국문요약 ·············································································1
❘제1장❘서론 ···································································13
제1절 연구의 배경과 목적 ··········································································15
제2절 연구내용 및 연구방법, 연구범위 ······················································17
1. 연구내용 ········································································································17
가. 형사절차상 피해자보호제도의 규범 및 현황 연구 ······································17
나. 형사절차상 피해자의 참여보장을 위한 구체적인 방안 제시 ·····················18
2. 연구방법 ········································································································19
가. 문헌연구 ··········································································································19
나. 직접관찰 ········································································································19
다. 전문가 의견조사 ·····························································································22
3. 연구범위 ········································································································23
❘제2장❘범죄피해자의 참여에 관한 기초적 고찰 또는
배경적 논의 ·······················································25
제1절 형사절차상 피해자의 참여 확대 필요성 ···········································27
제2절 형사절차상 피해자참여 관련 입법의 변화 ·······································28
1. 입법변화에 나타난 범죄피해자의 지위 ·······················································28
2. 범죄피해자는 형사절차의 주체인가 당사자인가 ········································29
3. 입법의 이념으로서의 회복적 사법 ······························································30
제3절 형사절차 이념으로서의 범죄피해자의 참여(권리) 보장 ····················31

제4절 서설적 개념정리 : 피해자보호･지원, 피해자참가와 피해자참여 ······32
1. 범죄피해자보호･지원 ····················································································32
2. 범죄피해자보호･지원 그리고 형사절차상 피해자참가 또는 참여 ············33
가. 범죄피해자보호･지원과 피해자참가･참여 ·····················································33
나. 범죄피해자보호･지원과 피해자참가 또는 참여, 그리고 ‘피해자권리’ ·······34
3. ‘형사절차’상 범죄피해자의 참여 ·································································36
4. 피해자참가제도 또는 피해자참여제도? ·······················································37
❘제3장❘형사절차상 피해자참여 보장 제도 및 현황 ······39
제1절 수사절차상 피해자의 참여보장 제도 및 현황 ··································41
1. 수사단계에서의 피해자 참여보장 필요성과 법규정비 ·······························41
가. 수사단계에서의 피해자 참여보장 필요성 ·····················································41
나. 제도정비 ··········································································································42
2. 수사단계에서의 피해자 참여를 위한 구체적인 제도 ·································43
가. 고소･고발권 ····································································································43
나. 정보권–피해자에 대한 통지 ···········································································44
다. 신뢰관계자의 동석 ·························································································47
라. 피해자 권리고지제도 ·····················································································49
마. 피해자의 변호사선임권 ··················································································51
3. 수사단계에서의 실무변화 ···········································································53
가. 성폭력처벌특례법상 피해자보호 담당기관 개요 ··········································53
나. 진술녹화과정에서의 피해자 참여 ·································································58
4. 검토 ·············································································································59
제2절 공판절차상 피해자의 참여보장 제도 및 현황 ··································61
1. 범죄피해자의 재판절차 진술권 ···································································61
가. 헌법적 형사소송법의 실현 ············································································61
나. 의견진술의 범위 ·····························································································62
다. 의견진술의 방법 및 절차 ··············································································64
라. 의견진술의 제한 ·····························································································64
마. 피해자진술제도의 문제점 및 한계 ·······························································65
바. 범죄피해자참여제도와 피해자 의견진술제도의 관계 ··································66
2. 비디오등 중계장치등에 의한 증인신문(형사소송법 제165조의2) ············69
3. 피해자 진술 비공개 ······················································································70
4. 피해자 등의 기록열람･등사 ·········································································71
가. 피해자 등의 기록열람･등사의 의의와 절차 ·················································71
나. 열람･등사의 주체 ···························································································72
다. 현행법의 특징 및 제한사유 구체화 ······························································72
5. 피해자 등에 대한 절차진행 등 통보 ··························································73
6. 피해자국선변호사제도 ··················································································73
7. 증인지원관 제도 ···························································································74
8. 공판절차에서의 피해자참여 현황 ································································75
가. 연구방법 및 대상 ·························································································75
나. 공판참관일지 ··································································································77
다. 공판참관결과 ··································································································80
라. 평가 ·················································································································87
제3절 검토 ··································································································88
❘제4장❘범죄피해자의 주체적 지위보장과 변호인의 조력을
받을 권리, 그리고 범죄피해자 참가제도 ··········91
제1절 범죄피해자의 주체적 지위보장과 변호인의 조력을 받을 권리 ········93
1. 범죄피해자의 변호인의 조력을 받을 권리보장 필요성 ·····························93
가. 피해자변호사제도의 필요성 ···········································································93
나. 입법의 변화 ····································································································95
다. 성폭력처벌특례법상의 피해자변호사 제도 ·················································96
라. 피해자국선변호사제도의 성과 ···································································102
제2절 범죄피해자참가제도 실현으로서의 변호인의 조력을 받을 권리 ·····103
1. 범죄피해자의 주체적 지위 보장으로서 적극적 참여보장 ·······················103
2. 피해자변호사 선임권의 의의 ···································································104
3. 피해자변호사 선임권의 내용 ·····································································105
가. 변호인선임권자로서 범죄피해자 규정 ························································105
나. 국선변호사선정권 고지의무 명문화 ····························································106
다. 피해자조사시 피해자변호사의 참여권 ························································106
제3절 소결 ································································································107
❘제5장❘피해자참가제도에 관한 비교법적 검토 ···········109
제1절 우리나라의 피해자참가제도 입법안 ················································111
1. 개관 ·············································································································111
2. 피해자참가제도 도입법안의 주요 내용 ····················································113
가. 피해자참가의 요건 ·······················································································113
다. 피해자참가의 절차 ·······················································································116
라. 피해자측참가인의 권리 ················································································118
3. 2011년 정부안과 2014년 강창길 의원안의 비교 ··································123
제2절 독일의 부대공소제도 ······································································124
1. 개관 ·············································································································124
2. 부대공소를 통한 공판참가의 요건 ····························································126
가. 대상범죄 및 부대공소권자 ··········································································126
나. 부대공소권 존부의 입증 여부 ·····································································130
다. 공판참가의 시기 ···························································································131
3. 부대공소를 통한 공판참가의 절차 ····························································131
가. 공판참가의 의사표시 ···················································································131
나. 공판참가 의사표시의 효력발생 ···································································132
다. 공판참가 의사표시에 대한 법원의 결정 ····················································133
라. 법원의 허가결정에 대한 불복 ·····································································137
마. 부대공소의 소멸 ···························································································138
4. 공소참가인의 권리 ·····················································································139
가. 공판기일 출석권 ···························································································139
나. 질문권 ···········································································································140
다. 증거신청권 ····································································································141
라. 이의제기권 ··································································································141
마. 기피권 ···········································································································141
바. 의견진술권 및 양형에 관한 의견진술권의 인정 여부 ······························142
사. 상소권 ···········································································································143
5. 공소참가인을 위한 피해자변호사제도 ······················································144
가. 신청에 기한 피해자국선변호사의 의무적 선임 ·········································144
나. 소송비용구조 ································································································145
6. 부대공소제도의 운영실태 ··········································································146
제3절 일본의 피해자참가제도 ···································································147
1. 개관 ·············································································································147
2. 피해자참가의 요건 ·····················································································149
가. 대상범죄 ·······································································································150
나. 참가권자의 범위 ···························································································152
다. 공판참가의 시기 ···························································································152
3. 피해자참가의 절차 ·····················································································152
가. 참가신청과 그 방식 ·····················································································152
나. 참가신청의 시기 ···························································································153
다. 검사의 경유 ··································································································153
라. 참가신청에 대한 법원의 결정 ·····································································154
4. 피해자참가인의 권리 ··················································································156
가. 공판기일 출석권 ···························································································156
나. 검사의 권한행사에 대한 의견진술권 및 검사의 설명의무 ·······················158
다. 증인신문권 ····································································································159
라. 질문권 ···········································································································162
마. 변론으로서의 의견진술권 ············································································163
5. 피해자참가인을 위한 국선변호사제도 ······················································166
가. 피해자참가변호사의 선정청구 ·····································································167
나. 자력기준 ·······································································································168
다. 피해자참가변호사의 선정 ············································································168
라. 기타 ···············································································································169
6. 피해자참가제도의 운영실태 ·······································································169
가. 피해자참가제도 운영통계 ············································································169
나. 피해자참가변호사제도 운영통계 ·································································170
제4절 미국의 피해자의견진술제도 ····························································171
1. 개관 ·············································································································171
2. 피해자의견진술권의 법적 근거 및 행사요건 ···········································172
3. 피해자의견진술권자의 범위 ·······································································173
4. 피해자의견진술권 행사의 시기 및 방법 ··················································173
5. 절차참가신청에 대한 법원의 결정 ····························································174
6. 피해자의견진술권의 내용 ··········································································175
7. 피해자의견진술제도에 대한 평가 ······························································175
제5절 비교법적 검토 ················································································176
1. 공판절차상 피해자참가인의 지위 ······························································177
2. 대상범죄 및 참가권자 ················································································178
3. 공판참가의 절차 ·························································································179
가. 공판참가의 신청과 방식 ··············································································179
나. 공판참가의 신청 시기 ·················································································180
다. 공판참가의 효력발생시기 ············································································181
라. 검사의 경유 여부 ·························································································181
마. 참가신청에 대한 법원의 결정 ·····································································182
5. 피해자참가인의 권리 ··················································································182
6. 피해자참가인을 위한 국선변호사제도 ······················································183
7. 요약 ·············································································································184
❘제6장❘피해자참가제도의 도입 방안 ···························187
제1절 범죄피해자참여제도에 대한 전문가 의견조사 ································190
1. 조사목적 및 설문구성 ················································································190
가. 조사목적 ·······································································································190
나. 조사방법 및 설문구성 ·················································································190
2. 조사연구의 대상 ·························································································192
3. 범죄피해자참여제도에 대한 전문가 의견 ·················································193
가. 피해자변호사제도의 도입에 대한 의견 ······················································193
나. 대상범죄의 범위에 대한 의견 ·····································································196
다. 피해자참가의 신청절차-참가신청절차 ························································197
라. 피해자참가의 신청절차-법원의 허가 ··························································198
마. 공판기일 등 출석권 ·····················································································202

바. 증인신문권 ····································································································203
사. 피고인신문권 ································································································204
아. 의견진술권 ····································································································205
자. 검사의 권한 행사에 대한 의견진술권 ························································206
차. 증거신청권 ····································································································207
카. 기타 피해자 권한 ·······················································································208
타. 국선변호사제도 도입 ···················································································210
파. 피해자변호사제도를 도입함에 있어, 피해자국선변호사의 선임주체를 검사로
하는 방안에 대한 자유로운 기술 ·······························································211
하. 피해자변호사의 역할 및 권한범위 ·····························································212
거. “피해자참가제도” 도입 시, 고려해야 할 사항에 대해 자유로운 견해 기술··214
4. 전문가의견조사 결과 종합 ········································································215
제2절 피해자의 공판참가의 요건 ·····························································220
1. 참가대상범죄 ······························································································220
2. 참가권자 ······································································································222
3. 참가시기 ······································································································222
제3절 참가절차 ·························································································223
1. 참가신청 ······································································································223
가. 참가신청의 시기 ···························································································223
나. 참가신청의 방법 ···························································································223
다. 검사의 경유 여부 ·························································································224
2. 법원의 결정 ································································································225
가. 재량적 허가규정의 문제점 ··········································································225
나. 참가허가의 효력발생범위 ············································································226
다. 허가결정에 대한 불복 ·················································································226
제4절 절차참가권의 소멸 ··········································································227
1. 피해자참가인의 사망 ··················································································227
2. 재판절차상 화해 ·························································································228
제5절 피해자참가인의 권리 ······································································229
1. 개관 ·············································································································229
2. 증인신문권의 범위 ·····················································································230
3. 피고인신문권의 범위 ··················································································231
4. 의견진술권의 범위 ·····················································································232

5. 검사의 권한행사에 대한 의견진술권 인정 여부 ······································233
6. 공판준비절차에서의 공판기일출석권 허용 여부 ······································234
7. 국선변호사조력권 인정 여부 ·····································································235
제6절 피해자참가제도의 조문화 방안 ·······················································236
❘제7장❘요약 및 결론 ···················································241
제1절 연구의 배경 및 필요성 ··································································243
1. 피해자 참여의 제도화방안으로서의 공판절차에서의 ‘피해자참여제도’의 개념
정립 ················································································································243
2. 수사절차 및 공판절차에의 피해자참여의 확대 ···········································243
제2절 형사절차에서의 피해자의 참여 현황 ··············································244
제3절 피해자변호사제도의 의의와 도입필요성 ·········································245
제4절 피해자참여제도에 대한 비교법적 검토결과 ····································246
제5절 공판절차상 피해자참여의 제도화 방안 ···········································249
1. 피해자참여제도 입법필요성 ·······································································249
2. 범죄피해자참여제도 제도화방안 ·······························································250
가. 범죄피해자참여제도의 대상범죄 ·································································250
나. 참가권자 ·······································································································250
다. 참가절차 ·······································································································251
라. 검사의 경유 여부 ·························································································251
마. 법원의 결정 ··································································································252
바. 피해자의 절차참여권 소멸 ··········································································252
사. 피해자의 권리 ······························································································253
아. 피해자권리고지 ····························································································254
자. 범죄피해자참여제도와 피해자의 재판절차 의견진술권 ·····························254
참고문헌 ···········································································257
Abstract ··········································································265

2007년 개정 형사소송법의 시행 이후 다양한 성과분석 내지 평가가 이루어졌다. 대표적으로 본 연구원에서도 개정 형사소송법상 피해자관련규정에 대한 진단과평가 분석이 이루어졌으며, 법원행정처에서 개정 형사소송법의 성과 분석이 뒤따랐다. 범죄피해자들은 공식적인 사법체계 내에서 그들이 무시되고 배려 받지 못한다는사실에 불만이 많다. 범죄의 영향으로서 그들이 느끼는 분노와 불안과 두려움은 떨쳐버려야 할 대상이 아니라 다루어야 할 대상이다.5) 이는 형사절차에서도 마찬가지이다. 형사절차란 범죄로 인한 고통을 다루기 위한 쌍방 간의 역동적 과정으로 파악된다.과연 현행법상으로 형사절차에서 피해자의 참여는 어떻게 보장되고 있으며, 그 보장의 구체적인 방법이나 절차는 어떤지 살펴볼 필요가 있다. 특히 수사단계에서의 피해자의 참여현황을 파악하고, 수사단계에서의 절차참여는 피해자보호에 있어서 향후절차단계에서의 피해자의 참여를 결정짓는 주요한 보장책이다. 그러나 아직은 수사단계에서의 피해자보호는 법규보다는 규칙이나 지침 등에 의해 이루어지고 있는 상황이
다. 만일 범죄피해자를 위한 절차적 권리확보가 중요하고 이를 위한 입법방안이 구체적으로 도출되어야 한다면 무엇보다 수사단계에서의 피해자권리보장책 내지 구체적인 절차나 보호방법이 도출 내지 제시되어야 할 것이다.
 
형사사법체계내에서 피해자의 지위를 격상시키고 제도화할수 있는 방안을 모색해볼 필요가 있다. 제도화하는 방법은 결국 범죄에 대한 평가와범죄자에 대한 법적 책임이 다투어지는 과정에 직접 당사자로서 참여할 수 있는 권리를 최대한 보장하는 직접적 방식으로 이루어져야 할 것이다.6) 그러나 이 경우 피의자･피고인 권리보장과의 갈등문제도 제기될 여지가 있다는 점, 피해자의 참여가 권리로까지 확대 보장되기 위해서는 어느 범위까지 인정될 수 있는가 하는 점 등 해결되어야할 과제가 적지 않다.이런 인식하에 본 연구는 형사절차에서의 피해자참여 방안 및 제도(화)에 중점을두고 현행법상의 제도와 운용의 문제, 그리고 바람직한 개선방안 도출에 그 기본적인목적을 둔다.