변호사시험 형사법 기록형 시험에 대해 어려움을 겪는 수험생이 의외로 많다. 시험을 준비하는 수험생들에게는 공포 그 자체이기도 하다. 형법의 경우에는 무죄 혹은 유죄인 근거에 대해 명확히 정리하여야 하고, 형사소송법의 경우 증거능력, 특히 전문법칙을 자유자재로 활용할 수 있어야 하기 때문이다.
항상 문제해결을 위해서는 문제의 원인부터 찾아야 한다. 어떤 부분이 대비되고 어떤 부분이 대비되지 않았는지를 철저히 분석하여야 한다. 일단, 형사법기록형은 공소사실자체만으로도 무죄를 구성하는 경우가 30점 정도는 출제되고 있고, 기타 형식재판은 판례사안을 벗어나 다양하게 변형되고 있다. 시험의 구성은 최근 변론요지서와 검토의견서를 중심으로 이루어지고 있으 나, 과거에 보석청구서가 출제되기도 하였다.
변론요지서는 기본적으로 무죄나 형식재판을 기초로 출제되고 있으나, 검토의견서는 무죄, 형식재판 이외에 유죄판결사안도 출제된다. 또한 최근에는 유죄판결에 대해 정상변론을 하는 문제도 새롭게 출제되었으나 정상참작감경보다는 법률상 가중·감경에 대한 서술이 강조된 문제 이다.
변호사시험에서의 형사법기록형 시험은 시험을 위한 기록으로서 실무기록과는 차이가 나고, 실무 상의 작성방식과 수험적인 작성방식은 다소간 다르며, 선택형, 사례형, 기록형을 체계적이고 통합적으로 이해하기 위해서는 실체법과 절차법 모두에 대한 체계적인 정리가 필요하다.
초기의 변호사시험은 형사소송법에 초점이 맞추어진 반면, 최근에는 형법에 무게가 기울어지는 측면이 없지 않다. 특히, 최신판례의 반영비율이 꾸준히 높아지고 있고, 무엇보다도 수험생들은 특별형법의 서술에 어려움을 겪고 있다.
필자는 최근 몇 년간의 형사법기록형강의를 통해, 무엇이 수험생에게 필요한 것인지를 깊이 느끼게 되어, 수험생의 니즈(Needs)에 최대한 충실하게 본서를 기획하였다.
본서의 핵심적인 특징은 다음과 같다.
첫째, 형사법기록형의 전반적인 구조를 분석하였다. 어떠한 서류에서 어떠한 논점을 발견해야 하는지를 철저히 분석하여 실전기록파트에서 해당논점을 찾아내어 서술하는 방식을 직접 구현 하고자 하였다.
둘째, 표준판례에 더하여 2025.5월말까지의 최신 형법판례를 공소사실과 검토의 방식으로 철저히 정리하여, 본서의 학습이 형법의 학습이자, 기록형에서 반드시 써야할 형법의 서술방식을 겸할 수 있도록 하였다.
셋째, 무엇보다 본서가 중점을 둔 것은 특별형법의 학습이다. 특히, 출제가 집중되는 특정범죄 가중처벌법상 도주차량, 위험운전치상이나 교통사고처리특례법 등을 체계적으로 정리하고 연습서술을 다양하게 수록하였다.
넷째, 증거파트의 서술은 이제 선택이 아니라 필수가 되었다. 증거뿐 아니라 공소시효나 형식재판 등의 내용에 대해 풍부하고 체계적인 해설이 필요함을 감안하여, 실전예제와 함께 형식재판을 철저히 정리하였고, 증거파트에서도 출제가 용이한 서류에 대한 증거능력판단을 최대한 컴팩트하게 정리하여 곧바로 답안지에 옮길 수 있도록 기획하였다.
필자가 다시금 변호사시험 강의를 진행하고, 다양한 아이디어를 생성할 수 있도록 곁에서 많은 조언을 아끼지 않은 윌비스한림법학원의 정문순수석과 본서의 편집, 표지작업에 힘써준 네오고 시뱅크의 김백선, 노채선님에게 감사의 말을 전한다.
본서로 수험을 준비하는 모든 수험생들이 좋은 성과를 거두기를 간절히 바라며 본서의 서문을 마무리 하기로 한다.
2025년 6월 15일
필자 정주형
제1장 형사법기록형
제1절 형사법기록형 시험의 개요 ······························································································· 1
제2절 무죄판결의 구조 ··································································································· 6
제2장 형식재판의 실제
제1절 면소판결 ··························································································································· 14
제2절 공소기각의 재판 ································································································· 41
제1항 공소기각결정 ··································································································· 41
제2항 공소기각판결 ·································································································· 43
제3장 실체판결
제1절 유죄판결 ·························································································································· 55
제2절 무죄판결 ············································································································· 57
제3절 실전서술례(무죄판결 중심) ··························································································· 59
제1항 형법총론 ········································································································ 59
제2항 형법각론 ········································································································ 75
제4절 특별형법 핵심정리 ······································································································· 145
제1항 부정수표단속법 ····························································································· 145
제2항 교통사고처리특례법 ······················································································· 152
제3항 특정범죄가중처벌법상 국고손실죄 ··································································· 158
제4항 특정범죄가중처벌법상 도주차량 ······································································ 159
제5항 특정범죄가중처벌법상 운전자폭행치상 ····························································· 166
제6항 특정범죄가중처벌법상 위험운전치상 ································································ 168
제7항 특정범죄가중처벌법상 어린이보호구역치사상 ···················································· 171
제8항 특정범죄가중처벌법상 상습특수절도 ································································ 172
제5절 형벌론 ···························································································································· 174
제4장 증거법 주요논점
제1절 위법수집증거배제법칙 ·································································································· 178
제2절 자백배제법칙 ················································································································ 192
제3절 진술의 임의성 ··············································································································· 197
제4절 전문법칙 ························································································································ 198
제5절 당사자의 증거동의 ······································································································ 254
제6절 자유심증주의 ················································································································ 259
제7절 탄핵증거 ························································································································ 273
제8절 자백의 보강법칙 ·········································································································· 277
제9절 공판조서의 배타적 증명력 ························································································· 285
제5편 실전기록의 분석
제1절 공판조서 ························································································································ 289
제2절 수사서류 ························································································································ 294
