2022 형사소송법 1년간 최신판례정리 문형사/신호진

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형 사 소 송 법

[1] 수사의 개시 ···································································································· 3
1. 부재자 재산관리인의 고소권 (大判 2021도2488) ··················································· 3
2. 반의사불벌죄에서 처벌불원의사표시의 시기 (大判 2021도10010) ···························· 5
[2] 대물적 강제수사 ······························································································ 7
3. 압수·수색절차의 적법성 (大決 2019모2584) ························································· 7
4. 정보저장매체에 대한 압수의 절차와 방법 (大判 2022도2960) ······························· 10
5. 전자정보에 대한 압수의 방법 (大決 2021모1586) ··············································· 12
6. 압수·수색절차의 적법성 (大決 2016모587) ························································· 14
7. 원격지 서버 저장정보에 대한 압수·수색의 적법성 (大決 2020모735) ····················· 16
8. 임의제출된 정보저장매체에 대한 압수의 범위 (大判 2016도348, 전원합의체 판결) ·· 18
9. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2019도4938) ············· 23
10. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2019도7342) ··········· 25
11. 임의제출된 정보저장매체에 대한 압수의 범위 및 절차 (大判 2021도11170) ········· 29
12. 통신비밀보호법상의 ‘공개되지 아니한 타인간의 대화’의 의미 (大判 2020도1007) ·· 34
[3] 공소와 공소권이론 ························································································· 36
13. 공소권남용 (大判 2016도14772) ····································································· 36
[4] 공소제기의 방식 ···························································································· 37
14. 공소제기의 방식과 하자의 치유 (大判 2019도17150) ········································· 37
15. 공소제기의 방식 (大判 2019도16259) ······························································ 38
16. 공소사실의 특정 (大判 2021도11454) ······························································ 39
[5] 공소시효 ······································································································· 40
17. 공소시효의 기산점 (大判 2017도18693) ··························································· 40
18. 공소시효의 연장과 소급효 (大判 2020도1153) ·················································· 41
19. 공소제기 후 형사처분을 면할 목적으로 국외에 있는 경우 (大判 2020도13547) ····· 42
[6] 소송행위 ······································································································· 43
20. 재판확정기록의 열람·등사와 정보공개법에 의한 공개청구의 관계 (大決 2021모3175) · 43
[7] 증거조사와 강제처분 ······················································································ 45
21. 증인신문시 반대신문의 보장 (大判 2016도17054) ············································· 45
[8] 증거법의 기본개념 ························································································· 47
22. 간접증거에 의한 증명의 정도 (大判 2022도2236) ·············································· 47
[9] 증명의 기본원칙 ···························································································· 49
23. 증명과 증명력 판단 (大判 2018도19472, 2018전도126) ···································· 49
24. 소추조건의 존재에 대한 증명방법 (大判 2021도404) ········································· 50
25. 주관적 구성요건요소의 증명방법 (大判 2018도18045) ······································· 51
26. ‘위드마크 공식’의 적용을 위한 증명의 방법 (大判 2021도14074) ························ 52
27. 성폭력 피해자의 진술의 신빙성 판단방법 (大判 2021도3451) ····························· 54
28. 성폭력 피해자의 진술의 증명력 판단방법 등 (大判 2020도11185) ······················· 56
[10] 위법수집증거배제법칙 ··················································································· 58
29. 외국인에 대한 체포·구속시 영사통보권을 고지하지 않은 경우 (大判 2021도17103) · 58
[11] 전문법칙 ····································································································· 60
30. 진술조서의 실질적 진정성립을 증명할 수 있는 영상녹화물의 의미 (大判 2022도364) · 60
31. 「성폭력처벌법」상 영상녹화물의 증거능력 (大判 2021도14530, 2021전도143) ······ 64
[12] 재판의 기본개념 ·························································································· 66
32. 재판장의 판결 변경 선고의 적법성 (大判 2017도3884) ······································ 66
[13] 상소의 일반이론 ·························································································· 68
33. 공시송달의 적법요건과 상소권회복청구의 적법 여부 (大決 2022모439) ················ 68
34. 일부상소에 대한 상소심의 파기 범위 (大判 2021도13108) ································· 70
[14] 항 소 ········································································································· 72
35. 항소심에서 증인 진술의 신빙성에 대해서 제1심과 다른 판단을 하는 경우 (大判 2017도11582) ············································································································ 72
36. 형사소송법 제364조의2에서 ‘항소한 공동피고인’의 범위 (大判 2021도10579) ······ 74
[15] 상 고 ········································································································· 75
37. 양형부당과 상고이유 (大判 2021도16719) ························································ 75
38. 비약적 상고에 항소로서의 효력의 인정여부 (大判 2021도17131, 2021전도170, 전원합의체 판결) ·········································································································· 76
[16] 재 심 ········································································································· 80
39. 재심청구의 대상 (大決 2022모509) ·································································· 80
[17] 피해자 보호절차 ·························································································· 82
40. 배상명령과 ‘다른 절차에 따른 손해배상청구’의 관계 (大判 2020도12279) ············ 82