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상법사례 - ‘사례연구를 통한 쟁점의 이해’가 출간된 지 햇수로 어언 10년이 되었습니다. 그 동안 수험가에도 많은 변화가 있었습니다. 4회에 걸친 변호사시험을 통해 로스쿨 출신 법조인들이 본격적으로 배출되었고, 사법시험은 2017년 2차 시험을 끝으로 폐지될 예정입니다. 그 여파로 수험가에서는 사시생들을 위한 강좌개설이나 교재 발간이 예전만 못하게 되었습니다.
편저자는 2006년 본서 초판이 출간된 이래 현재에 이르기까지 개정판을 발간할 때마다 구판에서 부족하거나 보완할 점을 개선하고, 새로 나온 판례와 이론을 소개하는 등 업그레이드를 해왔고, 그 결과 본서가 대다수 사법시험 수험생뿐만 아니라 변호사시험을 준비하는 많은 독자들에게도 사랑을 받게 되었으며, 상당수 로스쿨이나 법과대학에서 수업교재로 활용되는 영광을 누리기에 이르렀습니다.
이 자리를 빌려 그간 독자들의 성원에 감사드리며, 아울러 아쉬운 작별인사를 올려야겠습니다. 이번 제6판의 개정 작업은 편저자가 하는 마지막 기회가 될 것 같습니다. 사법시험 제도가 2년 후 폐지될 예정이고, 그리고 변호사 시험을 준비하는 독자들을 위해서는 별도의 사례집( 로스쿨 상법사례 )을 발간하고 있는 상황에서 사법시험만을 위한 사례집은 더 이상 필요가 없기 때문입니다. 본서는 편저자의
강단에서의 시간을 처음부터 함께 해 온 저작물입니다. 편저자의 첫 번째 저작물이자 개인적으로 많은 애정이 담긴 본서의 최종판을 출간함에 있어서 감회가 새롭습니다.
이번 개정판을 출간을 준비하면서 이번이 마지막 기회라는 생각에 평소 교재에 담고 싶은 내용을 빠짐없이 수록하였습니다. 하지만 수험서로서 독자들의 눈높이를 벗어나지 않도록 그 양과 깊이를 조절하였습니다. 그 과정에서 책의 분량이 제5판보다 약 50쪽 가까이 증가되었습니다. 이 점 양해 바라며, 제6판의 주요 개정사항을 소개합니다.
첫째, 2014년 회사법 개정과 보험법 개정사항을 충실히 반영하였습니다. 특히 보험법 개정 내용들을 전달하기 위해 새로운 사례를 두 개 추가하였고 기존 해설도 세세하게 수정하였습니다.
둘째, 제5판 출간 이후 2015년 2월까지 약 2년여에 걸쳐 새로 나온 대법원 판례와 학계의 관심사가 되고 있는 쟁점 등을 분석·정리하고, 그 중에서 출제가능성이 있는 주요 쟁점을 최대한 사례로 구성하였습니다. 새롭게 수록된 사례는 모두 각종 모의고사를 통해 사전검증을 거쳤습니다. 한편 사시 기출문제는 기존 사례와 중복되는 논점이 대부분이어서 지면관계상 꼭 필요한 경우에 한하여 간단히 소개하였고, 오래된 기출문제는 해설을 축소하거나 과감히 삭제했습니다.
셋째, 이번 제6판은 수험교재로서의 최종 결정체가 되기 위해 노력하였습니다. 이를 위해 주요 쟁점 중 사례로 다루어지지 않은 논점이 없도록 최대한 노력하였습니다. 반면에 기존 사례의 해설을 좀 더 이해하기 편하게 정리하고 그 분량도 압축하도록 노력하였습니다. 뿐만 아니라 최근의 출제경향에 비추어 사례로서의 가치가 크지 않거나 논점이 중복되는 사례를 상당수 삭제하는 등 필요최소한으로 개편하였습니다.
제6판에서 새로이 추가 또는 수정된 사례는 다음과 같습니다.
사례 7번 <유제> [상호속용양수인의 책임-서울종합예술원 사건] 추가
사례 8번 [상사유치권] 수정
사례 19번 [명의개서의 효력, 주권발행 전 주식양도, 상호주] 추가
사례 19번 <유제> [주주명부의 효력, 실기주] 수정
사례 20번 [주권발행 전 주식의 이중양도] 추가
사례 20번 <기출> [주권발행 전 주식의 이중양도와 실기주] 수정
사례 23번 [주주총회결의하자, 주식매수선택권] 추가
사례 24번 <유제> [주식매수선택권] 삭제
사례 31번 [주식의 강제매도청구권, 1인회사의 법률관계, 감사의 지위] 추가
사례 33번 <기출해설> [2013년 제55회 사법시험 제1문 해설] 추가
사례 33번 <유제> [개시의무, 경업피지의무, 경영판단의 원칙] 수정
사례 43번 <판례연구> [융통어음과 이중무권의 항변] 추가
사례 46번 [어음행위와 무권대리] 수정
사례 64번 [보험설계사의 법적 지위, 실효약관, 음주운전면책약관] 수정
사례 71번 [단체보험, 승낙 전 보험사고, 적격피보험체] 추가
사례 72번 [타인의 질병보험과 탐지의무] 추가
위와 같은 노력을 통해 본서가 사법시험을 준비하는 독자들의 최종 동반자가 될 수 있으리라 기대해봅니다. 본서와 관련하여 수험생 여러분들의 의견이나 질문은 편저자의 메일을 통해 해결할 수 있기를 기대합니다(hey-1588@hanmail.net).
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제1편 상법총칙
01 상인의 개념·······························································································································4
02 상인자격의 취득시기와 상사매매특칙······················································································12
[유제] 상사매도인의 공탁ㆍ경매권 / 18
03 보험회사 영업소장 사건··········································································································22
[유제] 부분적 포괄대리권을 가진 사용인과 표현책임 / 28
04 유니텍 전자 사건····················································································································34
05 명의대여자 책임······················································································································48
[유제] 명의차용자의 피용자에 대한 책임 / 61
06 영업양도인의 의무와 상호권···································································································66
07 영업양도와 제3자의 보호········································································································72
[유제] 상호속용양수인의 책임-서울종합예술원 사건 / 77
제2편 상행위
[유제] 상사시효 / 83
08 상사유치권·······························································································································88
09 상호계산의 효력······················································································································96
[유제] 상호계산기간의 경과와 잔액채권 / 100
10 익명조합과 영업양도··············································································································104
11 위탁매매의 법률관계··············································································································114
12 운송인의 손해배상책임··········································································································120
[유제] 고가물 책임 / 127
[유제] 운송물처분청구권 / 133
13 운송인의 손해배상책임, 화물상환증의 효력(기출)·································································136
[유제] 화물상환증의 물권적 효력 / 142
[기출문제 요해] / 146
제3편 회사법
14 법인격부인론, 사실상 이사의 책임(기출)···············································································152
[유제] 사해출자 / 160
15 회사의 권리능력 제한············································································································166
16 설립중회사의 법률관계, 현물출자, 재산인수 등····································································174
17 가장납입·································································································································184
18 현물출자, 설립비용, 위장납입 등··························································································192
19 명의개서의 효력, 주권발행 전 주식양도, 상호주··································································204
[유제] 주주명부의 효력, 실기주 / 215
20 주권발행 전 주식의 이중양도·······························································································220
[기출문제 요해] / 229
21 자기주식취득의 제한·············································································································238
22 주식양도제한과 주권의 선의취득··························································································252
[유제] 약식질의 효력 / 261
23 주주총회결의하자, 주식매수선택권························································································266
24 주주총회 결의하자와 재량기각······························································································274
25 주식의 이중양도, 상호주, 집중투표 등·················································································282
26 주주총회결의 하자(종합)·······································································································290
[유제] 주주총회 소집의 철회·변경 / 300
27 종류주주총회·························································································································306
[기출문제 요해] / 315
28 이사회결의하자와 대표행위의 효력·······················································································322
29 공동대표이사, 표현대표·········································································································328
30 영업용 중요재산의 양도와 대표권 남용················································································338
31 주식의 강제매도청구권, 1인회사의 법률관계, 감사의 지위···················································348
[유제] 이사의 선임과 해임, 임기 / 358
[유제] 자기거래, 전단적 대표행위, 대표권남용, 평이사의 책임 / 363
32 이사의 손해배상책임, 자기거래(기출)····················································································372
33 상계에 의한 주금납입과 신주발행의 효력, 이사의 책임, 주식양도(기출)·····························380
[기출문제 요해] / 388
[유제] 개시의무, 경업피지의무, 경영판단의 원칙 / 393
34 합병, 신주발행의 하자, 이사의 직무대행··············································································402
[기출문제 요해] / 417
[기출문제 요해] / 422
35 이사의 임기, 신주인수권의 양도와 실권주···········································································430
36 현물출자와 신주인수권··········································································································440
37 전환사채발행의 무효·············································································································450
[기출문제 요해] / 457
38 위법한 주식배당····················································································································464
39 제3자배정에 의한 신주발행의 유효성, 정관변경, 회계장부열람청구권, 이중대표소송··········472
[유제] 대표소송 / 483
[유제] 신주발행의 부존재, 이사의 인수담보책임 / 486
제4편 어음 수표법
40 어음상 권리의 선의취득········································································································492
41 미성년자의 어음행위·············································································································502
42 어음이론································································································································510
43 어음항변·································································································································518
[유제] 이중무권의 항변 / 526
44 사기에 의한 어음행위의 취소, 변조자의 책임(기출)·····························································538
45 어음행위와 표현대리·············································································································544
46 어음행위와 무권대리·············································································································550
47 어음의 배서위조····················································································································558
[유제] 어음위조의 증명책임, 사용자책임 / 567
48 어음의 실질관계와 이행지체·································································································574
49 지급제시해태와 어음의 원인관계··························································································582
50 이득상환청구권(기출)············································································································588
51 자기앞수표와 이득상환청구권·······························································································598
52 백지어음의 부당보충·············································································································606
53 백지어음에 의한 권리취득과 행사·························································································612
[유제] 백지어음상 권리행사와 시효중단, 제권판결 / 620
54 피배서인란 말소와 배서의 불연속························································································630
[유제] 배서의 불연속 / 637
55 기한후배서·····························································································································644
56 숨은 추심위임배서·················································································································652
[기출문제 요해] / 657
57 환배서···································································································································664
58 상환청구, 발행지 미기재어음································································································670
59 어음보증································································································································680
60 수표의 사고신고, 선의취득과 제권판결과의 관계·································································690
61 어음이론, 수취인 백지어음과 기한후교부·············································································698
62 융통어음, 엄폐물법칙, 기한후배서························································································708
[기출문제 요해] / 714
제5편 보험 해상법
63 약관의 교부 설명의무와 고지의무의 관계···········································································718
64 보험설계사의 법적 지위, 실효약관, 음주운전면책약관·························································736
65 모형공룡 화재 사건···············································································································746
66 고지의무 위반과 보험사고의 인과관계··················································································756
67 타인을 위한 보험계약과 보험자대위·····················································································762
[유제] 일부보험의 경우 보험자대위 / 765
[기출문제 요해] / 769
68 보험목적의 양도로 인한 중복보험·························································································774
[유제] 영업양도에 의한 보험목적의 양도 / 783
69 손해방지비용과 방어비용·······································································································792
70 책임보험에 있어서의 제3자의 직접청구권············································································796
[기출문제 요해] / 803
[기출문제 요해] / 807
71 단체보험, 승낙 전 보험사고, 적격피보험체···········································································812
[기출문제 요해] / 817
72 타인의 질병보험과 탐지의무·································································································822
73 선박소유자의 책임 제한········································································································830
74 정기용선자의 지위·················································································································836
판례색인 ·······································································································································841 |
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