전문, 대학교재, 변호사 /법무사 시험 등 대비
전면개정 8판을 내면서
2016년 제7판을 낸 후 무려 약 5년 만에 쫒기듯이 개정판을 낸다. 그사이 몸 담았던 학교에서 정년 퇴임도 하는 등 신상의 변화도 있었지만 필자의 게으름으로 작업이 더욱 늦어졌다. 전판이후에 수정할 부분도 많이 눈에 띄었을 뿐 아니라 최근 다른 교과서나 연구논문도 많이 출간되어 반영되어야 할 부분도 많아졌다.
2012년 제1회 변호사시험이 시작된지 10년이 넘어간다. 이번 판에서는 변호사시험 대비 뿐 아니라 Law School에서 민법의 이해에 첫걸음이 수월하도록 책을 가다듬는 것이 급선무였다. 이에 따라 서술의 차례도 주제의 중요도에 따라 전면 재배치하였 다. 즉, 법률행위론의 중요주제를 제2편 본론 앞쪽에 두고‘권리의 주체’와‘권리의 객체’부분을 뒤로 두었다. 독일의 민법총칙 교과서가 대부분 그렇게 배치하고 있다.
또한 이해하기 어려운 부분은 쉽게 풀어쓰고 어려운 한자는 가능한 줄여 한글화하 였다. 특히 가독성을 고려하여 각주는 줄이고 가능한 한 본문으로 편입하였다. 최근 민사특별법의 명칭이 수없이 수시로 바뀌고 있다. 이에 따라 새로운 법령??판례의 변화도 반영하였다. 새롭게 판례에서 문제된 쟁점은 기본사례 또는 예제에 사례화하여 이해를 돕고 판례는 2020년 판결까지 반영하였다.
법을 처음 배우는 자에게 민법총칙 교과서는 법학입문서로도 기능한다. 법학교육에서 민법총칙학습의 중요성은 더 이상 강조할 필요도 없을 것이다. 아무쪼록 이 책이 독자들의 민법 입문은 물론 민법학습 마무리에 큰 보탬이 되기를 기대한다.
점점 열악해지는 출판환경으로 인하여 개정판 내기가 더욱 어려워진 것이 현실이 다. 어려운 환경임에도 흔쾌히 출간을 허락하고 개정판에 심혈을 기울여 준 ‘네오고 시뱅크’의 정주형 사장님과 편집 실무자에게 감사드린다. 특히 정 사장님은 교육사 업에 바쁜데도 불구하고 책의 장정에서부터 내용 교정과 편집에 심혈을 기울여 주어 책의 가독성도 좋아졌고 신선해졌다. 또 책의 내용을 꼼꼼히 읽으며 보정하여 준 부산대 법학전문대학원의 박근웅 교수에게 이자리를 빌어 감사의 마음을 전한다. 정교 수는 성실성과 민법 전반에 대한 통찰력을 갖추었기에 앞으로 학문적으로 대성하기를 기대한다.
2021년 2월
한강이 보이는 마포 연구실에서 白泰昇 씀
제1편 서 론
제1장 총설
§1 법·사법·민법 ······································································································· 3
Ⅰ 법이란 무엇인가 ························································································· 3
Ⅱ 법과 다른 사회규범과의 관계 ············································································· 3
§2 민법의 의의 ············································································································ 7
Ⅰ 법질서의 일부로서의 민법 ··················································································· 7
Ⅱ 사법으로서의 민법 ······························································································· 7
Ⅲ 일반사법으로서의 민법 ························································································ 8
Ⅳ 실체법으로서의 민법 ···························································································· 9
Ⅴ 실질적 의미의 민법과 형식적 의미의 민법 ························································ 9
§3 민법의 법원 ············································································································ 9
Ⅰ 법원(法源)의 의의 ································································································ 9
Ⅱ 성문민법 ·············································································································· 11
Ⅲ 불문민법 ············································································································· 13
제2장 민법전의 성립과 민법의 기본원리
§4 민법전의 성립 ······································································································ 22
Ⅰ 총설 ···················································································································· 22
Ⅱ 우리 민법전의 성립 ··························································································· 22
Ⅲ 독일 민법전(Burgerliches Gesetzbuch: BGB) ·············································· 26
Ⅳ 프랑스 민법전(Code Civil) ··············································································· 29
Ⅴ 스위스 민법전 ···································································································· 30
Ⅵ 일본 민법전 ······································································································· 32
§5 민법의 기본원리 ··································································································· 35
Ⅰ 총설 ···················································································································· 35
Ⅱ 사적자치(私的自治)의 원칙 ················································································ 35
Ⅲ 사회적 형평의 원칙 ··························································································· 37
Ⅳ 신뢰보호의 원칙 ································································································ 39
Ⅴ 우리 민법의 문제점과 과제 ··············································································· 41
제3장 민법의 해석과 적용
§6 법의 적용 ············································································································· 45
Ⅰ 법의 적용의 의의 ······························································································ 45
Ⅱ 재판상 법의 적용 ······························································································ 45
§7 법의 해석 ·············································································································· 47
Ⅰ 법의 해석의 의의 ······························································································ 47
Ⅱ 해석의 목표 ······································································································· 47
Ⅲ 해석의 방법 ······································································································· 47
Ⅳ 해석의 기술 ······································································································· 49
Ⅴ 법의 틈의 보충 ··································································································· 51
Ⅵ 법의 발견 내지 형성(Rechtfindung, Rechtsfortbildung) ····························· 51
제2편 본 론
제1장 법률관계와 권리 · 의무
§8 법률관계 ··············································································································· 54
Ⅰ 의의 ··················································································································· 54
Ⅱ 내용 ···················································································································· 55
Ⅲ 호의관계 ············································································································· 55
Ⅳ 법률관계의 변동 ································································································ 56
§9 권리와 의무 ·········································································································· 57
Ⅰ 권리 ···················································································································· 57
Ⅱ 의무 ···················································································································· 59
§10 권리의 종류 ········································································································· 61
Ⅰ 내용에 의한 분류 ······························································································· 61
Ⅱ 작용에 의한 분류 ······························································································· 63
Ⅲ 기타의 분류 ······································································································· 64
§11 권리의 경합과 충돌 ···························································································· 66
Ⅰ 권리의 경합 ······································································································· 67
Ⅱ 권리의 충돌과 순위 ··························································································· 68
§12 권리의 행사와 의무의 이행: 신의칙과 권리남용 금지의 원칙 ···················· 70
Ⅰ 권리행사의 의의 ································································································ 70
Ⅱ 권리의 행사방법 ································································································ 70
Ⅲ 권리행사의 한계·제한 ······················································································ 71
Ⅳ 의무의 이행 ······································································································· 72
Ⅴ 신의성실의 원칙 ································································································· 72
Ⅵ 권리남용금지의 원칙 ························································································· 89
§13 권리의 보호 ········································································································ 95
Ⅰ 서설 ···················································································································· 95
Ⅱ국가구제(공력구제) ······························································································ 95
Ⅲ 사적 구제(사력구제) ·························································································· 97
제2장 권리의 변동
§14 총설 ···················································································································· 100
Ⅰ 법률관계의 변동 ······························································································ 100
Ⅱ 권리변동의 모습 ······························································································ 100
Ⅲ 권리변동의 원인 ······························································································· 101
§15 법률행위와 의사표시 ························································································ 103
Ⅰ 법률행위의 의의 ······························································································· 103
Ⅱ 연혁 ·················································································································· 103
Ⅲ 법률행위자유의 원칙과 그 수정 ······································································ 104
Ⅳ 의사표시 일반론 ······························································································· 105
Ⅴ 법률행위의 요건 ······························································································· 114
Ⅵ 법률행위의 종류 ······························································································· 116
§16 법률행위의 목적 ······························································································· 125
Ⅰ 의의 ·················································································································· 125
Ⅱ 목적의 확정 ······································································································ 126
Ⅲ 목적의 가능 ······································································································ 126
Ⅳ 목적의 적법 ······································································································ 128
Ⅴ 목적의 사회적 타당성 ······················································································ 139
§17 법률행위의 해석 ································································································ 157
Ⅰ 법률행위 해석의 필요성 ·················································································· 158
Ⅱ 법률행위 해석의 방법 ······················································································ 159
Ⅲ 법률행위 해석의 표준 ······················································································ 163
Ⅳ 법률행위의 해석과 착오와의 관계 ··································································· 166
Ⅴ 결어 ·················································································································· 170
§18 결함있는(비정상적) 의사표시 ··········································································· 173
Ⅰ 총설 ·················································································································· 173
Ⅱ 의사와 표시와의 불일치 ··················································································· 177
Ⅲ 사기·강박에 의한 의사표시(하자있는 의사표시) ··········································· 212
§19 의사표시의 효력발생 ························································································ 221
Ⅰ 문제의 소재 ······································································································ 221
Ⅱ 의사표시의 효력발생시기 ················································································ 222
Ⅲ 의사표시의 공시송달 ······················································································· 227
Ⅳ 의사표시의 수령능력(상대방에 관한 요건) ····················································· 227
§20 법률행위의 대리 ······························································································ 228
Ⅰ 총설 ················································································································· 228
Ⅱ 대리권(본인·대리인 간의 관계) ···································································· 234
Ⅲ 대리행위(대리인·상대방 간의 관계) ····························································· 252
Ⅳ 대리의 효과(본인·상대방 간의 관계) ···························································· 259
Ⅴ 복대리(復代理) ································································································· 260
Ⅵ 무권대리 ·········································································································· 262
§21 법률행위의 무효와 취소 ·················································································· 286
Ⅰ 개설 ················································································································· 287
Ⅱ 법률행위의 무효 ······························································································ 288
Ⅲ 법률행위의 취소 ······························································································ 299
§22 법률행위의 부관 ······························································································ 305
Ⅰ 서설 ················································································································· 306
Ⅱ 조건 ················································································································· 306
Ⅲ 기한 ··················································································································· 311
§23 기간 ··················································································································· 315
Ⅰ 기간의 의의 ······································································································ 315
Ⅱ 기간의 계산방법 ······························································································· 315
Ⅲ 기간계산의 구체적 예 ······················································································ 316
§24 소멸시효 ············································································································ 317
Ⅰ 총설 ·················································································································· 317
Ⅱ 소멸시효의 요건 ······························································································ 322
Ⅲ 소멸시효의 중단과 정지 ·················································································· 331
Ⅳ 소멸시효의 효력 ······························································································ 340
제3장 권리의 주체
§25 권리의 주체 총설 ···························································································· 346
Ⅰ 권리의 주체 ····································································································· 346
Ⅱ 민법상의 능력 개관 ························································································· 346
§26 자연인 ··············································································································· 348
Ⅰ 권리능력 ·········································································································· 348
Ⅱ 의사능력 ·········································································································· 363
Ⅲ 행위능력 ··········································································································· 367
Ⅳ 주소 ················································································································· 392
Ⅴ 부재와 실종 ····································································································· 395
§27 법인 ·················································································································· 408
Ⅰ 서설 ················································································································· 408
Ⅱ 법인의 설립 ····································································································· 434
Ⅲ 법인의 능력 ····································································································· 445
Ⅳ 법인의 기관 ····································································································· 457
Ⅴ 법인의 주소 ····································································································· 469
Ⅵ 정관의 변경 ····································································································· 470
Ⅶ 법인의 소멸 ····································································································· 473
Ⅷ 법인의 등기 ····································································································· 479
Ⅸ 법인의 감독 ····································································································· 481
Ⅹ 외국법인 ·········································································································· 482
제4장 권리의 객체
§28 권리의 객체 총설 및 물건 ············································································· 484
Ⅰ 총설 ················································································································· 484
Ⅱ 물건 ················································································································· 485
Ⅲ 동산과 부동산 ································································································ 492
Ⅳ 주물과 종물 ···································································································· 501
Ⅴ 원물과 과실 ····································································································· 503
색인 ····························································································································· 506