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[머 리 말]
‘OX로 정리하는 형사소송법요론’에 대해서
“OX로 정리하는 형사소송법요론”은 편저자의 “형사소송법요론”을 단기간에 효율적으로 정리할 수 있도록 만들어진 교재이다.
본 교재는 다른 시험에 비하여 수준이 높은 변호사시험, 검찰승진·전직시험, 검찰채용시험 등에서 최종정리용 교재로 이용될 수 있을 것이다. 이하에서는 “OX로 정리하는 형사소송법요론”의 내용과 이용방법에 대해서 설명하고자 한다.
1. 이론을 효율적으로 정리하는 방법
형사소송법을 처음 공부하는 경우에는 일단 기본강의를 수강하면서 기본서를 빠짐없이 정독해야 한다. 이 때에는 출제경향이라는 것을 생각할 필요 없이 오직 형사소송법이 어떤 과목인지 그 내용을 철저하게 “이해”하는 데 중점을 두고 공부를 해야 한다. 그러나 어느 정도 공부가 된 다음에는 출제경향을 고려해서 보다 “중요한 부분”에 집중을 할 필요가 있다. 여기서 어떤 부분이 출제가능성이 높은 중요부분인지가 문제되는데, 이에 대한 가장 정확한 답은 “기출문제”에서 찾을 수 있다. 본서는 2012년 이후의 변호사시험 기출문제와 법전협 모의고사문제, 검찰관련시험문제, 경찰 등 국가고시문제를 기초로 하여 여기서 출제된 이론문제를 지문별로 분해하여 형사소송법요론의 목차순서 대로 재배열을 하였다. 이 정도의 범위에서 출제되었던 이론이라면 앞으로도 출제될 가능성이 매우 높고, 반대로 이 정도의 범위에서 출제되지 않은 이론이라면 앞으로도 출제될 가능성은 매우 낮을 것이다 . 그러므로 기본강의 수강과 기본서 정독을 통해서 형사소송법 전반에 대해서 이해를 하였다면, 그 다음부터는 정말로 출제가능성이 높은 중요부분에 집중하는 것이 필요한데, 본서에 수록된 내용들이 바로 집중해야 할 중요부분이 된다. 본서는 비록 OX문제집의 형태를 취했지만, 각 지문들은 형사소송법요론의 체계적 순서에 따라서 질서정연하게 배열되어 있기 때문에 실은 형사소송법요론의 내용 중에서 정말 출제가능성이 높은 중요부분을 정리해 놓은 SUB-NOTE라고도 할 수 있다.
2. 판례를 효율적으로 정리하는 방법
최근에는 어떤 시험이든지 판례의 비중이 매우 높은데, 방대한 분량의 판례를 어떻게 효율적으로 정리할 것인지가 문제된다. 본서는 이에 대한 대책도 역시 “기출문제”에서 찾았다. 그래서 최근 5년간의 변호사시험 및 법전협 모의고사에서 출제되었던 판례와 경찰, 검찰 등 다른 국가고시 최근 3년간의 기출문제에서 출제되었던 판례를 빠짐없이 골라내어 역시 형사소송법요론의 체계적 순서에 따라서 재배열을 하였다. 이론과 달리 판례는 최근 5년간의 기출판례로 그 범위를 좁힌 이유는 너무 범위를 넓힐 경우에는 출제가능성이 낮은 오래된 판례들이 많이 반영될 위험성이 있기 때문이다. 어쨌든 이 정도의 범위에서 출제되었던 판례는 앞으로도 출제가능성이 클 것이고, 반대로 이 정도의 범위에서 출제되지 않았던 판례는 앞으로도 출제가능성이 낮을 것이다.
그런데 기출판례를 중시할 경우에는 간과되기 쉬운 사각지대가 있음을 주의할 필요가 있다. 그것은 바로 “최신판례”들이다. 최신판례일수록 출제가능성이 매우 높은데, 이러한 최신판례들은 나온 지 얼마 안 되어서 아직 문제로 출제될 기회가 별로 없었기 때문에 기출문제에 충분히 반영되어 있지 않다. 이에 본서에서는 “기본서 정리” 다음에 “최신 3년간의 판례”를 별도로 정리하여 최신판례의 높은 출제가능성에 완벽하게 대비 할 수 있도록 하였다. 최신판례는 본서에 수록될 수 없는 시험일 직전까지의 것도 공부해야 하는데, 편저자는 7월 경 2016년 1월부터 6월까지의 최신판례를 정리한 자료와 그에 대한 해설강의를 계획하고 있고, 그 이후부터의 판례도 지속적으로 업데이트를 할 예정이니 편저자의 홈페이지를 참고해서 중요한 최신판례에 대한 정보를 놓치지 않았으면 한다.
3. 중요부분에 집중하는 것이 고득점의 비결
시험공부를 할 때 “빠짐없이” 공부하는 것은 당연히 필요하며, 특히 초보자의 경우에는 전체적인 내용의 이해를 위해서도 이 과정은 필수적인 것이다. 그러나 어느 정도 공부가 된 후 시험이 가까운 시점에서는 빠짐없이 공부하는 것보다는 “중요한 부분에 집중”하는 것이 훨씬 더 효율적이다. 편저자의 “형사소송법요론”과 “기본강의”가 전자를 위한 것이라면, 본 “OX로 정리하는 형사소송법요론”과 이에 대한 “강의”는 후자에 중점을 둔 것이다. 본서를 읽을 때에는 항상 형사소송법요론을 옆에 두고 본서의 해설만으로는 이해가 안 되거나 좀 더 기억을 되살릴 부분이 있을 경우에는 항상 형사소송법요론을 펼쳐서 해당 부분을 발췌해서 읽어야 한다 . 이렇게 본서에 담긴 지문 하나하나를 철저하게 소화하고, 다시 수차례 반복한다면 도리어 형사소송법요론에 대한 이해도도 더욱 높아질 것이고, 의외의 문제에 대한 대처능력도 크게 향상될 것이다. (※ 지문 뒤의 ★표는 최근 5년간에 출제된 횟수를 의미한다. 중요도 판단에 기준이 될 것이다.)
본서의 출간을 위해서 작년부터 많은 시간과 노력을 들였는데, 본서의 특징과 취지를 잘 이해하고, 효율적인 활용을 통해서 합격의 영광을 누리기를 간절히 기원한다.
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·1. 형사소송법의 일반이론 ··················································································· 3
·2. 수사의 기본개념 ··························································································· 10
·3. 수사의 개시 ································································································· 17
·4. 수사의 방법 ································································································· 30
·5. 대인적 강제수사 ··························································································· 39
·6. 대물적 강제수사 ··························································································· 61
·7. 수사상의 증거보전 ························································································ 96
·8. 수사의 종결 ······························································································· 100
·9. 공소와 공소권이론 ······················································································ 106
·10. 공소제기의 기본원칙 ················································································· 109
·11. 공소제기의 방식 ······················································································· 119
·12. 공소제기의 효과 ······················································································· 130
·13. 공소시효 ·································································································· 133
·14. 법 원 ······································································································· 145
·15. 검 사 ······································································································· 159
·16. 피고인 ······································································································ 162
·17. 변호인 ······································································································ 170
·18. 소송행위 ·································································································· 184
·19. 소송조건 ·································································································· 192
·20. 공판절차의 기본원칙 ·················································································· 195
·21. 공판심리의 범위 ························································································ 198
·22. 공판준비절차 ···························································································· 219
·23. 공판정에서의 심리 ····················································································· 227
·24. 증거조사와 강제처분 ·················································································· 231
·25. 공판절차의 특칙 ························································································ 250
·26. 증명의 기본원칙 ························································································ 266
·27. 위법수집증거배제법칙 ················································································ 277
·28. 자백배제법칙 ···························································································· 293
·29. 전문법칙 ·································································································· 297
·30. 당사자의 동의와 증거능력 ·········································································· 353
·31. 탄핵증거 ·································································································· 360
·32. 자백보강법칙 ···························································································· 363
·33. 공판조서의 증명력 ···················································································· 369
·34. 재판의 기본개념 ······················································································· 371
·35. 종국재판 ·································································································· 373
·36. 재판의 확정과 효력 ··················································································· 382
·37. 소송비용 ·································································································· 397
·38. 상소의 일반이론 ························································································ 399
·39. 항 소 ······································································································· 422
·40. 상 고 ······································································································· 433
·41. 항 고 ······································································································· 436
·42. 재 심 ······································································································· 440
·43. 비상상고 ··································································································· 455
·44. 약식절차 ·································································································· 457
·45. 즉결심판절차 ···························································································· 464
·46. 소년에 대한 특별절차 ················································································· 468
·47. 피해자 보호절차 ························································································ 470
·48. 재판의 집행 ······························································································ 473
·49. 형사보상과 명예회복 ·················································································· 475
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