경찰승진시험대비 교재. 본서는 기존 사례집을 바탕으로, 통신비밀보호법에 대한 판례의 변화, 최근기출문제, 기타 개정 법령을 반영하고 있다. 또한 일부 순서를 변경하여 체포에서 압수·수색에 이르기까지 체계적이고 논리적으로 사례를 학습할 수 있도록 상당부분 순서를 변경하기도 하였다.

Case 1. 영장없는 신병확보 수단 및 체포·구속의 위법성을 다투기 위한 제도 ···1
Case 2. 범죄용의자 비디오촬영의 적법성 ·······································································7
Case 3. 압수·수색에 있어서의 영장주의의 예외 ·······················································13
Case 4. 체포현장 및 긴급체포된 자에 대한 압수·수색, 강제채뇨 등 ·················21
Case 5. 함정수사 ················································································································28
Case 6. 함정수사, 영장주의의 예외 ···············································································35
Case 7. 구속기간의 계산 ···································································································41
Case 8. 최면수사, 위법수집증거배제법칙 ·····································································46
Case 9. 불심검문과 소지품검사의 한계(Ⅰ) ·································································54
Case 10. 불심검문과 소지품검사의 한계(Ⅱ) ·································································60
Case 11. 불심검문과 신분증제시의무 ··············································································66
Case 12. 체포현장에서의 압수·수색, 변호인의 피의자신문참여권 등 ···················74
Case 13. 진술거부권과 변호인의 피의자신문참여권 ····················································82
Case 14. 고소전 수사, 소송조건으로서의 고발 ·····························································90
Case 15. 고소취소와 고소의 주관적 불가분의 원칙 ····················································94
Case 16. 불심검문의 절차와 항소심에서의 고소취소 ··················································99
Case 17. 소송조건과 수사, 고소의 추완, 고소의 포기 ··············································107
Case 18. 변호인의 피의자신문참여권 ·············································································114
Case 19. 미행 후 임의동행과 긴급체포 ·········································································119
Case 20. 임의동행의 적법성과 조서의 증거능력 ·························································127
Case 21. 영장없는 체포, 체포현장에서의 압수 ···························································133
Case 22. 별건구속, 여죄수사의 한계 등 ·······································································139
Case 23. 압수·수색의 절차 ····························································································144
Case 24. 전자기록의 압수 ································································································155
Case 25. 임의제출물 압수, 위법수집증거에 대한 증거동의 ·····································165
Case 26. 임의제출물의 압수 및 CCTV의 증거능력 ···················································173
Case 27. 임의제출물 압수와 피의사건과의 관련성 ·····················································181
Case 28. 변호인의 비닉권과 강제채뇨 ··········································································192
Case 29. 증인신문 및 증거보전의 청구 ········································································199
Case 30. 참고인진술서와 증거보전 ················································································205
Case 31. 압수·수색의 절차 및 진술번복조서 ····························································214
Case 32. 공소제기 후의 수사 ··························································································222
Case 33. 기망과 약속에 의한 자백의 증거능력 ··························································229
Case 34. 강요와 철야신문에 의한 자백 ········································································236
Case 35. 위수증과 독수과실의 예외이론, 진술거부권 ···············································243
Case 36. 위수증과 증거동의, 독수과실의 원칙 ··························································250
Case 37. 영장의 집행절차 및 전문법칙 종합 ······························································257
Case 38. 피의자신문을 위한 구인과 영상녹화물의 증거능력 ··································268
Case 39. 접견교통권을 침해하여 작성한 피신조서 ····················································275
Case 40. 피의자신문조서·진술서·조사자증언 ··························································283
Case 41. 범죄장소에서의 압수·수색과 조사자증언 ··················································289
Case 42. 실황조사서의 증거능력, 거짓말탐지기조사결과의 증거능력 ··················299
Case 43. 거짓말탐지기조사결과의 증거능력 ································································307
Case 44. 압수·수색의 범위와 정당하지 못한 증언거부 ··········································314
Case 45. 비진술증거, 재전문증거, CCTV영상의 증거능력 ······································325
Case 46. 피고인의 무단퇴정과 증거동의의 의제 ························································334
Case 47. 수첩, 진술녹음, 재전문증거의 증거능력 ·····················································339
Case 48. 공소제기 후의 수사, 전자기록의 증거능력 ·················································347
Case 49. 피의자신문조서의 증거능력과 진술녹음의 증거능력 ································355
Case 50. 접견교통권 침해와 피신조서의 증거능력, 위법수집증거와 탄핵증거 ··363
Case 51. 강제채혈과 실황조사서의 증거능력 ······························································370
Case 52. 강제채혈 및 자백의 보강법칙 ········································································378
Case 53. 자백의 보강법칙 ································································································387
Case 54. 전자기록의 압수와 조사자증언 ······································································393
Case 55. 특수매체기록의 증거능력 ················································································402
Case 56. 현장녹음, 비진술증거물의 대체물인 사진, 전문진술 ·······························409
Case 57. 사경이 긴급체포한 피의자에 대한 검사의 대면조사 등 ··························419
Case 58. 탄핵증거 및 법률의견서 ··················································································427
Case 59. 공동피고인의 법정진술의 증거능력 ······························································433
Case 60. 사진의 증거능력과 재전문증거 ······································································441

머리말

2024년도 경찰승진 주관식 형사소송법은 승진시험의 합격을 가르는 가장 중요한 요소로 기능하
였다. 최신판례를 바탕으로 출제가 이루어졌을 뿐만 아니라 수준높은 신작문제가 출제되어 시험
을 치르는 입장에서는 곤혹스럽지 않을 수 없는 상황이었다. 다만, 지난 해 너무 적은 숫자를
채점함에 대한 불만이 많았음을 감안하여 정밀채점의 숫자를 대폭 늘림으로써 사실상 잘 쓰지
않고서는 변별력이 없는 채점이 되었다는 아쉬움도 남았다.

2025년부터는 교수출제, 지방청별 채점으로 시험의 양상이 다소 변화하게 된다. 그런데 이는 작
은 변화가 아니다. 일단, 지방청별로 제한경쟁이 된다는 점 이외에 정밀채점이 가능해졌음을 의
미한다. 지금과 달리 채점기준표와 재량 채점기준에 의해 정밀한 채점이 이루어져, 실력에 따른
편차가 매우 클 수밖에 없는 상황이 되었다.

본서는 기존 사례집을 바탕으로, 통신비밀보호법에 대한 판례의 변화, 최근기출문제, 기타 개정
법령을 반영하고 있다. 또한 일부 순서를 변경하여 체포에서 압수·수색에 이르기까지 체계적이
고 논리적으로 사례를 학습할 수 있도록 상당부분 순서를 변경하기도 하였다.

다시 한번 강조하고자 하는 것은, 몇 년 전만 해도 학리에 맞든 맞지 않든 경찰승진쪽의 교재에
적힌 수준에서 답안을 작성하면 적당히 점수를 배점하곤 하였다. 이는 경찰의 법이 검사와 판
사, 학자의 법과 다른 초유의 사태를 야기하여 경찰에 대한 신뢰를 현저히 저하시키는 요인이기
도 하였다. 모름지기 법이란 하늘이 알고 땅이 알고 모든 국민이 공감하는 것이어야 한다.

필자는 이러한 추세를 감안하여, 대한민국 형사소송법의 최신판례등과 주요국가고시의 기출문제
를 반영하였고, 학리에 맞게 모든 답안들을 재정비하는 데에 노력을 경주하였다.

2. 본서의 특징

⑴ 체계적인 이해를 도모하기 위한 사례순서의 정비
본서는 내용뿐 아니라 서술순서에 많은 고려를 하였다. 서술 순서의 체계화를 통해, 사례1번부
터 차례로 학습을 이어가면 자연스럽게 형사소송 사례에 대한 이해도가 높아지고 답안의 작성
능력도 확립될 수 있도록 기획하였다.

⑵ 교수출제·정밀채점을 고려한 정확한 답안구성
교수출제의 경우, 일반고등고시와 마찬가지로 학리가 제대로 서술되어야 하고, 판례의 태도가
정확히 현출되어야 한다. 학리에도 맞지 않으나 경찰 수험서들에 비슷하게 서술되어 있는 내용
을 그대로 기재한다고 점수를 얻을 수 없다.

경찰의 실력향상과 국민에 대한 사법신뢰를 감안하여 변호사시험급 출제위원들도, 경찰승진시험
을 구성하고 있다는 점을 깊이 새겨야할 필요가 있다.

⑶ 60개의 사례를 통한 최신논점 총정리
무조건 사례를 늘리는 것이 능사가 아니다. 체계적인 사례연습서를 서술할 자신이 없으면 이것
저것 잡히는 대로 사례문제를 수록할 수밖에 없을 것이다. 필자는 오랜 기간 동안의 강의 경험
을 토대로 최소한의 사례를 통해 최신논점을 총정리하고 효율적으로 사례를 학습할 수 있도록
노력을 경주하였다.

3. 맺으며

필자는 오랜 시간 경찰승진과 관련하여 교재집필과 강의를 진행하였다. 외부에서 평가하는 경찰과
실제로 필자가 함께 하며 알게 된 경찰의 모습은 많은 차이가 존재한다. 형사소송실무의 최전선에
서도 틈틈이 자기계발을 위해 학습에 매진해온 독자들이야말로 본서가 나올 수 있는 원동력이자
필자의 스승이다. 그들에게 감사와 경의를 표현다.

본서의 출간에 이르는 전과정을 이끌어준 김백선실장, 홍민교팀장, 이종배선생님과 필자와 오랜기
간 함께 해준 배형석, 이종금 이사님, 세련된 표지를 만들어준 노채선님께 감사의 말을 전한다. 또
한 필자가 강의에만 전념하도록 새로운 기반을 마련해준 하우패스의 권형진대표님, 지호남원장님,
최준호본부장님에게도 감사의 말씀을 전하며 본서의 서문을 마무리하기로 한다.

2024.3.12.
필자 정주형