- 머리말 -

2019년 로스쿨 3학년생이 되어 ‘기록형’ 공부를 본격적으로 시작하게 되면서 겪었던 막 막함과 어려움이 지금도 생생합니다. 

제가 로스쿨 재학생이었던 시절에도 그랬고, 지금도 그 렇고 여전히 기록형은 많은 수험생들에게 어렵고 생소한 유형에 해당하나, 

기록형 자체에 대 하여 마땅히 배워야 할 것들에 대한 교육이 제대로 이루어지지 못하고 있는 것이 현실입니다. 

그리하여 수험생들이 ‘형사기록형’을 처음 접하고, 또 계속해서 훈련해 나감에 있어서 제가 겪었던 시행착오를 최대한 겪지 않도록 하고, 

가능한 빠른 시간 내에 형사기록형이라는 유형 을 마스터할 수 있도록 돕고자 이「형사기록형 Master」를 집필하게 되었습니다. 

다른 과목의 기록형에 비해서, 형사기록형은 그 사례형과는 확연히 구분되는, 고유한 특색 을 가진 유형의 시험입니다. 

그렇기 때문에 형사기록형에서 다른 수험생들보다 우위를 점하 고, 고득점으로까지 나아가기 위해서는 

가장 먼저 형사기록형이라는 시험 자체가 갖는 고유한 특성 및 접근방식에 대한 별도의 학습과 근본적인 이해가 선행되어야 합니다. 

이와 같은 이유로「형사기록형 Master」는 Ⅰ. 형사기록형 자체에 대한 이해를 돕기 위한 기 본이론 부분, 

Ⅱ. 실제 형사기록에 대한 구체적 접근방식에 대한 부분, Ⅲ. 이와 같이 학습한 내용을 쟁점별로 집중적으로 연습할 수 있도록 만든 문제와 해설에 대한 부분 이렇게 세 개의 파트로 구성하 게 되었습니다.

이「형사기록형 Master」에는 실제로 제가 변호사시험을 준비하면서 겪었던 수많은 시 행착오와 지금까지의 오랜 연구를 통해 얻을 수 있었던 정직한 노하우들이 담겨져 있고, 

이에 더하여 변호사시험에 합격한 후 수년간 형사전문변호사로 활동하면서 직접 겪은 많은 경험과 실무적 지식들까지 최대한 녹여내어 

수험생 여러분들이 형사기록형을 조금이라도 더 쉽고 정 확하게 이해할 수 있도록 하고자 노력하였습니다. 

아무쪼록 이 교재가 수험생 여러분들이 형사기록형을 정복하고, 궁극적으로 변호사시험에 합격하게 되는 데 있어서 많은 도움이 되길 진심으로 희망합니다. 

2024년 2월 29일 변호사 이 상 준 

- 목 차 -

PART Ⅰ. 형사기록형 기본이론

Ⅰ. 형사기록형의 쟁점 체계

1. 피고인의 주장과 관련된 쟁점 ················································································· 8  

가. 【자백 + 보강증거】 쟁점

나. 【부인 + 사실인정】 쟁점

다. 【항변 + 타당성 검토】 쟁점

라. 일부부인 등을 통한 혼합쟁점

2. 직권판단사항 쟁점 ······························································································· 11

Ⅱ. 증거능력의 일반적 검토 절차

1. 피고인이 부동의 한 증거서류의 증거능력 검토 절차 ··················································· 12

2. 법정진술의 증거능력 검토 절차 ············································································ 20

Ⅲ. 신빙성 탄핵의 이해와 방법

1. 사실인정 쟁점에서의 신빙성 탄핵의 기능 및 중요성 ·················································· 22

2. 신빙성 탄핵 쟁점의 구체적 대응 방법 ····································································· 22

Ⅳ. 면소 쟁점 접근 절차

1. 확정판결 등 전과(기판력) 접근 절차 ······································································· 25

2. 공소시효 판단 절차 ···························································································· 26

Ⅴ. 공소기각 쟁점 접근 절차

1. 절대적 친고죄 접근 절차 ······················································································ 27

2. 친족 단서 접근 절차 ··························································································· 28

3. 합의서 등 피해자의 처벌불원의사 처리 절차 ···························································· 29

PART Ⅱ. 실제 형사기록의 구성과 구체적 검토요령

Ⅰ. 실제 형사사건의 흐름 및 형사기록의 생성 과정

1. 수사 단계 ·········································································································· 34

2. 공판 단계 ········································································································· 35

3. 형사기록의 구성 및 검토 순서 ·············································································· 36

Ⅱ. 개별 기록의 구체적 검토요령

1. 문제 및 양식 ······································································································ 37

2. 공판기록 표지 및 목록 ························································································ 39

3. 증거목록(증거서류 등) ························································································ 40

4. 증거목록(증인 등) ······························································································· 41

5. 피고인 및 변호인이 신청한 증거서류나 기타 증거 등 ················································· 43

6. 공소장 및 첨부서류 ···························································································· 44

7. 제1회 공판조서 ·································································································· 46

8. 제2회 및 차회 공판조서 ······················································································ 47

9. 증인신문조서 ···································································································· 49

10. 증거서류등(검사) 이하 「증거기록」 ······································································· 50

PART Ⅲ. 쟁점별 연습문제 및 해설

1. 사실인정 집중연습Ⅰ ··························································································· 55

2. 사실인정 집중연습Ⅱ ·························································································· 113

3. 면소&공소기각 집중연습Ⅰ ················································································· 163

4. 면소&공소기각 집중연습Ⅱ ················································································· 219