민사소송법 주석서 제1판을 기획하셨던 이영섭 전 대법원장께서는 ‘민사소송법은 민사실체법에 관한 분쟁을 가리는데 관련되는 모든 법률을 연구하고 그 자체로서 고유의 목적을 추구하는 법률이다. 법률은 모두 그것이 적용될 것을 전제로 하고, 그것이 적용 되는 마지막 도량은 민사소송법이 규율하는 도량이다. 따라서 완전한 법률의 이론은 법정투쟁을 통한 실무훈련이 없고서는 불가능한 것이다. 그런데 민사실무에서 부딪쳐 보면 탁상에서는 도저히 생각지도 못한 소송법상의 난문제가 속출하여 괴롭힌 다. 민사소송법에 밝아야 법률에 밝다고 할 수 있다는 옛날부터의 내려오는 말도 있다.(중략) 판례는 불꽃 튀는 원·피고 기타 당사자들 사이의 대립하는 이해관계를 좋든 궂든 해결하고자 법관이 내리는 판단이다. 심오한 학구적인 입장에서 본다면 모자 라는 점도 많을 터 이지만 그 사건과 진지하게 대결하는 법관으로서는 처절하리만큼 성스러운 마음의 극한 상황에서 내리는 판단인 것이다. 판례는 법관에게는 영구히 남는 정신적 결정(結晶) 이다. 추상적인 법은 이 판례를 통하여 비로소 싱싱한 법이 되는 것이다. 이러한 의미에 서 판례는 살아있는 법인 것이다(註釋 民事訴訟法 제7판, 머리말에서 재인용).
변호사시험을 준비하는 입장에서도 민사법 선택형 문제의 경우 ‘다툼이 있으면 판례에 따름’이라는 전제가 있듯이, 판례가 정답이 된다. 그리고 사례형 문제의 경우 에도 기본적으로 판례를 변형하여 출제하므로, 판례에 대한 숙지가 고득점의 전제가 된다. 특히 최근의 추세가 최근 판례가 많이 출제되고 있는 경향이므로, 이를 대비하기 위하여 3개년 판례를 출간하게 되었다. 이 교재는 다음과 같은 특징이 있다.
1. 2017년 ~ 2020년 7월까지의 최근의 민사법 중요 판례는 모두 수록하였다. 특히 변호사 시험에서 출제될 수 있는 중요 판례는 2017년 前의 판례라고 하여도 수록을 하였다.
2. OX 문제의 형식으로 구성을 하였다. 변호사시험에서 선택형은 합격에 있어서 상당한 비중을 차지하고 있으므로, OX 지문의 형식으로 구성하여 실제 시험에서 판례가 어떻게 나올 수 있는지 예습이 가능하도록 하였다.
3. 교과서 목차에 따라 판례지문을 구성하였다. 따라서 공부를 한 수험생이라면 이 판례에각 단원의 어느 파트에서 문제가 되는지를 직관적으로 알 수 있도록 하였다.
이 책의 출판에 대해 신경 써 주신 정주형 대표님을 비롯한 네오고시뱅크 직원 분들 에게 감사드리고, 사랑하는 아내 권지은과 두 아이들에게 무한한 고마움을 전한다.
마지막으로 하늘에 계시는 아버지께 부끄럽지 않은 삶을 살 것을 스스로 약속하면서, 이 책으로 공부하는 모든 분들이 변호사시험 합격의 영광을 안고, 건강한 삶을 영위 하기를 간절히 기원해 본다.
2020. 7. 27
시흥동 寓居에서
편저자 김춘환 드림
? 민법
제1편 민법총칙
제1장 서설 ····································································································································· 1
제1절 민법의 의의, 법원 ································································································· 1
제2절 민법의 해석과 적용 ······························································································ 1
제3절 법률관계와 권리 ···································································································· 1
제4절 신의성실의 원칙 ···································································································· 1
제2장 권리의 주체 ······················································································································ 4
제1절 총설 ·························································································································· 4
제2절 자연인 ····················································································································· 4
제3절 법인 ························································································································· 5
제3장 권리의 객체 ···················································································································· 12
제4장 권리의 변동 ···················································································································· 12
제1절 총설 ························································································································ 12
제2절 법률행위 ················································································································ 12
제3절 의사표시 ················································································································ 17
제4절 법률행위의 대리 ································································································· 19
제5절 법률행위의 무효와 취소 ··················································································· 22
제6절 법률행위의 부관 ································································································· 23
제5장 기 간 ································································································································ 24
제6장 소멸시효 ·························································································································· 24
제2편 물권법
제1장 서론 ·································································································································· 36
제1절 서설 ······················································································································· 36
제2절 물권의 본질 ········································································································· 36
제3절 물권의 종류 ········································································································· 36
제4절 물권의 효력 ········································································································· 36
제2장 물권의 변동 ···················································································································· 36
제1절 총설 ······················································································································· 36
제2절 물권변동의 구성요소 ························································································· 36
제3절 부동산물권의 변동 ······························································································ 41
제4절 동산물권의 변동 ································································································· 41
제5절 입목등기와 명인방법에 의한 물권변동 ························································· 42
제6절 물권의 소멸 ········································································································· 42
제3장 기본물권 ·························································································································· 42
제1절 점유권 ··················································································································· 42
제2절 소유권 ··················································································································· 44
제4장 용익물권 ·························································································································· 57
제1절 총설 ························································································································ 57
제2절 지상권 ··················································································································· 57
제3절 지역권 ··················································································································· 59
제4절 전세권 ··················································································································· 59
제5장 담보물권 ························································································································· 60
제1절 총설 ······················································································································· 60
제2절 유치권 ··················································································································· 60
제3절 질권 ······················································································································· 62
제4절 저당권 ················································································································· 63
제6장 비전형담보물권 ·············································································································· 70
제3편 채권총론
제1장 채권의 목적 ···················································································································· 72
제2장 채권의 효력 ···················································································································· 72
제1절 이행지체와 기한이익의 상실 ············································································ 72
제2절 채무불이행에 대한 구제 ··················································································· 73
제3절 채권자지체 ··········································································································· 79
제4절 책임재산의 보전 ································································································· 79
제3장 수인의 채권자 및 채무자 ··························································································· 88
제1절 분할채권관계 ······································································································· 88
제2절 불가분채권과 불가분채무 ················································································· 88
제3절 연대채무 ··············································································································· 88
제4절 보증채무 ··············································································································· 90
제4장 채권의 양도와 채무인수 ······························································································ 93
제1절 채권양도 ··············································································································· 93
제2절 채무인수 ··············································································································· 96
제5장 채권의 소멸 ···················································································································· 97
제4편 채권각론
제1장 계약총론 ························································································································ 102
제1절 계약의 종류 ········································································································ 102
제2절 계약의 성립 ······································································································· 102
제3절 계약의 효력 ······································································································· 102
제4절 계약의 해제와 해지 ························································································· 103
제2장 계약각론 ························································································································ 104
제1절 전형계약의 분류 ······························································································· 104
제2절 증여 ····················································································································· 104
제3절 매매 ····················································································································· 104
제4절 교환 ····················································································································· 105
제5절 소비대차 ············································································································· 105
제6절 사용대차 ············································································································· 105
제7절 임대차 ················································································································· 106
제8절 고 용 ···················································································································· 111
제9절 도급 ······················································································································ 113
제10절 여행계약 ············································································································ 115
제11절 현상광고 ············································································································· 115
제12절 위 임 ·················································································································· 115
제13절 임치 ···················································································································· 115
제14절 조합 ···················································································································· 115
제15절 종신정기금 ········································································································ 117
제16절 화해 ···················································································································· 117
제3장 사무관리 ························································································································ 118
제4장 부당이득 ························································································································ 118
제5장 불법행위 ························································································································ 125
제5편 가족법
제1장 가족법 ···························································································································· 144
제2장 친족법 ···························································································································· 146
제1절 총칙 ······················································································································ 146
제2절 가족의 범위, 자의 성과 본 ············································································ 146
제3절 혼 인 ··················································································································· 148
제4절 부모와 자 ··········································································································· 154
제5절 친권 ····················································································································· 158
제6절 후견 ····················································································································· 160
제7절 삭제 ····················································································································· 160
제8절 부양 ····················································································································· 160
제3장 상속법 ···························································································································· 161
제1절 총칙 ······················································································································ 161
제2절 재산상속 ············································································································· 162
제3절 유언 ····················································································································· 165
제4절 유류분 ················································································································· 166
? 민사소송법
제1편 총론
제1장 민사소송 ························································································································· 171
제2장 민사소송법 ···················································································································· 172
제2편 소송의 주체
제1장 법원 ································································································································· 174
제2장 당사자(원고와 피고) ································································································· 178
제3편 제1심의 소송절차
제1장 소송의 개시 ·················································································································· 186
제2장 변론(심리) ····················································································································· 201
제1절 변론의 의의와 종류 ·························································································· 201
제2절 심리에 관한 제원칙 ························································································· 201
제3절 변론의 준비(기일전의 절차) ·········································································· 204
제4절 변론의 내용 ······································································································ 204
제5절 변론의 개시 ······································································································ 204
제6절 변론기일에 있어서의 당사자의 결석 ·························································· 205
제7절 기일·기간 및 송달 ························································································· 205
제8절 소송절차의 정지 ······························································································ 206
제3장 증거 ······························································································································· 208
제1절 총설 ····················································································································· 208
제2절 증명의 대상(요증사실) ···················································································· 208
제3절 불요증사실(제288조) ······················································································· 208
제4절 증거조사의 개시와 실시 ················································································· 210
제5절 자유심증주의 ····································································································· 212
제6절 증명책임 ············································································································· 213
제4편 소송의 종료
제1장 총설 ································································································································ 216
제2장 당사자의 행위에 의한 종료 ······················································································ 216
제3장 종국판결에 의한 종료 ································································································ 217
제1절 재판일반 ·············································································································· 217
제2절 판결의 부수적 재판 ························································································· 227
제5편 병합소송
제1장 병합청구소송(청구의 복수) ······················································································· 234
제2장 다수당사자소송(당사자의 복수) ··············································································· 236
제6편 상소심절차
제1장 총설 ································································································································ 246
제2장 항소 ······························································································································· 246
제3장 상고 ······························································································································· 250
제4장 항고 ································································································································ 251
제7편 재심절차 ··············································································································· 254
제8편 간이소송절차 ······································································································ 258
