개정4판/전2권

본서의 서술방식, 최신판례, 최신개정법령의 반영, 핵심내용의 비교정리 등의 면에서 본서는 대체불 가능한(Non Fungible) 학습교재가 되는 것을 지향한다.

본서의 서술방식과 편집방식의 변화는 전적으로 수험적 관점에서 결정되었다. 기출문제의 분석과 반영은 본서서술의 가장 기본출발점이 되었다. 최근의 모든 시험경향이 변호사시험과 유사해진다는 점을 고려하여 변호사시험을 바탕으로 국가직, 법원직, 경찰승진, 경찰간부, 경찰채용, 군수사직, 교정직, 법원행시, 법무사시험 등 모든 직렬의 수험을 고려하여 교재를 집필하였다. 최근의 출제경향과 학계의 흐름, 판례의 흐름등을 체계적으로 분석함으로써 가장 효율적이고 대체불가능한 교재가 될 수 있도록 노력하였다.

제 1 편 총설

제1장 형사소송법의 기초
제1절 형사소송법의 의의와 성격 ···························································································1
제2절 형사소송법의 법원과 적용범위 ···················································································3
제3절 형사소송법의 역사 ····································································································9

제2장 형사소송법의 이념과 구조
제1절 형사소송의 지도이념 ·······························································································11
제2절 형사소송의 기본구조 ······························································································17

제 2 편 소송주체와 소송행위

제1장 소송의 주체와 당사자
제1절 소송주체와 당사자의 의미 ······················································································21
제2절 피고인 ·················································································································26
제3절 검사 ····················································································································39
제4절 법원 ····················································································································44
제5절 변호인 ··················································································································71
제6절 보조인 ·················································································································88

제2장 소송절차·소송행위·소송조건
제1절 소송절차의 기본구조 ·····························································································89
제2절 소송조건론 ···········································································································92
제3절 소송행위론 ···········································································································96

제 3 편 수사

제1장 수사총론
제1절 수사기관 ·············································································································123
제2절 수사의 의의와 수사의 단서 ·················································································133
제3절 고소·고발·자수 ·······························································································146
제4절 임의수사 ············································································································168

제2장 강제처분과 강제수사
제1절 수사구조론 ·········································································································201
제2절 체포 ··················································································································204
제3절 피의자와 피고인의 구속 ······················································································222
제4절 압수·수색·검증 ······························································································270
제5절 수사상 증거보전 ·································································································321

제 4 편 수사의 종결과 공소제기

제1장 수사의 종결
제1절 수사종결의 의의와 종류 ·······················································································331
제2절 불기소처분에 대한 불복 ······················································································335

제2장 공소의 제기
제1절 공소제기의 기본원칙 ···························································································345
제2절 공소와 공소권이론 ······························································································347
제3절 공소제기의 효과 ·································································································354
제4절 공소제기의 후의 수사 ························································································356
제5절 공소시효 ···········································································································360

제 5 편 공판

제1장 공소의 제기와 법원의 심판대상
제1절 공소제기의 방식 ·································································································379
제2절 공소제기와 법원의 심판대상 ···············································································399
제3절 공소장변경 제도 : 심판대상의 조정 ·····································································402

제2장 공판절차
제1절 공판절차의 기본원칙 ···························································································430
제2절 공판준비절차 ······································································································437
제3절 협의의 증거개시제도 ··························································································445
제4절 공판정의 심리 ···································································································453
제5절 공판기일의 절차 ·································································································463
제6절 증인신문 ············································································································477
제7절 공판절차의 특칙 ·································································································491
제8절 국민참여재판 제도 ·····························································································499

제3장 증거
제1절 증거의 의의와 종류 ·····························································································513
제2절 증명의 기본원칙 ·································································································516
제3절 위법수집증거배제법칙 ·························································································525
제4절 자백배제법칙 ·····································································································540
제5절 진술의 임의성 ····································································································547
제6절 전문법칙 ···········································································································549
제7절 당사자의 증거동의 ·····························································································604
제8절 자유심증주의 ······································································································611
제9절 탄핵증거 ···········································································································628
제10절 자백의 보강법칙 ·······························································································633
제11절 공판조서의 배타적 증명력 ····················································································642

제4장 재판
제1절 재판의 기본개념 ·································································································646
제2절 종국재판 ············································································································652
제3절 재판의 확정과 효력 ····························································································670
제4절 소송비용의 부담 및 무죄판결의 대한 비용보상 ·····················································684

제 6 편 상소·비상구제절차·특별절차·형의집행

제1장 상소
제1절 상소일반 ············································································································691
제2절 상소의 일반적 허용조건 ······················································································693
제3절 항소 ··················································································································724
제4절 상고 ··················································································································743
제5절 항고 ··················································································································756

제2장 비상구제절차
제1절 재심 ··················································································································764
제2절 비상상고 ············································································································791

제3장 특별형사절차
제1절 약식절차 ············································································································796
제2절 즉결심판절차 ·····································································································804
제3절 소년에 대한 형사절차 ··························································································811
제4절 배상명령·범죄피해자구조제도 ···············································································817

제4장 재판의 집행 및 형사보상제도
제1절 재판의 집행 ·······································································································824
제2절 형사보상제도 ·····································································································837

3판이 출간되고 어언 1년이 지났다. 지난 1년간에는 형사소송법과 형사소송규칙의 일부가 변경된 것 이외에는 특별한 법조문의 변화는 없었다.

그러나, 압수·수색에 있어서 제215조에서 규정한 관련성의 개념이 체계화되었고, 2024.7.25.에는 유류물의 압수에 대해 최초로 대법원이 판시한바 있고 기타 세밀한 증거법칙과 관련한 대용들을 대법원에서 확정하는 등 다양한 판례가 출현하게 되었다.

2008년 형사소송법의 개정에 즈음하여서는, 학계와 국회(입법자)에 의해 형사소송 실무가 변화하였다면, 2025년 현재의 형사절차는 가히 판례가 학계를 리딩한다고 해도 과언이 아닐 정도로 판례의 법리들이 지속적으로 축적되고 있다.

이에 4판 개정판은 바뀐 판례를 철저히 논리적으로 정리하는 데에 주력하였다.

본서의 서술방식, 최신판례, 최신개정법령의 반영, 핵심내용의 비교정리 등의 면에서 본서는 대체불 가능한(Non Fungible) 학습교재가 되는 것을 지향한다.

본서의 서술방식과 편집방식의 변화는 전적으로 수험적 관점에서 결정되었다. 기출문제의 분석과 반영은 본서서술의 가장 기본출발점이 되었다. 최근의 모든 시험경향이 변호사시험과 유사해진다는 점을 고려하여 변호사시험을 바탕으로 국가직, 법원직, 경찰승진, 경찰간부, 경찰채용, 군수사직, 교정직, 법원행시, 법무사시험 등 모든 직렬의 수험을 고려하여 교재를 집필하였다. 최근의 출제경향과 학계의 흐름, 판례의 흐름등을 체계적으로 분석함으로써 가장 효율적이고 대체불가능한 교재가 될 수 있도록 노력하였다.

본서의 핵심적 특징은 다음과 같다.

첫째, 2025.2.25.까지의 최신판례와 개정법령을 철저히 반영하였다.
둘째, 판례의 정확한 학습을 기하기 위해 판례의 제목선별에 신경을 써 판례제목만을 보더라도 판례의 내용이 정리될 수 있도록 하였다.
셋째, 형사소송법은 다른 과목에 비하여 법조문의 출제가 많다는 점, 법조문을 틈틈히 확인할 필요가 있다는 점 등을 감안하여 별도로 형사법전을 제작하여 세트화하였다
넷째, 법조문의 소개, 법조문의 해석, 판례의 태도를 유기적으로 연결하여 본문을 서술함으로써, 손쉽게 내용을 이해하고 정리할 수 있도록 구성하였다.
다섯째, 핵심내용과 기출지문에 언더라인 긋고, 볼드처리를 함으로써 학습의 강약을 스스로 조절할 수 있도록 하였다.
여섯째, 최근 시험은 이해위주로 출제된다는 점을 고려하여, 단지 단편적인 지식을 나열함에 그치는 것이 아니고 유기적이고 체계적으로 서술을 이어가는 데에 주력하였다.

필자는 오랜 시간 강의를 해오면서 수험생들이 요구하는 것이 무엇인지를 깊이 생각하였다. 본서는 가장 짧은 시간에 수험형사소송법을 마스터할 수 있도록 다양한 장치를 사용하였다. 수험전략에서 대체불가능 한 강의 또는 대체불가능 한 교재를 만들기 위해 많은 노력을 경주하였고 이러한 노력과 바램을 담아 본서의 명칭을 NFT(Non-Fungible Tutor)로 정하였다. 최근 모든 직렬의 법과목이 어려워지고 있다. 본서가 지향하는 목표만큼, 본서의 학습을 통해 모든 독자들이 효율적으로 형사소송법을 정리하여 대한민국 최고의 실무가로 거듭날 수 있기를 기원한다.

본서가 나오기까지 많은 분들의 도움이 있었다. 교재의 편집과 유통, 표지제작, 전체적인 교정 등을 함께 해준 동고동락한 김백선, 홍민교, 이종배, 노채선, 최의식 님과, 필자가 새롭게 도전할 수 있도록 길을 마련해준 지호남, 송영재, 이용구 님에게도 감사의 말씀을 전한다.

강의를 수강한 많은 수험생들은 필자의 집필방향을 제시하고 수험생이 찾고 있는 것이 무엇인지를 필자에게 제시하여 주었다. 그들은 독자이자 수험생이면서도 필자의 스승이 되었음을 고백한다.

형사법을 학습하면서 꾸준히 기출문제를 연습하고자 하는 독자들에게는 네오고시뱅크 NFT 신개념 모의고사 시스템 (https://neogosibank.co.kr)에서 랜덤모의고사를 활용해볼 것을 권하며 본서의 서문을 마무리하기로 한다.

2025년 2월 25일
필자 정주형