전면개정 제6판 을 내면서
2015년 제5판을 낸 후 무려 약 5년 만에 다시 개정판을 낸다. 그사이 몸 담았던 학교에서 정년 퇴임도 하는 등 신상의 변화도 있었지만 필자의 게으름으로 작업이 더욱 늦어졌다. 강좌에서 보아온 오·탈자를 고치고 수정할 부분도 눈에 띄었을 뿐 아니라 최근 다른 교과서나 연구논문도 많이 출간되어 반영되어야 할 부분도 많아졌다.
2012년 제1회 변호사시험이 시작된지 곧 10년이 되어간다. 이번 판에서는 변호사시험의 출제경향에 맞게 책을 가다듬는 것이 급선무였다. 이해하기 어려운 부분이나 어려운 한자는 가능한 줄여 한글화하였고 새로운 법령·판례의 변화도 반영하였다. 새롭게 판례에서 문제된 쟁점은 기본사례 또는 예제 사례화하여 추가하고 판례는 2019년 판결까지 반영하였다.
법을 처음 배우는 자에게는 물론 어느 정도 공부한 자에게도 사례문제 해결방법은 민사법의 이해에 필수적이고 앞으로 민사분쟁 해결능력 함양에도 중요한 역할을 한다. 더욱이 로스쿨 졸업 후 치르는 변호사시험에서도 민사법의 배점이 다른 법에 비하여 대폭 상향 반영되고 있다. 법학교육에서 민사법 그중에서도 사례학습의 중요성은 더 이상 강조할 필요도 없을 것이다. 법학 교과서 시장이 침체된 것은 경기 때문 만이 아니라 로스쿨 학습방법에 기인 한 것이 크기에 학문의 위기이자 후퇴이다. 이 책은 중요판례사안을 중심으로 한 생생한 케이스를 기본사례로 설정하였기에 ‘살아있는 법’ 대한 이해에 큰 도움을 주리라고 확신한다. 아무 쪼록 이 책이 독자들의 민법 학습 마무리와 변호사시험 대비에 큰 도움이 되기를 기대한다.
점점 열악해지는 출판환경으로 인하여 개정판 내기가 더욱 어려워진 것이 현실이다. 어려운 환경임에도 흔쾌히 출간을 허락하고 개정판에 심혈을 기울여준 ‘네오고시뱅크’의 정주형 사장님과 편집 실무자에게 감사드린다. 정 사장님은 교육사업에 바쁜데도 불구하고 책의 장정에서부터 내용 편집에 심혈을 기울여 주어 책의 가독성도 좋아졌고 신선해졌다.
2020년 4월
한강이 보이는 마포 연구실에서
白泰昇 씀
제1편 총 설
§1 민법 공부방법 ································································································································ 2
§2 최근 변호사시험 문제 분석 및 출제경향 ···················································································· 12
제2편 민법총칙
사례 1 미성년자가 행한 법률행위 및 불법행위의 효과 ····························································· 18
사례 2 미성년자의 법률행위의 효력, 태아의 권리능력, 호의동승 ············································· 28
사례 3 미성년자의 신용카드거래의 법률관계 ············································································· 41
사례 4 재단법인 출연재산의 귀속시기, 비법인의 불법행위책임 ··············································· 48
사례 5 비법인 사단의 대표자의 부정한 거래행위 ······································································ 53
사례 6 권리능력 없는 사단 ········································································································· 67
사례 7 대표권남용(代表權襤用) ··································································································· 77
사례 8 법률행위의 해석, 토지거래허가제 ··················································································· 81
사례 9 법률행위의 해석, 부동산 이중매매 ················································································· 92
사례 10 통정허위표시(通情虛僞表示)의 유추적용 ········································································ 99
사례 11 법률행위의 해석과 착오 ································································································ 106
사례 12 착오와 사기, 담보책임 ···································································································· 117
사례 13 법률행위의 대리, 대리행위의 하자(瑕疵) ······································································ 122
사례 14 법률행위의 대리 ············································································································· 127
사례 15 무권리자의 처분행위 ······································································································ 138
사례 16 명의(名義) 무단사용 ······································································································· 147
사례 17 일상가사대리(日常家事代理)와 부동산 이중매매 ··························································· 159
사례 18 표현대리(表見代理), 부동산 이중매매 등 ······································································ 167
사례 19 유동적 무효, 토지거래허가제 ························································································ 175
사례 20 법률행위의 해석, 일부무효 ···························································································· 183
사례 21 통정허위표시와 보호받는 제3자의 범위 ······································································· 189
사례 22 표현대리, 소멸시효 ········································································································ 192
제3편 물권법
사례 23 이중보존등기, 중복등기의 효력 ···················································································· 204
사례 24 등기의 유효성 ················································································································ 215
사례 25 토지거래허가구역내의 토지에 대한 중간생략등기 ························································ 219
사례 26 중간생략등기, 소유권이전등기청구권의 양도 ································································ 231
사례 27 점유자와 회복자의 관계 ································································································ 245
사례 28 선의취득, 상호침탈 ········································································································ 252
사례 29 부동산점유취득시효 ······································································································· 261
사례 30 공유의 법률관계 ············································································································ 278
사례 31 명의신탁 ························································································································ 285
사례 32 법정지상권 내지 관습법상의 법정지상권 ····································································· 300
사례 33 등기부취득시효·명의신탁·법정지상권 ········································································ 316
사례 34 전세권 ···························································································································· 323
사례 35 동일인이 물상보증인과 연대보증인을 겸한 경우 책임의 범위 ···································· 329
사례 36 공동저당에서 이시배당 ·································································································· 336
사례 37 소유권유보부매매(所有權留保部賣買), 양도담보(讓渡擔保) ··········································· 341
사례 38 가등기담보(假登記擔保) 및 유저당(流抵當) ·································································· 349
사례 39 유동집합물 양도담보 ····································································································· 353
사례 40 가등기담보, 양도담보 및 담보권 실행방법 ··································································· 361
제4편 채권총론
사례 41 종류채권의 특정, 금전채권의 특질, 채권자지체 ·························································· 368
사례 42 이자채권, 이자의 제한 ··································································································· 381
사례 43 이행보조자의 행위에 대한 책임 ··················································································· 398
사례 44 이행불능, 부동산이중매매 ····························································································· 403
사례 45 이행거절, 채권자지체, 대가위험 ···················································································· 414
사례 46 채권자대위권과 채권자취소권 ······················································································· 423
사례 47 담보부동산(擔保不動産)과 사해행위(詐害行爲) ····························································· 432
사례 48 채권자취소권의 행사와 원상회복의 방법 ······································································ 441
사례 49 연대보증(連帶保證), 계속적 채권관계 ··········································································· 449
사례 50 보증채무와 소멸시효 ····································································································· 455
사례 51 채권양도(債權讓渡) ········································································································ 465
사례 52 상계(相計) ······················································································································ 482
제5편 채권각론
사례 53 계약의 성립 ··················································································································· 492
사례 54 의사실현(意思實現)에 의한 계약의 성립 ······································································ 502
사례 55 사실적 계약관계 ············································································································ 509
사례 56 불능(不能)에 따른 제535조 책임 ·················································································· 529
사례 57 계약해제(契約解除)의 효과 ···························································································· 535
사례 58 동시이행의 항변권, 불안의 항변권 ··············································································· 544
사례 58-1 일방적 위약금 약정의 효력 ··························································································· 557
사례 59 임대차(賃貸借) ··············································································································· 568
사례 60 주택임대차(1) ················································································································· 583
사례 61 주택임대차(2) ················································································································ 590
사례 62 도급계약(都給契約) ········································································································ 598
사례 63 공유관계, 사무관리, 부당이득(전용물소권) ·································································· 603
사례 64 의사책임, 교통사고에 따른 책임 ··················································································· 611
사례 65 교통사고로 인한 자동차손해배상책임 및 피해자 측 과실 ··········································· 625
사례 66 교통사고책임 ················································································································· 630
사례 67 의료과오책임 ·················································································································· 637
사례 68 공동불법행위, 생명침해와 손해배상, 부당이득의 반환범위 ········································· 647
제6편 친족상속법
사례 69 약혼해소의 경우 예물반환관계 ····················································································· 658
사례 70 부부재산제(夫婦財産制) ································································································· 662
사례 71 이혼에 따른 법률관계 ···································································································· 676
사례 72 부모와 자녀와의 관계: 친생자 추정과 인지의 요건 및 효과 ······································· 687
사례 73 자(子)와 부모의 이해상반행위 ······················································································ 695
사례 74 인지(認知)의 소급효, 공작물책임 ·················································································· 702
사례 75 한정승인(限定承認) ········································································································· 711
사례 76 상속회복청구권, 대습상속(代襲相續) ············································································· 716
색인 ······································································································································· 724
