국문요약 ·············································································1
❘제1장❘연구의 개요 ··························································3
제1절 연구의 목적 ························································································5
제2절 연구의 필요성 ·····················································································6
제3절 연구의 범위와 방법 ············································································8
❘제2장❘검사의 효과적 공판수행 요인 ····························11
제1절 공판절차 개관 ···················································································13
1. 공판 절차의 의의 일반 ···················································································13
2. 공판중심주의에 따른 검사의 부담 ·································································14
제2절 형사소송의 목적 ···············································································15
제3절 형사소송의 목적 달성을 위한 대전제 -
수사과정에서의 충실한 논증 ····························································16
제4절 형사소송의 목적 달성을 위한 효율적인 공판수행의 핵심 ···············17
1. 검사의 역량 강화를 위한 제도적 구현 ·························································17
2. 공판중심주의 실현 ·························································································18
3. 법정에서의 수사과정 현출 ··············································································19
4. 수사와 공판활동 연계방안 ··············································································21
❘제3장❘수사과정에서의 검사의 논증기법 ·······················23
제1절 검사의 논증과정에 대한 논리학적 접근의 필요성 ···························25
제2절 검사의 수사 논증과 법관의 의사결정과의 차이 ·······························26
1. 검사의 인식관심과 법관의 인식관심의 차이 ················································26
2. 법관 논증의 방식 ····························································································30
3. 법관의 의사결정에서 사실인정의 의의 ··························································32
4. 사실인정의 이론과 우리나라에서의 성과 ······················································36
제3절 검사의 논증과정에 대한 논리학적 분석 ···········································40
1. 수사에 있어 검사의 논증과정 ········································································40
2. 검사의 논증을 위한 철학적 개념과 방법 ······················································44
3. 가추 및 역행추론에 기반한 검사의 논증과정 ···············································47
4. 검사 논증에 대한 합리적 의심이 없을 정도의 확신 사례 ··························49
제4절 검사의 수사논증과 추론의 독자성 검토 ···········································51
1. 검사의 수사논증의 목적 ·················································································51
2. 실체적 진실 발견을 위한 수사기법의 사례: PEACE 기법 ··························52
3. 수사검사의 추론의 의의와 실천성 ·································································56
❘제4장❘공판중심주의와 법관 심증형성의 통제 ··············59
제1절 공판중심주의 하에서 법관 심증형성 통제의 필요성 ························61
1. 공판중심주의의 도입 ·······················································································61
2. 공판중심주의와 국민참여제 도입의 현실 ······················································62
3. 검사의 입증활동 ······························································································63
제2절 법관 심증형성의 오류요인 ································································64
1. 법관의 의사결정에 영향을 미치는 요소 ························································64
2. 법심리학의 활용 ······························································································67
3. 사법적 요소 ·····································································································73
제3절 법관의 심증형성 통제를 위해 필요한 요소 ······································77
1. 수사검사의 추론 과정에 대한 충분한 이해 ··················································77
2. 법적인 요소 ·····································································································78
3. 사회과학적인 요소- 과학적 증거와 전문가 증언의 활용 ····························81
❘제5장❘공판과정에서 검사의 효과적 증인신문 기법 ······89
제1절 증인신문의 중요성 ············································································91
1. 증인신문의 개념과 의의 ·················································································91
2. 민사소송에서의 증인신문과의 차이점 ····························································92
제2절 증인신문의 목표 ···············································································95
1. 판사의 사건 이해와 유죄 심증 형성 ·····························································95
2. 검사실에서의 참고인 조사와 법정에서의 증인 신문의 차이 ·······················96
제3절 효과적 신문방식의 모델 ···································································97
1. 개요 ··················································································································97
2. 검사의 증인 사전 면담의 문제 ······································································98
3. 형사소송법 및 형사소송규칙상 증인신문 방법에 관한 규정 ·····················104
4. 검찰 측 증인의 효과적 신문 방식 ······························································107
5. 피고인 측 증인의 효과적 신문 방식 ···························································120
5. 증인신문시 적극적인 이의신청 ····································································126
제4절 진술증거의 평가 ·············································································131
1. 진술증거의 평가 기준 ···················································································131
2. 판례의 입장 ···································································································133
❘제6장❘효과적인 구두변론 기법 ···································139
제1절 구두변론의 의의 ·············································································141
1. 구두변론의 개념 ····························································································141
2. 구두변론 강화의 필요성 ···············································································142
제2절 구두변론의 기법 ·············································································143
1. 구두변론의 핵심 - 모두진술과 최종의견 진술 ··········································143
2. 구두변론의 기초 요령 ···················································································144
3. 모두진술의 구성 ····························································································146
4. 최종의견 진술의 구성 ···················································································151
❘제7장❘양형심리와 검사의 논증 기법 ··························157
제1절 양형에 대한 검사와 법관의 관점 차이 ··········································159
제2절 양형심리의 중요성 및 실무상 양형심리의 문제점 ·························160
1. 법원 양형기준의 시행 ···················································································160
2. 양형심리의 중요성 ························································································161
3. 현재 실무상 양형심리의 문제점 ··································································162
제3절 법원 양형조사관 제도의 시행과 양형심리에 있어 검사의 역할
정립 ································································································164
1. 법원 양형조사관 제도의 시행 ······································································164
2. 양형심리에 있어 검사의 역할 정립 ·····························································164
제4절 효과적인 양형자료 수집 ·································································165
1. 개요 ················································································································165
2. 주요 가중 양형인자 ······················································································166
3. 피해자 진술의 충분한 확보 ··········································································166
4. 범죄심리학 분야 등 전문가 집단의 적극적 활용 ·······································168
5. 피의자에 대한 영상 녹화 조사의 적극적 활용 ··········································168
6. 검찰 양형조사관제 도입의 필요성 ·······························································169
제5절 양형자료의 효과적 법정 현출 ························································170
1. 법정에서의 적극적 양형자료 현출의 필요성 ··············································170
2. 현재 실무 관행상 양형자료 현출의 한계 ····················································171
3. 적극적인 피해자 증인신문 ···········································································171
4. 양형자료의 구분 제출 ···················································································172
5. 피고인신문 강화 ····························································································173
6. 검사 최종논고 절차의 적극적 활용 ·····························································174
❘제8장❘결론: 요약 및 함의 ··········································175
참고문헌 ···········································································183
Abstract ··········································································193

수사과정에서 검사의 고유한 논증과 추론은 공판중심주의와 국민참여재판 도입의현실에서 새로운 도전에 직면하게 된다. 즉 법원의 공판중심주의 강화 방침에 따라법관이 법정에서의 피고인 또는 변호인의 주장에 경도되어 선입견을 가진 나머지검사의 논증 과정을 제대로 이해하지 못한 채 판결을 내리게 될 가능성을 배제할수 없다는 점이다. 또한 국민참여재판에서 배심원들은 증거기록 전체를 검토하지 못하고 오로지 법정에 현출되는 증거들을 토대로 판단을 내리게 되기도 한다. 여기서법관(또는 배심원)의 심증에 오류를 형성하는 중요한 요인은 다름 아닌 법적인 사건의
불확실성(uncertainty)에 있다. 여기에는 법관 개인의 편견, 수사과정에서 검사 논증의 미흡, 검사의 전문성 확보와 업무과중이라는 사법적 요소도 존재하지만 법률외적요인들도 상당히 존재한다. 그리고 이와 같은 법관(또는 배심원)의 심증 형성을 통제하기 위해서는 증거기록의 효과적인 제시와 형사소송법상 증거조사기법의 충분한 활용,그리고 구두변론 강화의 전략을 이용하는 것이 필요하다 할 것이다.