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형사소송법 중요판례정리(2016)

형사소송법 중요판례정리(2016)

  • 신호진
  • |
  • 문형사
  • |
  • 2016-03-04 출간
  • |
  • 228페이지
  • |
  • 188 X 257 mm
  • |
  • ISBN 9788963994772
★★★★★ 평점(10/10) | 리뷰(1)
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♠ 형사소송법 단원별 출제비중 분석 ·········································································ⅶ

1. 검사의 긴급체포된 피의자 인치명령의 근거 ·········· ················································1
2. 고소·고발이 있기 전의 수사의 적법성 ····································································3
3. 함정수사의 허용범위 ···························································································5
4. 불심검문의 적법요건 ···························································································7
5. 법정대리인의 고소권의 성격 ·················································································9
6. 고소의 주관적 불가분의 원칙 ··············································································10
7. 상대적 친고죄와 고소의 주관적 불가분의 원칙 ······················································11
8. 반의사불벌죄와 고소불가분의 원칙 ······································································12
9. 항소심에서의 고소취소의 효력 ············································································14
10. 반의사불벌죄에서 처불불원의사표시의 가능시기 ··················································16
11. 공범과 고소의 취소 ·························································································17
12. 고소권의 포기 ·································································································18
13. 고발과 주관적 불가분의 원칙 ············································································19
14. 자수의 의미·····································································································20
15. 임의동행의 적법요건 ························································································21
16. 경찰관직무집행법상의 보호조치의 요건 ······························································23
17. 진술거부권의 고지 대상자 ················································································25
18. 범인식별의 방법 ······························································································27
19. 긴급체포의 요건 ······························································································29
20. 긴급체포 후 석방된 자에 대한 체포·구속 ····························································31
21. 현행범인체포와 죄증의 명백성 ··········································································32
22. 범죄·범인의 명백성의 판단시점 ·········································································33
23. 준현행범인 체포의 절차 ···················································································35
24. 구속영장의 효력범위 ························································································37
25. 이중구속 ········································································································38
26. 별건구속 ········································································································39
27. 사법경찰관의 피의자 구속기간 ··········································································40
28. 검사의 피의자 구속기간 ···················································································41
29. 접견교통권 제한의 근거 ···················································································42
30. 구속적부심사와 전격기소 ··················································································44
31. 정보저장매체에 대한 압수방법 ··········································································45
32. 전자정보에 대한 압수·수색절차의 적법요건 ·························································47
33. 압수·수색영장의 집행절차와 방법 ······································································51
34. 압수물에 대한 소유권·환부청구권의 포기 ····························································54
35. 압수장물의 피해자환부의 요건 ··········································································56
36. 피의자의 동의 없는 채혈의 적법요건 ·································································57
37. 진료목적으로 채취된 혈액을 압수한 경우 ···························································59
38. 체포와 압수·수색의 시간적·장소적 관련성 ···························································60
39. 체포현장에서의 압수 ························································································61
40. 범죄장소에서의 압수·수색의 요건 ······································································62
41. 범죄장소에서의 검증과 사후영장 ·······································································63
42. 긴급체포 후의 압수·수색·검증 ···········································································64
43. 임의제출물의 압수 ···························································································65
44. 영장 없는 비디오촬영의 허용요건 ······································································66
45. 공소제기 후 검사의 압수·수색·검증 ····································································67
46. 공소제기 후 검사의 피고인신문 ·········································································69
47. 공소제기 후 검사의 참고인조사 ·········································································70
48. 차별적 공소제기와 공소권 남용 여부 ·································································71
49. 누락사건의 추가기소와 공소권 남용 여부 ···························································73
50. 공소취소와 공소사실철회의 구별기준 ·································································75
51. 공소취소 후 재기소의 요건 ···············································································77
52. 재정신청 기각결정이 확정된 사건에 대한 소추의 제한 ·········································78
53. 재정신청과 기소강제절차 ··················································································79
54. 공소사실의 예비적·택일적 기재의 허용범위 ·························································81
55. 공소장일본주의 위반과 그 하자의 치유 ······························································82
56. 과형상 일죄의 일부에 대한 공소제기 ·································································84
57. 친고죄와 일부기소 ···························································································85
58. 공소장변경시 공소시효완성 여부의 판단기준 ·······················································87
59. 공범에 관한 공소시효의 특칙 ············································································88
60. 토지관할의 결정기준 ························································································89
61. 토지관할 병합심리신청의 관할법원 ····································································90
62. 현재지 관할법원에 대한 이송(제8조 제1항)의 의미 ··············································91
63. 성명모용에 대한 검사와 법원의 조치 ·································································93
64. 필요적 변호사건에서 변호인 없이 이루어진 소송행위의 효력 ································94
65. 변호인의 비밀유지의무와 진실의무 ····································································96
66. 변호인의 접견교통권의 침해에 대한 구제방법 ·····················································98
67. 변호인의 공소제기 전 수사서류 열람·등사권 ·······················································99
68. 미성년자를 대리한 법정대리인의 채혈동의의 유효성 ··········································101
69. 소송행위의 성립·불성립과 하자의 치유 ·····························································103
70. 보충송달의 유효요건 ······················································································105
71. 공소기각의 사유가 존재하는 경우에 무죄판결의 가능성 ······································106
72. 불고불리의 원칙 ····························································································107
73. 공소사실의 동일성의 판단기준 ·········································································109
74. 공소사실의 동일성의 판단기준 ·········································································110
75. 범죄의 수단·방법이 약간 다른 경우 공소장변경의 요부 ······································111
76. 축소사실의 인정과 공소장변경의 요부 ······························································112
77. 축소사실 인정의 의무성 여부 ··········································································113
78. 축소사실이 인정되는 경우의 법원의 조치···························································115
79. 포괄일죄와 추가기소 ······················································································117
80. 실체적 경합이 포괄일죄로 인정되는 경우···························································119
81. 과형상 일죄와 추가기소 ··················································································120
82. 항소심에서의 공소장변경 ················································································121
83. 석명권 불행사의 효과 ·····················································································122
84. 공동피고인의 증인적격 및 법정진술의 증거능력··················································124
85. 피고인의 구속기간 ·························································································125
86. 국민참여재판절차에서 재판장의 최초·최종설명의무 위반의 효과 ··························126
87. 증명의 정도····································································································129
88. 형법 제310조와 거증책임 ···············································································130
89. 검찰진술과 법정진술이 다른 경우와 자유심증주의 ·············································132
90. 영장주의에 위반하여 수집한 증거의 증거능력 ···················································134
91. 위법한 긴급체포 후 작성된 피의자신문조서의 증거능력 ·····································136
92. 사인이 위법하게 수집한 증거의 증거능력 ·························································137
93. 사인이 위법하게 수집한 증거의 증거능력 ·························································139
94. 위법수집증거배제법칙과 독수의 과실이론 및 그 제한 ·········································141
95. 독수의 과실이론의 제한 ··················································································143
96. 위법수집증거의 증거능력 ················································································145
97. 자백의 임의성 ·······························································································148
98. 증거보전절차에서 작성된 증인신문조서에 기재된 피고인의 진술···························150
99. 공범·공동피고인의 경우 검사 작성 피의자신문조서의 증거능력 ····························151
100. 공범·공동피고인의 경우 경찰 작성 피의자신문조서의 증거능력 ··························153
101. 참고인이 수사과정에서 작성한 진술서의 증거능력 ············································156
102. 제314조 및 제316조 제2항의 ‘원진술자가 진술할 수 없는 경우’ ·······················158
103. 증언거부권의 행사와 제314조 ·······································································161
104. 제316조의 ‘피고인’ 및 ‘피고인 아닌 자’의 의미 ···············································163
105. 조사자의 증언의 증거능력 ·············································································164
106. 피고인의 진술에 대한 재전문증거의 증거능력···················································166
107. 피고인 아닌 자의 진술에 대한 재전문증거의 증거능력 ······································167
108. 증거물을 촬영한 사진의 증거능력 ··································································169
109. 사본의 증거능력 ··························································································171
110. 현장사진의 증거능력 ····················································································172
111. 사인이 녹음한 진술녹음의 증거능력································································173
112. 녹음에 대한 증거조사방법··············································································177
113. 영상녹화물의 증거능력 ·················································································178
114. 변호인의 증거동의권의 성격···········································································180
115. 탄핵증거의 허용범위 ····················································································181
116. 탄핵증거의 조사방법 ····················································································183
117. 공범·공동피고인의 자백의 증거능력과 증명력 ··················································185
118. 자백에 대한 보강증거의 자격 ········································································187
119. 보강증거의 자격 ··························································································189
120. 공판조서의 배타적 증명력 ·············································································191
121. 유죄판결에 명시할 이유 ················································································192
122. 이중기소와 그 하자의 치유·············································································194
123. 면소판결에 대한 상소 ···················································································195
124. 포괄일죄의 일부에 대한 확정판결의 기판력의 범위 ··········································196
125. 상습범과 기판력의 범위 ················································································197
126. 과형상 일죄와 기판력의 범위 ········································································199
127. 기판력의 시간적 범위····················································································200
128. 포괄일죄의 일부에 대한 상소와 상소심의 심판범위 ··········································201
129. 경합범의 일부에 대한 상소와 상소심의 심판범위 ·············································202
130. 경합범이 상소심에서 일죄로 판명된 경우·························································204
131. 국선변호인 교체의 경우 항소이유서 제출기간 기산일 ·······································205
132. 제1심의 불출석재판이 위법한 경우 항소심의 조치 ···········································207
133. 제1심의 양형판단과 항소심의 양형판단이 다른 경우 ········································208
134. 소촉법상의 재심사유의 유추적용 여부 ····························································210
135. 증거의 신규성과 명백성의 판단기준 ·······························································212
136. 공범자에 대한 모순된 판결과 증거의 명백성 ···················································214
137. 경합범에 대한 재심 ······················································································215
138. 경합범과 재심의 범위 ···················································································217

도서소개

서문

형사소송법 ‘중요판례정리’에 대해서

본 자료는 형사소송법 전반에 걸쳐서 매우 기본적이고 중요한 판례( Leading Case )들을 정리한 것으로서 형사소송법 기본강의에 있어서 심화보충자료이다.

1. 사실관계의 상세한 소개로 사례형 문제 대비
판례는 언제나 특정되고 구체적인 사건을 전제로 한 것이다. 따라서 판례의 사실관계를 정확하게 파악하는 것은 판례를 이해하는 데 있어서 가장 기본이 된다. 본 자료에서 상세하게 소개된 사실관계를 정확하게 파악한다면 판례사안을 응용하거나 변형한 사례형 문제도 별로 어렵지 않게 해결할 수 있을 것이다.

2. 쟁점별 문제제기를 통한 판례내용의 정확한 이해
대법원의 판례는 하급심에서 제기되었던 쟁점들에 대한 최종적인 결론이다. 그러므로 판례를 정확하게 이해하기 위해서는 다투어졌던 쟁점들을 정확하게 파악할 필요가 있다. 그래서 본 자료에서는 판결요지를 평면적으로 나열하지 않고 쟁점별로 나누어 먼저 문제를 제기 한 후 그에 대한 판례의 입장을 알 수 있도록 함으로써 판례를 보다 깊이 이해할 수 있도록 하였다.

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