2025년 10월 30일 출간 | ISBN : 1130324974 | 372쪽 | 규격外 | 1판

저자 : 한일형사법연구회 이동희 국립경찰대학 교수(한일형사법연구회 한국측 대표) 김혁 국립부경대학교 교수(한일형사법연구회 한국측 간사) 신동운 서울대학교 명예교수 미츠이 마코토(三井 誠) 고베대학 명예교수 김태명 전북대학교 교수 고토 히로코(後藤弘子) 지바대학 교수 조기영 전북대학교 교수 나카무라 유토(中村悠人) 간세이가쿠인대학 교수 황태정 경기대학교 교수 가나자와 마리(金澤?理) 오사카공립대학 교수 최준혁 인하대학교 교수 류부곤 국립경찰대학 교수 이부스키 마코토(指宿 信) 세이조대학 교수(일한형사법연구회 일본측 대표) 오카다 요시노리(岡田?典) 난잔대학 교수 김봉수 전남대학교 교수 박용철 서강대학교 교수

발간사 - 이동희 · 김혁(한일형사법연구회 대표 · 간사) ··················································· iii 축사 - 신동운(서울대학교 명예교수) ·······································································v 축사 - 미츠이 마코토(三井 誠) 고베대학(神?大?) 명예교수 ········································ vii 제1편 형법?·?형사정책 제1부 성범죄 규정의 개정에 관하여 3 1장 한국에서의 성범죄 처벌규정의 변화와 한계 【김태명】························5 Ⅰ. 머리말 ····················································································· 5 Ⅱ. 한국에서의 성범죄 처벌규정의 변화 ·················································8 1. 「형법」 상 성범죄 처벌규정의 변화 ················································8 2. 특별법상 성범죄 처벌규정의 변화과정 ············································9 (1) 성범죄에 대한 처벌강화 ··························································9 (2) 성범죄자에 대한 각종 보안처분의 도입·실시 ································ 10 3. 한국의 성범죄 처벌규정의 변화 요인 ··········································· 13 Ⅲ. 한국의 성범죄 처벌규정의 한계 ·····················································14 1. 한국의 성범죄 발생실태 ·························································· 14 2. 형벌의 문제점 ····································································· 16 3. 보안처분의 문제점 ································································ 17 4. 권력형성범죄에 대한 미흡한 대처 ··············································· 19 Ⅳ. 맺음말 ·················································································· 20 2장 성범죄규정 개정의 의미 【고토 히로코; 後藤弘子】 ·····························21 Ⅰ. 역사적인 성 형법개정 ································································21 Ⅱ. 제한적인 성 형법개정 ································································22 Ⅲ. 강간죄에서 강제성교 등 죄로 ·······················································23 Ⅳ. 성교 동의연령은 여전히 낮은 상태 ·················································23 Ⅴ. 폭행 · 협박 요건의 유지 ······························································25 Ⅵ. 비친고죄화에 의한 피해자 지원 ····················································27 Ⅶ. 감호자에 의한 강제성교 등 죄 ······················································28 Ⅷ. 해야 할 일은 많이 남아있다 ·························································29 추록 ···························································································31 제2부 사형 제도35 3장 사형의대체형 【조기영】 ·································································37 Ⅰ 서설 ······················································································37 Ⅱ 한국의 사형제도 현황과 사형존폐론의 전개 ······································38 1. 사형제도 현황 ······································································38 2. 사형존폐론의 전개 ·································································39 (1) 대법원·············································································41 (2) 헌법재판소 ········································································42 3. 국회의 사형폐지특별법안의 발의 ·················································44 Ⅲ 사형의 대체형 ··········································································45 1. 서설 ··················································································45 2. 절대적 종신형 도입론 ······························································46 3. 상대적 종신형 도입론 ······························································47 Ⅳ 결론적 고찰 ·············································································49 4장 석방 가능성 없는 종신형과 비인도적 형벌 【나카무라 유토; 中村悠人】 ······························································51 Ⅰ. 들어가며(일본의 상황) ·······························································51 Ⅱ. 유럽의 상황 ············································································55 xvi?세부목차 Ⅲ. 일본의 사면제도는 종신형 감축 가능성을 열 것인가? ···························62 Ⅳ. 결론 ······················································································65 제3부 모욕죄의 동향67 5장 사이버모욕죄·사이버명예훼손죄의 처벌규범 및 입법 논의 【황태정】 ·····················································································69 Ⅰ. 들어가며·················································································69 Ⅱ. 현행법의 체계적 해석과 지향점 ·····················································71 1. 형법과 정보통신망법 규정 간의 관계설정 ······································71 2. 형법 제309조의 입법취지와 함의(含意) ········································74 3. 정보통신망법 제70조의 해석방향 ···············································76 Ⅲ. 명예훼손죄와 관련 쟁점 ······························································77 1. 사실적시 명예훼손죄의 폐지 문제 ···············································78 2. 위법성조각사유의 다양화 문제 ··················································80 Ⅳ. 모욕죄와 관련 쟁점 ····································································87 1. 소위 사이버모욕죄의 신설 문제 ··················································87 2. 형법상 모욕죄의 폐지 문제 ·······················································91 Ⅴ. 마치며 ···················································································92 추록 ·····························································································96 6장 모욕죄의 법정형 개정에 대하여 【가나자와 마리; 金澤?理】 ················97 Ⅰ. 들어가며·················································································97 Ⅱ. 모욕죄의 자리매김: 명예훼손죄와의 대비 ·········································98 Ⅲ. 사실적시의 유무가 문제가 되는 예 ················································101 Ⅳ. 모욕죄의 법정형의 상향 ····························································102 Ⅴ. 모욕죄의 새로운 지평 ·······························································104 Ⅵ. 나오며 ·················································································106 추록 ··························································································107 제4부 형법개정의 최신 동향 109 7장 형법개정의 필요성 - 형사제재를 중심으로 【최준혁】 ·····················111 Ⅰ. 들어가며···············································································111 Ⅱ. 쟁점별 논의 ···········································································114 1. 형의 종류(제41조) ·······························································114 (1) 1992년 형법개정법률안(제36조) ············································· 114 (2) 2011년 형법(총칙)일부개정법률안(제40조)··································114 2. 자유형의 기간(제42조) ··························································116 (1) 1992년 형법개정법률안(제37조) ············································ 116 (2) 2011년 형법(총칙)일부개정법률안(제41조)··································116 3. 자격상실과 자격정지(제43조, 제44조) ········································117 (1) 1992년 형법개정법률안(제38조, 제39조) ··································· 117 (2) 2011년 형법(총칙)일부개정안(제42조) ······································ 117 4. 벌금(제45조) ·····································································117 (1) 1992년 형법개정법률안(제40조) ············································· 117 (2) 2011년 형법(총칙)일부개정법률안(제43조)··································118 5. 구류(제46조)와 과료(제47조) ··················································118 (1) 1992년 형법개정법률안(제41조, 제42조) ··································· 118 (2) 2011년 형법(총칙)일부개정법률안(제44조)··································119 6. 형의 경중(제50조) ·······························································119 (1) 1992년 형법개정법률안(제43조) ············································· 119 (2) 2011년 형법(총칙)일부개정법률안(제45조)··································119 7. 몰수(제48조, 제49조) ···························································119 Ⅲ. 검토 ····················································································120 1. 개별쟁점에 관한 의견 ····························································120 2. 맺으며 ·············································································126 추록 ··························································································128 8장 구금형의 신설 【나카무라 유토; 中村悠人】 ·······································130 Ⅰ. 구금형의 창설과 형벌 내용 ·························································130 Ⅱ. 형벌론과 처우론의 관계 ····························································134 Ⅲ. 처우개념···············································································137 Ⅳ. 자유형 순화론, 특히 작업의 점에서 ···············································140 Ⅴ. 형벌의 목적과 처우 · 행형의 목적 ················································144 Ⅵ. 보충 ····················································································145 제2편 형사절차 제1부 영상녹화물의 본증 이용을 둘러싼 양국의 논의151 9장 영상녹화물의 본증 이용을 둘러싼 한국의 논란 【류부곤】 ···············153 Ⅰ. 들어가며···············································································153 Ⅱ. 한국 형사소송법상 영상녹화제도의 내용과 주요 특징 ·························155 1. 영상녹화제도의 도입과정과 내용 ···············································155 (1) 수사기관의 피의자신문과 참고인조사에 대한 영상녹화 ······················158 (2) 조서의 증거능력과 관련한 영상녹화물의 사용 ································159 (3) 기억환기의 수단인 영상녹화물 ················································160 2. 현행 영상녹화제도의 주요 특징 ·················································161 Ⅲ. 영상녹화물의 증거능력에 대한 논의상황과 분석 ·······························164 1. 논의상황의 개관 ··································································164 2. 대법원의 판단 - 참고인조사과정에 대한 영상녹화물 ·························167 3. 양측 주장의 쟁점별 정리 ························································169 Ⅳ. 논의를 마치며 ········································································175 추록 ··························································································177 10장 취조기록매체(영상녹화물)의 실질증거화를 둘러싸고 【이부스키 마코토; 指宿 信】 ···························································181 Ⅰ. 시작하며···············································································181 Ⅱ. 문제제기···············································································182 Ⅲ. 학설의 상황 ···········································································185 Ⅳ. 재판실무와 판례 ·····································································189 Ⅴ. 끝을 맺으며 ···········································································191 추록 ··························································································197 제2부 국민의 사법참여 201 11장 국민참여재판의 시행 성과와 과제 【이동희】 ··································203 Ⅰ. 글을 시작하며 ········································································203 Ⅱ. 국민참여재판의 도입경위 및 시행상황의 분석 ··································206 1. 제도도입을 둘러싼 찬반논쟁과 시범적 실시 ···································206 2. 제도요약 및 재판원재판과의 비교 ··············································209 (1) 국민참여재판의 성격 ·························································· 209 (2) 재판원재판의 비교····························································· 209 3. 사건의 접수 및 처리상황의 분석 ················································212 (1) 신청율 및 실시율 ······························································ 212 (2) 배제율 및 철회율 ······························································ 213 4. 배심원평결 및 판결에 대한 분석 ················································216 (1) 배심원의 평결분포 및 무죄평결율 ············································ 216 (2) 공판 및 판결 ··································································· 218 (3) 평결과 판결의 일치도 ························································· 219 (4) 양형의견과 선고형····························································· 221 (5) 상소관계 ······································································· 221 Ⅲ. 국민참여재판의 성과에 대한 평가 ················································223 1. 제도 도입에 수반된 법 개정과 형사절차의 선진화 ···························223 2. 사법의 민주적 정당성과 신뢰의 제고 ···········································225 (1) 민주적 정당성 ································································· 225 (2) 국민의 사법에 대한 신뢰의 제고 ··············································226 3. 실체적 진실발견과 적법절차, 그리고 공정한 재판 ····························227 Ⅳ. 최종형태 관련 주요쟁점에 대한 검토와 제언 ····································230 1. 최종형태안의 성립과 이를 둘러싼 논쟁 ········································230 (1) 국민사법참여위원회의 발족과 개정안의 의결 ································230 (2) 법무부의 수정안 입법예고와 정부안의 국회제출 ·····························231 (3) 주요쟁점의 요약 및 비교 ······················································232 2. 실시요건으로서 신청주의 방식에 대한 검토 ···································234 (1) 낮은 신청률 · 실시율 및 높은 철회율의 문제 ··································234 (2) 정부안에 대한 검토 및 개선방안 ··············································236 3. 배제결정제도 ·····································································238 4. 심원평결의 효력: 기속력 부여인가 권고적 효력인가 ·························239 (1) 제도 및 운용현황 ······························································239 (2) 헌법적 문제의 해명과 검토 ···················································239 (3) 개선방안 및 정부안의 검토 ···················································241 추록 ··························································································243 12장 재판원재판의 현상과 과제: 재판원제도의 확대와 형사 소송의 새로운 절차화를 위해 【오카다 요시노리; 岡田?典】 ·························245 Ⅰ. 글 머리에 ··············································································245 Ⅱ. 일본의 재판원제도의 특색 ··························································246 Ⅲ. 재판원제도의 가능성 ································································247 1. 규모의 확대로 ·····································································247 2. 재판원후보자의 사퇴율 · 출석률에 관하여 ······································248 3. 일본사회의 거울로서의 과제 ····················································250 Ⅳ. 형사소송의 새로운 절차화를 향하여 ··············································251 1. 사실인정과 양형절차의 구분 ····················································252 2. 공판 전정리절차와 공판의 완전 분리 ···········································253 3. 명확한 증거법칙의 확립 ·························································253 Ⅴ. 글을 맺으며 ···········································································254 제3부 공적 변호제도 259 13장 형사변호의 현안 및 내실화 방안 - 국선변호인제도의 확대 적용을 중심으로 【김봉수】 ···························································261 Ⅰ. 들어가는 말 - 변호인의 “충분한” 조력을 받을 권리 ···························261 Ⅱ. 국선변호인제도의 현황과 한계 ····················································262 1. 국선변호인 제도의 운영 현황 ···················································262 2. 현행 국선변호인제도의 문제점과 한계 ·········································263 (1) 피고인 국선변호의 한계와 국선변호 대상의 확대 필요성 ····················263 (2) 국선변호인의 ‘법원종속’ 현상과 국선변호의 독립성 확보 ····················264 (3) 국선변호 서비스의 질적 저하 문제와 보수의 현실화 ························264 Ⅲ. 피의자 국선변호에 있어서 현안과 대안 ··········································265 1. 수사절차에서 ‘피의자’ 국선변호의 필요성과 대안 ·····························265 (1) 피의자와 변호인의 ‘충분한’ 조력을 받을 권리 ·······························265 (2) 피의자 국선변호의 현실화 방안으로서 ‘형사공공변호인 제도(안)’ ··········266 2. “형사공공변호제도(안)”의 주요 내용과 그 한계 ·······························266 (1) 국선변호의 대상 범위 ························································· 268 (2) 국선변호인 지위 및 변론의 독립성 확보 ·····································269 (3) 피의자의 변호인 선택권 인정 여부 ··········································· 271 (4) 피의자 국선변호인의 계속적 변호 인정 여부·································273 Ⅳ. ‘피해자’ 변호에 있어서 현안과 대안 ··············································274 1. 형사절차에서 피해자의 소외 문제 ··············································274 2. 피해자 국선변호제도의 내용과 현황 ············································275 (1) 「성폭력범죄의 처벌 등에 관한 특례법」상 피해자에 대한 국선변호 ········275 (2) 「아동 · 청소년의 성보호에 관한 법률」상 피해자에 대한 국선변호 ···········275 (3) 「아동학대범죄의 처벌 등에 관한 특례법」상 피해자에 대한 국선변호 ··············· 275 (4) 검사에 의한 피해자 국선변호사의 선정 ······································276 3. 현행 피해자 국선변호제도의 문제점과 개선방향 ······························276 (1) 법률구조 및 변호인 조력권의 충분한 보장 차원에서의 불균형 ··············276 (2) 피해자 국선변호사의 조력 내용과 국선변호 대상범죄의 확대 필요성 ······277 Ⅴ. 나가는 말 - 국선변호인제도의 일원화 필요성 ·································279 14장 일본에서의 공적 변호제도의 발전과 과제 【오카다 요시노리; 岡田?典】 ··························································281 Ⅰ. 들어가며···············································································281 Ⅱ. 일본의 공적 변호제도의 역사적 연혁 ·············································282 1. 피고인 국선변호제도의 등장 ····················································282 2. 피의자 국선변호제도의 도입론과 당번 변호사제도의 등장···················283 3. 공설변호인제도론 ································································285 Ⅲ. 피의자 국선변호제도의 탄생과 현황 ··············································286 1. 사법제도개혁에서의 피의자 국선변호제도의 도입 ····························286 2. 국선변호제도의 현황 ·····························································287 Ⅳ. 향후 과제 ··············································································289 1. 공적 변호제도의 국제기준 ·······················································289 2. 체포단계 피의자 국선변호제도 ··················································290 3. 신병 불구속 피의자에 대한 피의자 국선변호제도 ·····························291 4. 공적 변호제도의 그 밖의 과제 ··················································293 Ⅴ. 나오며 ·················································································293 제4부 형사절차의 전자화301 15장 디지털 증거의 수색·압수 【박용철】 ·············································303 Ⅰ. 들어가는 글 ··········································································303 Ⅱ. 원본성 · 동일성 · 무결성의 문제 ····················································305 1. 디지털 증거 압수 · 수색시 중요성이 대두된 새로운 개념 ·····················305 2. 주요 판례 및 동일성 · 무결성 확인 절차 ········································306 (1) 주요 판례 ·····································································306 (2) 동일성 · 무결성 확인 절차 ·····················································307 3. 소결 ················································································308 Ⅲ. 압수 · 수색시 참여권 인정의 여부 ·················································309 1. 디지털 증거 압수 · 수색시 참여권 의미의 확대 ································309 2. 주요 판례 및 참여권 해석의 미래 ···············································310 세부목차?xxiii (1) 주요판례 ·······································································310 (2) 참여권 해석의 미래 ····························································312 3. 소결 ················································································312 Ⅳ. 원격지 압수 · 수색의 문제···························································313 1. 디지털 증거 압수 · 수색 범위의 실질적 확대 ··································313 2. 주요 판례 및 원격지의 의의 ····················································314 (1) 주요 판례 ·····································································314 (2) 원격지의 의의 ································································314 3. 소결 ················································································315 Ⅴ 나가며 ··················································································315 16장 새로운 디지털 증거의 취득 방법의 제안을 둘러싸고 【이부스키 마코토; 指宿 信】 ····························································317 Ⅰ. 소결 ····················································································317 Ⅱ. 2011년 형사소송법 개정 ···························································317 1. 리모트 수색 및 압수(원격 액세스) ··············································318 2. 기록명령부압수 ···································································318 3. 전자적 기록의 압수 ·······························································318 4. 통신이력 보전요청 ·······························································319 Ⅲ . ‘전자적 기록 제공명령’의 신설 제안 ··············································319 Ⅳ. 제공명령 유사제도 비교법적 자료: 미국법 ······································323 Ⅴ. 결론 ····················································································329 추록 ··························································································336 자 료 편 「한일형사법연구회」 학술세미나 개최 현황 ...............................................340 집필자 소개 ......................................................................................................346

발 간 사

한일형사법연구회는 한ㆍ일의 형사법 분야에 있어서 비교법 연구의 필요성을 공유하는 양국의 학자들이 뜻을 모아 2018년에 창립하였습니다. 창립 이래, 형사법 분야의 심도 있는 학술 교류와 공동 발전을 위한 연구 기반을 다지고자, 한일 양국의 연구자들이 매년 학술세미나를 개최하며 활발한 교류를 이어오고 있습니다. 이러한 학술 교류는 단순한 지식의 전달을 넘어, 상호 법제에 대한 깊은 이해와 공동의 문제의식을 바탕으로 양국 형사법 발전의 방향성을 함께 모색하는 데 중점을 두고 진행되어 왔습니다.
연구회의 정기적인 학술세미나는 한국과 일본을 오가며 매년 11월에 개최하기로 하였고, 이에 따라 뜻깊은 제1회 학술세미나는 2018년 11월 3일 대한민국 서울에서 개최되었습니다. 이후 코로나 팬데믹으로 인한 개최 보류와 재개를 거쳐 지난해 2024년도까지 총 5회가 개최되었습니다. 학술세미나의 방식은 형사실체법 및 형사절차법 분야에서 2개의 공통 주제를 선정하여 양국에서 총 4명이 발표하는 형식을 취하였습니다. 발표원고를 양국 언어로 번역한 자료집을 사전에 완성하여 참가자 전원이 미리 독회하고 연구회에 참가하였고, 세미나에서는 지정토론과 질의응답만을 통역함으로써 매우 심도 깊은 논의를 진행할 수 있도록 했습니다.
이러한 세미나의 운영 방식에 대해서는 좋은 평가가 이어져서 지난해 개최되었던 제5회 학술세미나까지 같은 형식으로 학술세미나가 개최되었습니다.
이번에 발간되는 논문집은 연구회를 통해 한일 양국의 형사법 분야의 학술교류의 성과를 기록으로 남긴다는 취지를 가지고 있습니다. 제1회부터 제4회까지의 연구회 학술세미나에서 발표되었던 논문을 정리하여 수록한 것으로, 그간의 학문적 논의의 결실이자 한일 학술 교류의 성과를 집대성한 결과물입니다. 또한 한국에서의 출간과 더불어 일본에서도 2025년도 일본 정부의 과학연구비 출판 조성에 선정되어 비교법연구의 성과로서 동시에 발간하게 된 점을 더욱 뜻깊게 생각합니다(指宿信ㆍ李東熹ㆍ安部祥太（編）, 『日韓刑事法?究Ⅰ』, 新山社).
본서는 제1편 「형사실체법ㆍ형사정책」과 제2편의 「형사절차법」의 2개의 편(編)으로 구분되어 있습니다. 그리고 각 편은 4개의 부(部)로 구성되어 있으며, 이는 매년 개최되었던 학술행사의 발표주제의 내용에 상응하는 형태입니다. 세부적으로 보면, 제1편에서 성범죄 규정의 개정, 사형제도, 사이버명예훼손죄와 모욕죄의 동향, 형벌 및 형법개정 동향을, 제2편에서 피의자신문 영상녹화제도와 증거법, 국민참여재판과 재판원재판, 공적변호제도, 형사절차의 전자화를 다루고 있습니다. 양국 형사법 분야에서의 화두가 되어 있는 주요한 연구주제를 다루고 있고, 최신의 입법 동향을 반영하고 있는 만큼 양국의 비교법 연구에 유익하게 활용되기를 바라는 마음입니다. 또한 이번 논문집의 발간을 통해 한일 형사법 연구자 간의 지속적이고 심화된 논의의 궤적이 명확히 드러나길 바랍니다. 아울러 본 논문집이 양국 형사법 이론과 실무에 대한 상호 이해를 확장하고, 미래의 공동 연구와 협력을 위한 발판이 되기를 기대합니다.
본서의 발간에 즈음하여 서울대학교 신동운(申東雲) 명예교수님과 일본 고베대학 미츠이 마코토(三井 誠) 명예교수님이 축사를 보내주셨습니다. 오랫동안 한ㆍ일 양국의 형사법 분야의 학술교류와 비교 연구에 기여하셨던 두 분은 양국에서 개최되었던 한일형사법연구회 학술세미나에 초대되어 뜻깊은 축사를 해주셨던 인연이 있었기에 깊은 감사의 예를 표합니다. 또한 본서의 발간을 흔쾌히 수락해주신 박영사의 안종만 회장님과 안상준 대표님을 비롯한 관계자분들과 꼼꼼한 교정을 맡아주신 우석진 위원님께 감사드립니다.
한일형사법연구회의 성공적인 운영과 지속적인 발전의 이면에는 한ㆍ일 양국의 회원분들의 열정적인 참여와 노력이 있었습니다. 학술행사와 논문집 발간을 위해 기꺼이 지식과 열정을 나누어주신 양국 연구자 여러분, 그리고 매 행사마다 헌신적으로 지원해 주신 관계자분들께 깊이 감사드립니다. 앞으로도 본 연구회를 중심으로 한 한일 형사법 분야의 학술 교류가 더욱 풍성하고 내실 있게 지속되기를 소망합니다.

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