국문요약 ···············································1
❘제1장❘ 서 론 ∙ 박미숙 ·····································21
제1절 연구의 필요성 ·····································23
제2절 연구의 방법과 범위 ································26
1. 연구의 방법 ···········································26
2. 연구의 범위 ······································27
❘제2장❘ 오판의 개념과 원인 그리고 구제책 ∙ 박미숙 ·······29
제1절 오판의 개념 ·········································31
제2절 오판에 대한 실증연구 ··································34
제3절 오판의 원인 ············································36
1. 오판에 대한 인식정도 ···································36
2. 유죄오판의 위험성 내지 가능성 ······························37
3. 형사절차단계별 오판의 원인 ································39
가. 다양한 오판원인 ················································39
나. 수사단계 ························································41
다. 재판단계 ·····················································47
제4절 오판구제 및 방지를 위한 법제도 ···························53
1. 상소제도 ·························································53
2. 재심제도 ························································55
가. 재심제도 개관 ············································55
나. 재심이유 ······························································56
다. 증거의 신규성과 명백성의 판단 ······························62
라. 재심의 대상 ························································69
마. 재심절차 ·························································69
바. 재심청구재판 ···············································75
사. 재심심판절차 ····················································79
아. 재심심판절차의 특칙 ······································80
❘제3장❘ 사례분석 및 심층면접 결과 ∙ 박준영 ···················83
제1절 사례분석 ···············································85
1. 삼례 나라슈퍼 강도치사사건 ·····························85
가. 사건개요 ················································85
나. 경과 ················································86
다. 재심청구 ······································88
라. 재심판단 ······················································90
2. 약촌오거리 택시기사 살인사건 ························91
가. 사건개요 ··················································91
나. 경과 ·····················································92
다. 재심청구 ··········································93
라. 재심판단 ···················································98
3. 춘천파출소장 딸 강간살해사건 ·····························99
가. 사건개요 ···················································99
나. 경과 ························································99
다. 재심청구 ····················································101
라. 재심판단 ············································103
4. 수원노숙소녀 상해치사사건 ·········································103
가. 사건개요 ·················································103
나. 경과 ···············································104
다. 재심청구 ·········································107
라. 재심판단 ···········································115
5. 기타 사례 ················································115
가. 서울시 공무원 간첩조작사건 ···························115
나. 형제복지원 사건 ·········································120
제2절 심층면접 ···········································124
1. 삼례 나라슈퍼 강도치사사건 피해사례자 면담 ···············124
가. 불우한 가정환경 ··············································124
나. 수사 과정에서의 가혹 행위 ····································125
다. 변호인 조력 부재 ················································125
2. 약촌오거리 택시기사 살인사건 피해사례자 면담 ························125
가. 불우한 가정환경 ··············································125
나. 지적능력 결여 ··················································126
다. 수사과정에서의 가혹행위 및 허위자백 ·······························126
라. 정보제공의 부재 및 잘못된 정보제공 ···································126
마. 국선변호인 형식적인 조력 ········································127
3. 수원노숙소녀 상해치사사건 피혜사례자 면담 ··························127
가. 불우한 가정환경 ···················································127
나. 수사과정에서의 허위자백 ············································128
다. 정보제공의 부재 및 잘못된 정보제공 ··························128
제3절 수사 및 재판절차에서의 문제점 ·····························129
1. 수사과정에서의 문제점 ··············································129
가. 초기 연행과정의 불법성 ·······································129
나. 현장검증 ························································130
다. 진술서 작성 ···························································130
라. 사회적 약자의 환경을 고려하지 않은 수사 ····················131
마. 조사과정에서 보호자와 변호인의 조력 부재 ···························132
바. 피의자 신문조서의 작성 ········································133
사. 경찰의 폭행 등 가혹행위 ····································133
2. 재판절차에서의 문제점 ···········································134
가. 검찰의 위법성 및 법리의 모호성 ···························134
나. 검찰의 무분별한 항소와 상고 ·····································135
다. 불충분한 심리 ·······················································136
라. 형식적인 국선변호의 문제 ········································136
마. 증거물의 폐기 ·······················································137
❘제4장❘ 미국의 오판방지를 위한 방안과 사후적
구제수단 ∙ 김재현 ···············································139
제1절 서설 ·····························································141
제2절 미국의 오판 및 면죄의 현황과 실태 ·························142
1. 미국의 오판으로 인한 면죄자 현황 ·····································142
가. 연도별 면죄사건 발생 추이 ··············································143
나. DNA증거 및 비DNA증거에 의한 면죄자 수의 차이와 그 원인 ·············147
다. 면죄에 소요되는 기간(Median Time From Conviction to Exoneration) ············149
제3절 미국의 오판 피해자에 대한 사후적 구제시스템 ·····························150
1. 미국의 재심제도 ·············································150
가. 서설 ·······················································150
나. 연방법상의 구제방안으로서 인신보호영장제도
(Writ of Habeas Corpus) ·············································152
다. 새로운 공판의 신청(Motion for a New Trial) ······················165
라. 미국의 주요 주의 재심제도 ·············································170
마. 미국의 DNA감식을 위한 법률 ············································204
2. 오판피해자의 사후적 구제수단으로서 미국의 형사보상제도 ··················210
가. 서설 ·······································································210
나. 연방법에 의한 형사보상제도 ···························211
다. 미국의 주요 주 형사보상제도 ································213
제4절 미국의 오판사례를 통해 도출된 오판의 원인 ································219
1. 오판의 원인 ·····························································219
가. 서설 ·································································219
나. 증인의 과실과 의도적인 거짓말 ····························222
다. 허위자백 ····················································234
라. 잘못된 법과학적 증거 ········································240
마. 공권력 남용 ·······························································244
2. 오판의 원인과 허위자백 ··········································246
가. 목격자의 범인지목과 허위자백 ······································247
나. 허위자백의 원인 ···························································248
제5절 미국의 오판방지를 위한 노력 ··································256
1. 서설 ··································································256
2. 허위자백을 방지하기 위한 방안 ··········································257
가. 목격자의 범인지목과 관련하여 ···········································257
나. 신문의 전 과정 녹화 ·············································258
다. 신문기법의 개선 ····················································260
3. 취약한 계층을 위한 추가적인 안전장치 ····································260
4. 배심원들에 대한 판사의 설명 ······································261
5. 기타 구제책 ·················································262
제6절 소결 및 정책적 시사점 ···········································265
❘제5장❘ 독일에서의 오판원인 분석 및 대책 ∙ 김성룡 ·····271
제1절 서론 ·····················································273
제2절 오판･오류의 원인과 방지대책 ···································274
1. 개요 ···················································274
2. 검찰과 경찰 영역에서 발생하는 오판의 원인들 ··························277
가. 개요 ·······························································277
나. 수사절차에서의 오판원인과 재심의 추이 ·······························278
다. 미국 Innocence Project의 시사 ······································282
라. 미국 미시간로스쿨의 배심ㆍ사면 관련 통계의 시사 ································283
마. 독일의 오판 원인 분석 ·············································285
바. 대책 ······························································298
3. 중간ㆍ사전결정절차에의 오판의 원인들 ···········································301
가. 개요 ··························································301
나. 수사상 구속 이후 무죄판결의 함의 ··············································303
다. 대책 ·································································304
4. 공판절차에서의 오판의 원인들 ·········································305
가. 개요 ····································································305
나. 증거방법과 관련한 오판의 원인 ················································305
다. 공판정에서의 인식절차(수사결과에 대한 무비판적 수용태도) ·················306
라. 형사절차에서 권력관계 ·······································308
제3절 맺는말 ····························································321
❘제6장❘ 일본의 재심사례 분석 및 개정 논의 ∙ 박미숙 ··· 325
제1절 서론 ·····································································327
제2절 일본의 재심제도 ············································329
1. 재심제도의 이념 ·····················································329
2. 연혁 ·································································330
3. 일본 형사소송법상 재심관련 규정(법 제435조 이하) 개관 ···················331
가. 재심청구 사유 ····················································331
나. 재심청구권자 ··························································333
다. 법원의 결정 ·····························································333
4. 사형 오판구제를 위한 재심특례법안 ····································334
5. 재심관련 이론에 대한 논의 ················································335
가. 명백성의 기준과 판단방법 ················································335
나. 총합평가의 방식을 둘러싼 논의 ········································336
6. 일본 재심제도의 문제점 ··································337
제3절 주요 재심사례 ·····································338
1. 시라토리(白鳥) 사건 ··················································339
가. 사실 관계 및 의의 ··················································339
나. 쟁점 ········································································340
다. 판단 요지 ··························································340
2. 사이타가와(財田川) 사건 ······································341
가. 사안 ····································································341
나. 쟁점 ·········································································342
다. 판단요지 ································································342
3. 멘다(免田) 사건 ·····················································343
가. 사안 ····································································343
나. 쟁점 ···································································343
다. 판단요지 ······································································344
4. 마츠야마(松山) 사건 ····················································344
가. 사안 ··········································································344
나. 쟁점 ····································································345
다. 판단요지 ·····························································345
5. 시마다(島田)사건 ···················································345
가. 사안 ······································································345
나. 쟁점 ································································346
다. 판단요지 ·································································346
6. 시라토리･사이타가와 결정에 대한 평가 ··················································346
7. 기타 사건 ································································348
가. 아시카가(足利) 사건 ················································348
나. 후쿠이(福井) 여중생 살인사건 ···································350
다. 하카마다(袴田) 사건 ·····················································352
라. 마루요무선(マルヨ無線) 사건 ·······································353
마. 오자키(大崎) 사건 ·····················································354
바. 히노쵸(曰野町) 사건 ·········································355
사. 마츠하시(松橋) 사건 ··················································356
아. 히가시스미요시(東住吉) 사건 ·································357
자. 히메지우체국강도(姫路郵便局強盗)사건 ····························358
차. 도요가와(豊川) 사건 ··················································358
카. 나바리(名張) 독주 사건 ··········································359
8. 평가 ······························································360
제4절 오판 원인 분석 ·····················································361
1. 수사관에 의한 장시간 가혹 조사에 따른 자백 강요(허위자백)과
대용감옥제도 ·····························································361
2. 잘못된 감정(鑑定) ·······················································363
3. 경찰 또는 검찰의 피고인에게 유리한 증거 은폐 ····································365
4. 허위자백 또는 잘못된 감정에 대한 법원의 평가 오류 ··························366
제5절 일본변호사연합회와 오판구제 활동 ····························367
1. 일변연의 설립과 오판구제 활동 ····························367
2. 일변연과 재심 지원 ················································367
3. 일변연의 인권보호위원회 ··········································368
4. 일변연의 재심법개정논의 ·····································370
가. 배경 ···································································370
나. 일변연 개정안의 내용(平成 3년안) ···································371
제6절 일본에서의 재심개정 논의 ········································372
1. 재심개정 논의에 대한 움직임 ············································372
2. 재심개정 논의 ··························································374
제7절 재심제도를 둘러싼 과제와 시사점 ································377
1. 과제 ·······························································377
가. 조사 전 과정의 녹화･녹음, 안이한 신체구속의 금지, 조사 시 변호인
입회권의 보장 ······················································378
나. 과학적 증거의 내용을 검증할 기회 보장 ····························379
다. 전면적 증거개시의 제도화 ··········································379
라. 충분하고도 효과적인 변호인의 조력을 받을 권리의 보장 ·······················380
마. 재심개시 결정에 대한 불복신청의 금지 ····························380
바. 독립한 제3자 기관에 의한 冤罪원인의 규명 ····························380
사. 수사기관의 위법수사 억지 ·········································381
아. 시사점 ·······························································381
❘제7장❘ 오판방지를 위한 제도정비 ∙ 박미숙 ···················387
제1절 무죄추정의 원칙의 준수 및 적용 ·······························389
제2절 수사단계에서의 제도 정비방안 ···································392
1. 위법･탈법수사관행 억지 ·····················································392
2. 피의자신문제도의 개선 ················································394
3. 실질적이고도 효과적인 변호인의 조력을 받을 권리 보장 ·····················394
4. 피의자신문과 허위자백 ··········································397
가. 피의자신문의 의미와 오판가능성 ·····································397
나. 허위자백의 이유 ······························································400
다. 지적 장애인등 사회취약계층의 허위자백 가능성 ······································402
라. 허위자백의 방지 ····························································403
5. 수사기관에 대한 신문기법 교육 ·······································411
제3절 공판단계에서의 제도 정비방안 ·································412
1. 자백의 임의성 판단기준 ··········································412
2. 자백배제법칙의 엄격한 적용 ·············································414
3. 보강증거 확보 ·····························································415
제4절 재심제도 개선방안 ················································415
1. 재심의 입법목적과 그 한계 ·············································415
2. 재심제도 개정의 방향 ···············································416
가. 재심청구권자 확대 ·················································417
나. 증거의 신규성에 대한 피고인 과실의 경우 포함 여부 ····························418
다. 사실조사 관련 규정 보완 ·······································419
라. 재심에서 법관의 제척･기피 규정의 신설 ························420
마. 재심절차의 신속성 확보 ···················································420
바. 재심청구절차상 국선변호인 조력 ·······································421
사. 재심절차에서의 증거개시제도 ··································422
아. 재심개시결정에 대한 불복제도 ·······························423
자. 재심무죄판결의 공시 관련 ··········································423
차. 불이익재심의 인정 여부 ················································424
제5절 사회적 취약계층에 대한 형사절차상 보호 ·····································425
1. 유죄오판과 사회적 약자 ·········································425
2. 지적 장애인의 방어권보장 ·········································426
제6절 증거 수집 및 보존 그리고 폐기에 관한 입법정비 ·························430
❘제8장❘ 결 론 ∙ 박미숙 ···················································433
참고문헌 ··················································441
Abstract ····················································449
부록 ······························································473

재심제도는 형사소송법상 특별절차로 규정되어 있긴 하지만, 일반인들은 물론 학계에서 조차 관심을 갖지 않아 연구조차 잘 되지 않고 있었던 제도입니다. 이러한 ‘재심’ 제도가 핫이슈로 떠오른 것은 요 근래 몇 년 사이의 일입니다. 재심제도가 주목을 처음 주목을 받게 된 데에는 ‘진실·화해를 위한 과거사정리 기본법’(약칭 과거사정리법)의 역할이 컸습니다. 과거사정리법에 의해 소위 반민주적, 반인권적 인권유린 행위와 의문사 사건을 중심으로 한 조사가 이루어졌고, 이 조사를 바탕으로 하여 국가차원의 폭력행위가 밝혀지면서 과거 유죄선고를 받았던 사건 중 75건에 이르는 사건들이 재심을 통한 무죄 확정을 받았습니다. 허나 이러한 시국사건이 아닌 일반사건에서의 재심은 최근까지도 상상하기 쉽지 않은 일이었습니다. 일반사건에서 법집행이나 법적용의 잘못됨을 이유로 유죄 확정판결을 뒤집기는 어렵기 때문입니다. 그러나, 언론보도를 통해 드러난 ‘익산 약촌오거리 살인사건’, ‘삼례 나라슈퍼 살인사건’ 등의 사례를 통해 우리는 억울한 누명을 써 유죄 판결을 받고, 오랜 시간 수용생활을 한 피해자들의 고통의 크기가 얼마나 큰지, 또사회적 약자들이 법 앞에서 얼마나 무기력한 좌절을 겪게 되는지 등에 대해 알 수 있게 됐습니다. 수사기관과 법원의 잘못은 단지 피의자·피고인 신문 단계에서 그치는 것이 아님과, 이들이 갖고 있는 확증편향의 문제의 영향이 크다는 것도 확인할 수 있었습니다. 특히 사회적 약자에게 쏟아지는 불편한 시선과 인식은 ‘형사사법체계안’이라고 해서 예외가 아니며, 오히려 더욱 강화될 수 있음을 여지없이 보여준 예시가 되기도 했습니다. 이런 맥락에서, 오판을 방지하기 위한 사법시스템의 문제는 어느 한 지점에서만 일어나는 것으로 볼 수 없습니다. 사람, 조직, 운영, 체계 등 모든 영역에서 공정한 재판이라는 궁극적 목적을 위해 힘을 모아야합니다. 인간존엄이라는 헌법적 가치가 제대로 작동하지 않은 상황에서는, 언제 얼마든지 무고한 피해자들이 생겨날 수 있습니다.이번 연구에서는 우선적으로 오판방지와 재심제도의 기능이라는 데에 초점을 두어 재심제도의 기능 회복에 관심을 갖고 재심을 통해 구제받은 몇몇 사례를 살펴보았습니다. 나아가 입법론적으로는 어떤 방향으로 나아가야 하는지에 일차적인 목적을 두었습니다. 오판방지를 위한 연구는 일차적으로는 법률 전문가 내지 관심이 있는 사람들의 몫이긴 합니다. 그러나 제대로 된 결과를 얻어내기 위해서는 심리학이나 사회학, 정신의학자 등 관계있는 사람들이 모두 함께 해야만 합니다. 시민들의 냉철하고도 따듯한 관심과 모니터링도 당연히 필요합니다. 우리나라는 그 어느 때보다도 다양한 영역에서 국제적인 기준에 부응하고자 노력하고 있습니다. 그 모든 영역에서의 성장도 중요하지만, 그 안에서 숨 쉬고 있는 개개인들의 가치와 존엄 역시 한시도 무시되어서는 안 됩니다. 이를 위한 사법정상화는 운영하는 사람과 조직만의 문제는 아닐 것입니다. 대상이 되는 사람들의 가치와 존엄도 함께 정상적인 시선과 관심으로 지켜질 때, 비로소 우리는 정상화되는 사회를 기대할 수 있게 될 것입니다.