및 판단 ·······································································40
2. 소결 ··································································································41
제2절 군 공판절차에서의 인권침해 사례 ··············································43
1. 사례분석 ···························································································43
가. 피고인에 대한 공소사실 유출로 인한 사생활 침해
(2021. 11. 25. 결정 21진정0429800) ········································43
1) 사실관계 ·····················································································43
2) 당사자의 주장 및 참고인 진술 ···················································44
3) 인정사실 및 판단 ·······································································44
나. 법정 내에서 부당한 포승줄 및 수갑 착용(2016. 7. 20. 결정
16진정2056) ···················································································45
1) 사실관계 ·····················································································45
2) 당사자 주장 및 참고인 진술 ······················································46
3) 인정사실 및 판단 ·······································································46
다. 직권남용에 의한 인권침해
(2005. 2. 28. 결정 04진인3966) ·················································47
1) 사실관계 ·····················································································47
2) 당사자의 주장 ·············································································48
3) 인정사실 및 판단 ·······································································48
2. 소결 ··································································································49
제3절 기타 절차상 인권침해 사례 ························································50
1. 사례분석 ···························································································50
가. 2016년 군 영창 방문조사에 따른 권고
(2017. 1. 24. 결정 16방문3) ·······················································50
1) 사실관계 ·····················································································50
2) 인정사실 및 판단 ·······································································51
나. 2021년 군 교정시설 방문조사에 따른 권고
(2021. 12. 28. 결정 21방문0000500) ········································52
1) 사실관계 ·····················································································52
2) 인정사실 및 판단 ·······································································52
다. 2020년 군 구금시설 방문조사에 따른 권고
(2020. 10. 13. 결정 20방문0000100) ········································53
1) 사실관계 ·····················································································53
2) 인정사실 및 판단 ·······································································54
2. 소결 ··································································································55

제3장 김유근
군 형사사법개혁을 위한 개정논의 ········································57
제1절 2021년까지의 개정논의 ······························································59
1. 군사법원법 개정논의 ········································································59
가. 군 형사사법제도의 개혁논의 ····························································59
나. 국방개혁 2.0 ···················································································61
다. 입법적 시도 ······················································································64
2. 군 형사사법절차의 일반 형사사법절차로의 접근 ·····························68
제2절 2021년 개정 「군사법원법」의 주요 내용 ····································85
1. 주요 내용 ·························································································85
2. 2021년 「군사법원법」 개정 이후의 개정논의 ··································94
제3절 소결 ·····························································································96

제4장 김유근
군사재판제도에 관한 국제인권규범과 주요 외국 입법례 ···99
제1절 국제인권규범 및 원칙 ·······························································101
제2절 주요 외국 입법례에서의 군사재판의 일반 형사소송절차로의 접근 ·109
제3절 군사법원의 폐지 ········································································120
1. 대만 ································································································120
2. 프랑스 ····························································································122
3. 독일 ································································································123
4. 네덜란드 ·························································································124
제4절 순수군사법원모델에서의 군사재판절차의 일반재판절차로의 접근 · 126
1. 영국 ································································································126
2. 미국 ································································································129
3. 스위스 ····························································································132
제5절 소결 ··························································································134

제5장 김유근
2021년 개정 「군사법원법」의 문제점과 개선방안 ············137
제1절 평시 군사법원의 유지의 문제 ···················································139
1. 군사법원의 존치론과 폐지론의 첨예한 대립 ··································140
2. 군사법원의 필요성을 둘러싼 논쟁 ·················································142
3. 군사법원체계에 내재하는 구조적인 문제점과 민주적 정당성 ········150
제2절 민간인에 대한 군사재판 ····························································157
1. 연혁 ································································································157
2. 대상범죄 ·························································································160
3. 문제점 및 개선방안 ········································································163
가. 평시 군사법원의 민간인에 대한 재판권 ········································163
나. 비상사태 하에서의 민간인에 대한 군사재판 ··································168
제3절 비상계엄 하에서의 단심제 군사재판의 문제점 ·························175
1. 연혁 ································································································176
2. 문제점 및 개선방안 ········································································180
제4절 군사법원이 재판권을 가지는 대상범죄와 법원이 재판권을 가지는
대상범죄의 문제점 ····································································188
제5절 법원이 재판권을 가지는 범죄에서의 수사의 단서에 대한
조사(내사)권한과 수사개시권의 문제 ········································193
제6절 군판사, 군검사 그리고 군사법경찰관의 독립성 및 중립성 ·······202
1. 군판사의 독립성의 문제 ·································································202
2. 군검사의 독립성 ·············································································205
가. 군검사의 독립성 ·············································································205
나. 국방부장관의 기소결정권과 검사의 기소권의 독립 ························209
3. 전관예우의 문제 ·············································································212
4. 군사법경찰의 독립성 ······································································212
제7절 관할관제도 및 심판관제도의 전시 보통군사법원에서의 존치 ··· 216
1. 전시 관할관제도 ·············································································216
2. 전시 심판관제도 ·············································································222
제8절 소결 ··························································································228

제6장 김대원
군 수사에서의 문제점과 개선방안 ·····································235
제1절 군 수사기관의 종류 ··································································237
1. 군검사 ····························································································238
가. 군검사의 임명 ················································································238
나. 군검사의 지위 ················································································238
다. 군검사의 직무 ················································································239
라. 군검찰단 ·························································································239
2. 군사법경찰관리 ···············································································240
가. 군사경찰과 소속 군사법경찰관 ······················································240
나. 군사안보지원부대 소속 군사법경찰관 ············································241
다. 국가정보원 소속 군사법경찰관 ······················································241
라. 군검찰수사관 ··················································································241
3. 양자의 관계 ····················································································242
가. 일반 형사소송법상의 관계 ·····························································242
나. 「군사법원법」상 양자의 관계 ··························································242
제2절 군 수사기관의 자격 및 전문성, 독립성, 중립성 ······················244
1. 군검사 ····························································································244
가. 자격.전문성 ···················································································244
나. 독립성.중립성 ················································································244
2. 군사법경찰 ······················································································245
가. 자격.전문성 ···················································································245
1) 군사법경찰관 ············································································245
2) 군검찰수사관 ············································································246
나. 독립성.중립성 ················································································246
제3절 수사절차에서 피의자의 권리 및 피해자의 보호방안 ·················248
1. 피의자의 권리 보호방안 ·································································248
2. 피해자 보호방안 ·············································································249
제4절 주요 외국의 입법례 ··································································251
1. 미국의 군 수사절차 (김대원) ·························································251
가. 수사체계 ·························································································251
나. 지휘관의 재량적 처분권 ·································································251
2. 독일의 군 수사절차 (김정환) ·························································252
가. 원칙 ·······························································································252
나. 해외파병 군인의 예외 ····································································253
3. 프랑스의 군 수사절차 (심승범) ······················································255
가. 평시의 수사절차 ·············································································255
1) 수사의 전개 ··············································································255
2) 수사의 지휘 ··············································································256
나. 전시의 수사절차 ·············································································258
4. 스위스의 군 수사절차 (심승범) ······················································260
가. 군 수사절차의 개시 ·······································································260
1) 수사의 주체 ··············································································260
가) 복무 중(en service)에 발생한 사건에 대해 ··························261
나) 복무 이외(en dehors du service)의 시간에 발생한
사건에 대해 ·············································································263
2) 수사의 종류 ··············································································264
가) 증거보충수사 (L’enquete en complement de preuve) ··· 264
나) 일반수사 (L’enquete ordinaire) ···········································266
나. 군 수사지휘 및 공소제기 ·······························································267
5. 소결 (김대원) ·················································································268
제5절 소결 ··························································································272

제7장 김정환
군사재판절차의 문제점과 개선방안 ····································273
제1절 재판의 독립성 확보 ··································································275
1. 관할관과 심판관의 폐지 ·································································275
가. 관할관 ····························································································275
나. 심판관 ····························································································276
다. 소결 ·······························································································277
2. 군판사의 독립성 ·············································································278
가. 군사법원 재판관의 변천 ·································································278
나. 군판사의 신분상 독립성 ·································································279
다. 소결 ·······························································································281
제2절 군사재판 공판절차의 개선 ························································283
1. 국선변호인 제도 ·············································································283
가. 군사재판에서 국선변호인 규정 ······················································283
나. 군사재판에서 국선변호인 현황 ······················································284
다. 군사재판에서 국선변호인 제도의 평가 ··········································285
2. 피고인에 대한 조건부 구속(석방)의 도입 ······································286
가. 조건부 구속(석방) ··········································································286
나. 군사재판에서 피고인에 대한 조건부 구속의 도입 ·························288
3. 군검사 작성 피의자신문조서의 증거능력 인정요건 ························289
가. 검사 작성 피의자신문조서의 증거능력 ··········································289
1) 연혁 ··························································································289
2) 현행 증거능력 인정요건 ···························································291
나. 군검사 작성 피의자신문조서의 증거능력 인정요건 ························292
1) 군검찰제도 개정의 한계 ···························································292
2) 군검사 작성의 피의자신문조서의 증거능력 인정요건으로서
피고인의 내용인정 ····································································293
4. 전문심리위원 ··················································································294
가. 의의 ·······························································································294
나. 「형사소송법」상 전문심리위원 ························································295
다. 군사재판에 전문심리위원제도의 도입 ············································296
5. 장병참여재판 ··················································································299
가. 2006년 「장병등의 군사재판 참여에 관한 법률안」·······················299
나. 장병참여재판의 활용성에 대한 의문 ··············································301
제3절 주요 외국의 입법례 ··································································303
1. 미국의 군사재판 (김대원) ······························································303
2. 독일의 군사재판 (김정환) ······························································304
가. 독일 군사법원의 역사 ····································································304
나. 현행 독일 연방군 ···········································································306
다. 현행 독일의 「군형법」····································································307
라. 현행 독일의 군사법원 ····································································307
1) 원칙 ··························································································307
2) 해외파병 군인의 재판권에 대한 예외 ······································308
3) 방위사태에 대한 예외 ······························································310
마. 징계와 군무법원 ·············································································311
3. 프랑스의 군사재판 (심승범) ···························································312
가. 평시의 재판절차 ·············································································313
나. 전시 및 비상사태시의 재판절차 ·····················································315
1) 군사법원의 설치 ·······································································315
2) 공판 및 평의의 전개 ································································317
다. 소결 ·······························································································318
4. 스위스의 군사재판 (심승범) ···························································319
가. 군 재판절차의 성격 ·······································································320
1) 군사법원의 독립성 ····································································320
2) 재판절차의 기본원칙 ································································321
나. 군 재판절차의 전개 ·······································································322
1) 공판절차 개시 전 ·····································································322
2) 공판절차 개시 후 ·····································································324
다. 소결 ·······························································································325
5. 입법례 검토 (김정환) ·····································································326
가. 입법례 정리 ···················································································326
나. 군사재판의 방향성 ·········································································329
제4절 소결 ··························································································331

제8장 김유근.김정환
결론 및 정책대안 ·································································337

참고문헌 ···············································································351
관련문헌 ···············································································379
Abstract ···············································································387