“2023년 3년간 최신판례”에 대하여

본서는 2020년 7월부터 2023년 6월까지의 대법원 형법 판례를 정리한 교재이다.

최근의 출제경향을 보면 최신판례의 출제비중이 상당히 높다. 

본서를 통해서 최신판례에 대한 충분한 준비를 할 수 있도록 내용을 구성하였다.

1. 사실관계의 정리

판례는 구체적이고 특정한 사건에 대한 대법원의 판단이다. 그러므로 그 사건의 사실관계를 모르면서 판결요지만 공부하는 것은 어떤 영화의 줄거리도 모르면서 그 영화에 대해서 논하는 것처럼 실로 무의미하고 어리석은 행동이다. 이에 본서에서는 가장 먼저 판례의 사실관계를 정리하여 소개함으로써 판례를 보다 정확하게 이해할 수 있도록 하였다. 또한 최근의 문제경향이 “사례형”으로 변화해 가고 있으므로 사례를 중시하는 학습방법의 중요성이 더욱 강조되는 시점이라고 할 수 있다. 

2. 쟁점의 부각

어떤 사건이 제1심이나 항소심에서 종결되지 않고 상고심인 대법원까지 올라왔다는 것은 그 사건에서 무엇인가 다투어지는 쟁점이 있었다는 것을 의미한다. 따라서 이러한 쟁점이 무엇인지를 모르고서 판례를 공부하는 것은 어떤 문제인지도 모르면서 해설만 읽는 것과 마찬가지로 역시 무의미하다. 이에 본서에서는 판례의 내용을 소개하기 전에 먼저 질문의 형태로 그 사건에서 다투어졌던 쟁점을 세분화하여 구체적으로 부각시킴으로써 판례를 보다 정확하게 이해할 수 있도록 하였다. 

3. 중요부분의 강조

판례를 정식으로 공부하기 위해서는 판결문 전체를 읽어야 하겠지만, 그 내용이 방대하기 때문에 대법원은 판례의 핵심적 내용을 “판결요지”의 형태로 정리해서 제공하고 있다. 이에 따라 본서에서는 판결요지는 전체를 수록하였고, 이것만으로 이해가 어려울 경우에는 판결문에서 판결이유를 발췌해서 소개하였다. 그러나 최근에는 이 판결요지의 분량도 매우 많아져서 학습의 부담을 가중시키고 있다. 이에 본서에서는 객관식 문제의 지문으로 출제가 가능하거나 주관식 문제의 답안에 서술해야만 하는 중요부분에 대해서는 언더라인이나 고딕체로 강조함으로써 학습의 능률을 높이고 최종정리시에 신속한 정리가 가능하도록 하였다.

 2023. 6. 25.

법학박사  신 호 진

……  형 사 소 송 법  ……

[1] 수사의 개시 ···································································································· 3

1. 부재자 재산관리인의 고소권 (大判 2021도2488) ··················································· 3

[2] 수사의 방법 ···································································································· 5

2. 임의동행의 종류 (大判 2020도398) ····································································· 5

[3] 대인적 강제수사 ······························································································ 6

3. 현행범인 체포의 요건 (大判 2021도12213) <미간행> ············································ 6

4. 구속영장 발부 후 구속의 집행시기 (大判 2020도16438) ········································ 8

[4] 대물적 강제수사 ······························································································ 9

5. 압수와 사건과의 관련성 (大判 2021도3756) ························································· 9

6. 압수·수색영장에 기재된 범죄 혐의사실과의 관련성 (大判 2019도10309) <미간행> ·· 10

7. 원격지 서버 저장정보에 대한 압수·수색의 적법성 (大決 2020모735) ····················· 13

8. 원격지 서버에 저장된 정보에 대한 압수의 적법성 여부 (大判 2022도1452) <미간행> ·························································································································· 15

9. 압수·수색에의 참여권 (大判 2020도10729) ························································· 17

10. 정보저장매체에 대한 압수의 절차와 방법 (大判 2022도2960) ····························· 19

11. 압수·수색절차의 적법성 (大決 2016모587) ······················································· 21

12. 전자정보에 대한 압수의 방법 (大決 2021모1586) ·············································· 23

13. 압수·수색절차의 적법성 (大決 2019모2584) ······················································ 25

14. 헌법불합치결정과 그에 따른 개정 형사소송법의 소급적용 여부 (大判 2018도13458) ·························································································································· 28

15. 임의제출된 정보저장매체에 대한 압수의 범위 (大判 2016도348, 전원합의체 판결) ·························································································································· 30

16. 임의제출된 정보저장매체에 대한 압수·수색의 범위 (大判 2016도9596) <미간행> ·· 35

17. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2019도4938) ··········· 38

18. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2021도11170) ········· 40

19. ｢통신비밀보호법｣상 전기통신 감청의 의미 (大判 2022도9877) ···························· 45

20. 통신비밀보호법상의 ‘공개되지 아니한 타인간의 대화’의 의미 (大判 2020도1007) ·· 47

21. 수사기관의 영장 없는 사진촬영의 적법성 (大判 2018도8161) ····························· 49

[5] 공소와 공소권이론 ························································································· 51

22. 공소권남용의 효과 (大判 2016도14772) ··························································· 51

[6] 공소제기의 방식 ···························································································· 52

23. 공소제기의 방식과 하자의 치유 (大判 2019도17150) ········································· 52

24. 공소제기의 방식 (大判 2019도16259) ······························································ 53

25. 공소사실 중 범죄의 ‘일시’의 기재 정도 (大判 2022도8257) ································ 54

[7] 공소시효 ······································································································· 55

26. 공소시효의 연장과 소급효 (大判 2020도1153) ·················································· 55

27. 공소제기 후 형사처분을 면할 목적으로 국외에 있는 경우 (大判 2020도13547) ····· 57

28. 형사소송법 제253조 제3항의 ‘형사처분을 면할 목적’의 의미 (大判 2019도5925) ·· 58

[8] 소송행위 ······································································································· 60

29. 재판확정기록의 열람·등사와 정보공개법에 의한 공개청구의 관계 (大決 2021모3175) ·························································································································· 60

[9] 공판심리의 범위 ···························································································· 62

30. 공소사실의 동일성 (大判 2020도3593) ····························································· 62

31. 공소장변경의 필요성이 없음에도 공소장을 변경한 경우 (大判 2022도10564) ········ 63

32. 공소장변경허가신청서 부본을 송달하지 않은 경우 (大判 2019도7217) ················· 64

[10] 증거조사와 강제처분 ···················································································· 66

33. 증인의 불출석에 대한 법원의 조치 (大判 2020도2623) ······································ 66

34. 증인신문시 반대신문권의 보장 (大判 2016도17054) ·········································· 68

35. 구속집행정지의 조건으로서 전자장치의 부착 여부 (大決 2022모1799) ················· 70

[11] 증거법의 기본개념 ······················································································· 71

36. 간접증거에 의한 증명의 정도 (大判 2022도2236) ·············································· 71

[12] 증명의 기본원칙 ·························································································· 73

37. 증명력의 판단방법 (大判 2022도11245, 2022보도52) ········································ 73

38. ‘위드마크 공식’의 적용을 위한 증명의 방법 (大判 2021도14074) ························ 75

39. 강간죄에서 피해자의 진술의 증명력 (大判 2018도19037) <미간행> ····················· 77

40. 검사의 사전면담 후 증인의 증언의 신빙성 (大判 2020도15891) ·························· 79

41. 성폭행 피해자의 진술의 증명력 판단방법 등 (大判 2020도6965, 2020전도74) ····· 82

42. 성폭력 피해자의 진술의 신빙성 판단방법 (大判 2021도3451) ····························· 84

43. 성폭력 피해자의 진술의 증명력 판단방법 등 (大判 2020도11185) ······················· 86

[13] 위법수집증거배제법칙 ··················································································· 88

44. 외국인에 대한 체포·구속시 영사통보권을 고지하지 않은 경우 (大判 2021도17103) ·························································································································· 88

[14] 전문법칙 ····································································································· 90

45. 공사사실 중 범죄 ‘일시’ 특정의 정도 및 검찰 피의자신문조서의 증거능력 (大判 2023도2102) ·············································································································· 90

46. 수사과정에서 작성한 진술서의 증거능력 (大判 2022도9510) ······························· 92

47. 형사소송법 제312조 제3항의 적용범위 (大判 2016도9367) ································ 94

48. 진술조서의 실질적 진정성립을 증명할 수 있는 영상녹화물의 의미 (大判 2022도364) ·························································································································· 96

49. 세무공무원이 작성한 범칙혐의자심문조서의 증거능력 (大判 2022도8824) ··········· 100

50. ｢성폭력처벌법｣상 영상녹화물의 증거능력 (大判 2021도14530, 2021전도143) ····· 102

[15] 재판의 기본개념 ························································································ 104

51. 재판장의 판결 변경 선고의 적법성 (大判 2017도3884) ···································· 104

52. 재판서에 법관의 날인이 누락된 경우 (大判 2021도17427) <미간행> ················· 106

53. 재판서 경정의 방법 (大判 2017도18536) ························································ 107

[16] 상소의 일반이론 ························································································ 109

54. 공시송달의 적법요건과 상소권회복청구의 적법 여부 (大決 2022모439) ·············· 109

55. 상소권회복청구의 적법성 (大決 2023모350) ···················································· 111

56. 집행유예취소결정에 대한 즉시항고권회복청구에 재소자 특칙의 적용여부 (大決 2022모1004) ··············································································································· 112

57. 일부상소에 대한 상소심의 파기 범위 (大判 2021도13108) ································ 113

58. 파기환송과 불이익변경금지의 원칙 (大判 2021도1282) ···································· 115

59. 부정기형과 불이익변경금지의 원칙 (大判 2020도4140, 전원합의체 판결) ··········· 116

[17] 항 소 ········································································································ 120

60. 항소이유서 제출기간의 계산방법 (大決 2020모3694) ······································· 120

61. 항소심에서의 피고인 불출석 재판의 요건 (大判 2022도7940) ··························· 122

62. 항소심에서 증인 진술의 신빙성에 대해서 제1심과 다른 판단을 하는 경우 (大判 2017도11582) ·········································································································· 123

63. 증언의 신빙성 판단이 제1심과 항소심이 다른 경우 (大判 2022도14645) ············ 125

64. 변호인의 피고인신문권 (大判 2020도10778) ··················································· 127

65. 항소기각의 방법 (大判 2019도17995) ···························································· 128

66. 변론종결 후 불리한 양형자료가 제출된 경우 법원의 조치 (大判 2021도5777) ····· 129

67. 형사소송법 제364조의2에서 ‘항소한 공동피고인’의 범위 (大判 2021도10579) ····· 131

[18] 상 고 ········································································································ 132

68. 양형부당과 상고이유 (大判 2020도8358) ························································ 132

69. 상고이유서를 제출해야 하는 자 (大決 2022도16568) ······································· 135

70. 비약적 상고에 항소로서의 효력의 인정여부 (大判 2021도17131, 2021전도170, 전원합의체 판결) ········································································································ 136

[19] 항 고 ········································································································ 140

71. 준항고 대상을 특정하기 어려운 경우 법원이 취해야 할 조치 (大決 2022모1566) ························································································································· 140

[20] 재 심 ········································································································ 142

72. 군사법원의 판결에 대한 재심사건의 관할 (大決 2019모3197) ··························· 142

73. 재심청구의 대상 (大決 2022모509) ································································ 143

74. 재심개시절차에서의 사실조사 (大決 2019모3554) ············································ 145

[21] 비상상고 ··································································································· 146

75. 비상상고의 대상 (大判 2019오1) ··································································· 146

76. 사실오인과 비상상고 (大判 2018오2) ····························································· 148

[22] 약식절차 ··································································································· 150

77. 정식재판청구와 정식재판청구권회복청구의 적법요건 (大決 2022모1872) ············ 150

[23] 즉결심판절차 ····························································································· 152

· 大判 2020도15194 ·························································································· 152

[24] 피해자 보호절차 ························································································ 153

78. 배상명령과 ‘다른 절차에 따른 손해배상청구’의 관계 (大判 2020도12279) ·········· 153

[25] 재판의 집행 ······························································································· 155

79. 추징판결 집행의 대상 (大決 2020모4058) ······················································ 155

[26] 형사보상과 명예회복 ·················································································· 156

80. 공소기각결정에 대한 형사보상청구기간 (大決 2020모627) ································ 156

참고판례 ··········································································································· 158

판례색인 ··········································································································· 161