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책소개
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■ 책 소개 ■
[2015년 전면개정판 머리말]
※ 2015년 제57회 사법시험 2차 민법 총평
해마다 그러하듯이 주제자체는 대체적으로 중요한 주제들이 출제되었습니다. 예를 들어 기존에 출제가 되지 않아 출제가 예상되었던 일괄경매청구권, 비법인사단의 법률관계, 대상청구권 등이 전면적으로 출제되었으며, 종래에 출제가 되었지만 반복적으로 출제되고 있는 표현대리, 유치권, 제366조의 법정지상권, 계약의 당사자 확정, 타인권리매매 및 무권리자의 처분행위, 부동산 이중매매구조, 상속재산분할협의 등은 올해에도 출제되었습니다.
다만 유류분반환청구권의 계산문제나 조합과 관련한 내용은 평소에 많이 접해보지 않은 문제들이어서 수험생들이 문제를 풀어나가기가 상당히 어려웠을 것으로 예상됩니다. 아울러 사실관계나 질문이 불분명한 경우가 다수 있어 사실관계 확정이나 질문을 어떻게 이해하느냐에 따라, 즉 출제자의 의도를 어떻게 파악하느냐에 따라 다양한 답안이 나올 것으로 예상됩니다. 즉, 변호사시험의 경우 사실관계를 상당히 상세하게 소개하고 질문도 구체적이고 명확한 경우가 대부분이라 논란이 적은 반면 아무래도 쟁점추출능력까지 요구하는 사법시험의 경우에는 사실관계를오히려 압축적으로 소개하는 경향이 있는데, 수험생의 입장에서는 아쉬운 부분이 아닐 수 없습니다. 그리고 금액과 날짜문제는 해마다 출제되는 만큼 정치하고 정확하게 판단할 필요가 있겠습니다.
※ 2015년판 개정판 특징
2015년 개정판의 경우
① 출제가능한 사례 및 판례연구를 15여개 정도 새롭게 소개하고 기존 사례 및 판례연구를 수정 및 보완하였으며
② 기존 판례를 대폭보강하고, 2015년 상반기 최신 판례까지 소개하였으나 출제가능성이 희박한 이론‧판례를 정리함으로써 페이지 수는 약 10page 정도 증가하는데 그쳤습니다.
본 개정판 작업은 작년판 출간 후 꾸준히 작업하였으나, 보다 완성도 높고 알찬 수험서가 되어야 한다는 과욕 덕에 출간이 많이 늦어졌습니다. 그 동안 개정판을 손꼽아 기다려온 수험생들에게 마음에 짐이 많았는데 그나마 만족스런 책 내용으로 보답할 수 있게 되어 다행으로 생각합니다.
아무쪼록 변화하는 법조계 및 수험환경에 고민하고 대처하고 있을 수험생 여러분들에게 희망이 될 수 있는 민법기본서가 되도록 더욱 치열하게 연구하고 집필할 것을 다짐해 봅니다.
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제1편 민법총칙
제1장 민법 서론 ··················································································································3
제1절 민법의 법원 ····························································································································3
제2장 법률관계와 권리의무 ·····························································································8
제1절 법률관계 ··································································································································8
제2절 신의성실의 원칙 ···················································································································15
제3장 권리의 주체 ········································································································· 29
제1절 권리주체 총설 ······················································································································29
제2절 자연인 ···································································································································29
제3절 법 인 ··································································································································· 58
제4장 권리변동 ··············································································································· 83
제1절 법률행위 총설 ···················································································································· 83
제2절 법률행위의 목적 ················································································································ 98
제4장 권리변동 ··············································································································· 83
제1절 법률행위 총설 ···················································································································· 83
제2절 법률행위의 목적 ················································································································ 98
제3절 의사표시 ····························································································································· 115
제4절 법률행위의 대리 ················································································································145
제5절 법률행위의 무효와 취소 ····································································································181
제6절 법률행위의 부관 ················································································································202
제5장 소멸시효 ············································································································· 210
제1절 총 설 ·································································································································· 210
서 설 소멸시효와 유사한 제도
제2절 소멸시효의 요건 ··············································································································· 213
소멸시효완성의 요건 대 행 기
대상적격 소멸시효의 대상이 될 수 있는 권리일 것
기산점 권리를 행사할 수 있음에도 불행사할 것
시효기간 권리불행사의 상태가 일정기간 계속될 것
판례연구 19 의사의 진료비채권 / 220
제3절 소멸시효의 중단과 정지 ···································································································221
제4절 소멸시효완성의 효과 ········································································································238
문제점 학설 및 판례
양설의 비교 시효완성의 범위
소멸시효이익의 포기 소멸시효의 남용
[사례연습] ························································································································246
사례 001 기본사례★ / 246 사례 002 기본사례★ / 251
사례 003 기본사례 / 255 사례 004 기본사례★ / 257
사례 005 종합사례★★ / 263 사례 006 기본사례 / 271
사례 007 기본사례 / 274 사례 008 기본사례★ / 278
사례 009 기본사례★ / 282 사례 010 기본사례★ / 286
사례 011 종합사례★ / 289 사례 012 종합사례★★ / 295
사례 013 기본사례★ / 304 사례 014 기본사례 / 308
사례 015 종합사례★ / 311 사례 016 기본사례★ / 319
사례 017 기본사례★ / 321 사례 018 기본사례★ / 325
사례 019 종합사례★ / 330 사례 020 종합사례★★ / 336
사례 021 기본사례★ / 342 사례 022 기본사례★ / 345
사례 023 종합사례★ / 348 사례 024 기본사례 / 353
사례 025 기본사례 / 355 사례 026 기본사례 / 357
사례 027 기본사례★ / 364 사례 028 기본사례★★ / 368
- 30 -
사례 029 기본사례★ / 373 사례 030 종합사례★ / 379
사례 031 기본사례★ / 385 사례 032 기본사례★ / 390
사례 033 기본사례 / 395 사례 034 종합사례★★ / 398
사례 035 기본사례★ / 405 사례 036 기본사례★ / 409
사례 037 기본사례★ / 412 사례 038 종합사례★★ / 415
제2편 채권총론
제1장 채권법 서론 ······································································································· 425
채 권 채 무
쟁 점 7 보호의무 / 426
판례연구 21 보호의무에 관한 판례의 태도(대부분 강학상 안전배려의무 위반에 해당) / 428
제2장 채권의 목적 ······································································································ 430
제1절 총 설 ································································································································· 430
제2절 목적에 의한 채권의 종류 ······························································································· 430
제3장 채권의 효력 ······································································································ 445
대내적 효력 대외적 효력
제1절 채무불이행의 유형 및 요건 ···························································································· 445
제2절 채무불이행의 효과 ·········································································································· 486
제3절 채권자지체 ······················································································································· 503
서 설 채권자지체의 본질
요 건 효 과
종 료
판례연구 29 채권자지체와 채무자의 책임 / 506
제4장 채권의 대외적 효력 ························································································ 507
제1절 책임재산의 보전 ··············································································································· 507
책임재산의 보전을 위해 민법이 정하는 제도
채권자대위권과 채권자취소권의 비교
제2절 제3자에 의한 채권침해 ·································································································· 543
서 설 제 자에 의한 채권침해의 모습
제 자의 채권침해에 대한 구제
제5장 수인의 채권자 및 채무자 ·············································································· 548
제1절 분할채권(채무)관계 ·········································································································· 548
의 의 성립 효 력
제2절 불가분채권관계 ··················································································································549
성 립 불가분채권의 효력
불가분채무의 효력
제3절 연대채무 ···························································································································· 551
제4절 보증채무 ··························································································································· 560
서 설 보증채무의 성립
보증채무의 내용 보증채무의 효력
쟁 점 12 수탁보증인의 구상권 / 566
제5절 연대보증 ··························································································································· 570
서 설 성 립
효 력
판례연구 34 연대보증인 상호 간의 구상관계 / 571
판례연구 35 주채무자의 구상채무와 다른 연대보증인들의 구상채무의 관계 / 573
판례연구 36 일부보증에서 보증인 상호 간의 구상권 행사 / 574
제6절 계속적 보증 ······················································································································ 576
서 설 보증인의 해지권
보증책임의 한도액 제한 보증채무의 상속성 제한
보증인 보호를 위한 특별법
제6장 채권양도와 채무인수 ······················································································ 583
제1절 채권양도 ···························································································································· 583
서 설 지명채권의 양도성
지명채권양도의 대항요건
쟁 점 13 채무자에 대한 대항요건 / 590
판례연구 37 임대차보증금반환채권이 양도된 경우의 법률관례 / 601
판례연구 38 담보목적의 채권양도(채권의 양도담보) / 602
제2절 채무인수 ··························································································································· 604
서 설 면책적 채무인수
병존적 채무인수 이행인수
계약인수
제7장 채권의 소멸 ······································································································· 612
제1절 변 제 ·································································································································· 612
제2절 대물변제 ···························································································································· 631
서 설 요 건
효 과 대물변제의 예약
제3절 변제공탁 ··························································································································· 635
서 설 요 건
변제공탁의 내용 공탁의 절차
변제공탁의 효과 공탁물의 회수
제4절 상 계 ································································································································· 642
서 설 상계적상
상계의 방법 상계의 효과
상계권의 남용
판례연구 39 지급금지채권을 수동채권으로 한 상계(제498조) / 647
제5절 경 개(更改) ······················································································································· 651
서 설 요 건
효 과
제6절 혼 동 ································································································································· 653
서 설 효 과
판례연구 40 혼동으로 소멸할 채권이 제3자에 대한 권리행사의 전제가 되는 경우(혼동에 의한 채권소
멸의 예외) / 654
[사례연습] ······················································································································ 657
사례 039 기본사례★ / 657 사례 040 기본사례★ / 660
사례 041 기본사례★★ / 664 사례 042 기본사례★ / 669
사례 043 기본사례 / 672 사례 044 기본사례★ / 675
사례 045 기본사례★ / 677 사례 046 기본사례 / 680
사례 047 기본사례★★ / 682 사례 048 기본사례★ / 687
사례 049 기본사례 / 692 사례 050기본사례★★ / 696
사례 051 기본사례★ / 700 사례 052 기본사례★ / 704
사례 053 기본사례★ / 707 사례 054 종합사례★★ / 711
사례 055 기본사례 / 720 사례 056 종합사례★★ / 727
사례 057 기본사례★★ / 735 사례 058 기본사례★ / 738
사례 059 기본사례★ / 742 사례 060 기본사례 / 746
사례 061 기본사례★ / 750 사례 062 기본사례★ / 755
사례 063 기본사례 / 758
제3편 채권각론
제1장 계약 총론 ·············································································································763
제1절 계약의 성립 ························································································································763
계약의 공통적인 성립요건으로서의 합의
청약과 승낙의 합치 계약성립의 특수한 모습
약관과 약관규제법
판례연구 41 무면허운전 면책조항의 유효성 여부의 판단근거와 일부무효의 이론 / 771
제2절 계약체결상의 과실책임 ·····································································································773
서 설 법적 성질
유 형
판례연구 42 제535조의 책임과 담보책임의 구별 / 777
쟁 점 14 계약교섭의 부당파기 / 778
제2장 계약의 효력 ·········································································································781
제1절 동시이행의 항변권 ·············································································································781
제2절 위험부담 ······························································································································781
서 설 채무자 위험부담주의
채권자의 귀책사유로 인한 급부불능
위험의 이전시기
판례연구 43 근로자의 비진의 사직의사와 임금청구 / 784
제3절 제3자를 위한 계약 ············································································································786
서 설 성립요건
효 력
제4절 계약의 해제(해지) ·············································································································793
제3장 각종의 계약 ······································································································· 818
제1절 증 여 ·································································································································· 818
증여의 의의 증여의 효력
특수한 증여
판례연구 46 부담부 증여 / 820
제2절 매 매 ································································································································· 822
제3절 교 환 ································································································································· 851
의의 및 법적 성질 효 력
제4절 소비대차 ···························································································································· 851
의 의 대물변제의 예약
준소비대차
제5절 사용대차 ··························································································································· 853
의 의 사용대차의 종료
제6절 임대차 ······························································································································· 855
의 의 성 립
효 력 임차권의 대항력
임차권의 양도와 임차물의 전대
판례연구 49 임차권의 대항력, 배신행위론 / 873
임대차보증금 임대차의 종료
판례연구 50 미등기주택 ‘대지’의 환가대금에 대한 소액임차인의 우선변제권 인정여부 / 879
쟁 점 17 임차인의 비용상환청구 및 부속물 지상물 매수청구 / 886
제7절 고 용 ································································································································· 894
의 의 사용자의 안전배려의무
제8절 도 급 ································································································································· 895
의 의 효 력
도급에서의 위험부담 도급의 종료
제작물공급계약
제9절 현상광고 ··························································································································· 907
의 의 법적 성질
성 립 효 과
우수현상광고
제10절 위 임 ······························································································································· 909
서 설 효 과
종 료
제11절 임 치 ································································································································· 912
의 의 소비임치
제12절 조 합 ································································································································ 916
의 의 조합의 법률관계
판례연구 51 조합채무와 조합원 개인의 채무 / 917
판례연구 52 조합재산의 처분·변경 / 919
제13절 종신정기금 ······················································································································· 921
제14절 화 해 ································································································································ 921
의 의 성립요건
효 력
판례연구 53 배상액합의 후의 후발손해에 대한 추가배상청구 가부 / 923
제4장 사무관리 ············································································································ 924
의 의 성립요건
효 과 준사무관리
제5장 부당이득 ············································································································ 928
의 의 성립요건
효 과 특수부당이득
쟁 점 18 불법원인급여 / 935
판례연구 54 불법원인급여의 반환청구 / 939
다수당사자 사이의 부당이득
제6장 불법행위책임 ···································································································· 946
제1절 일반불법행위책임 ············································································································· 946
제2절 특수한 불법행위 ·············································································································· 946
제3절 그 밖의 특수한 불법행위(불법행위법의 현대적 문제) ··············································· 963
제4절 불법행위의 효과 ·············································································································· 986
서 설 손해배상청구권의 내용
손해배상청구권의 소멸시효 손해배상액의 조정
쟁 점 19 과실상계 / 993
[사례연습] ······················································································································ 999
사례 064 종합사례★ / 999 사례 065 기본사례★ / 1005
사례 066 기본사례★★ / 1010 사례 067 기본사례★ / 1015
사례 068 기본사례★★ / 1018 사례 069 종합사례★ / 1023
사례 070 기본사례 / 1028 사례 071 기본사례★ / 1031
사례 072 기본사례★ / 1033 사례 073 기본사례★ / 1038
사례 074 종합사례★★ / 1042 사례 075 기본사례★ / 1051
사례 076 기본사례★ / 1054 사례 077 종합사례★★ / 1058
사례 078 기본사례★ / 1065 사례 079 기본사례★ / 1070
사례 080 기본사례★ / 1076 사례 081 기본사례 / 1079
사례 082 기본사례★ / 1082 사례 083 종합사례★★ / 1085
사례 084 기본사례 / 1092 사례 085 종합사례★★ / 1097
제4편 물권법
제1장 물권법 서론 ········································································································1107
제1절 물권의 본질 ·······················································································································1107
물권의 의의와 특성 일물일권주의
물권법정주의
제2절 물권의 객체 ·······················································································································1112
제3절 물권적 청구권(물권의 효력) ···························································································1120
서 설 성 질
물권적 청구권과 소멸시효 의 대상적격
발생요건
물권적 청구권에 있어서의 비용부담
다른 청구권과의 관계 물권적 청구권의 인정범위
제2장 물권의 변동 ·······································································································1125
제1절 물권변동 총설 ····················································································································1125
물권변동과 공시 물권변동의 구성요소
제2절 부동산물권의 변동과 등기 ······························································································1127
제3절 법률행위에 의한 부동산물권의 변동 ·············································································1146
법률행위와 등기 등기의 유효요건
쟁 점 20 중복등기 / 1147
판례연구 57 멸실회복등기의 중복 / 1152
실체관계에 부합하는 등기
중간생략등기 무효등기의 유용
판례연구 58 무효등기의 유용 / 1162
제4절 법률행위에 의하지 않은 부동산물권변동 ·····································································1164
서 설 적용범위
제5절 동산물권의 변동 ···············································································································1165
제6절 입목등기와 명인방법에 의한 물권변동 ·········································································1172
서 설 입목등기
명인방법
제7절 물권의 소멸 : 혼동 ··········································································································1174
의 의 소유권과 제한물권의 혼동
혼동이 되지 않는 경우 혼동의 효과
제3장 기본물권 ·············································································································1178
제1절 점유권 ·································································································································1178
제2절 소유권 ································································································································1187
제4장 용익물권 ·············································································································1265
제1절 지상권 ································································································································1265
서 설 관습법상 법정지상권
제 조 법정지상권
판례연구 64 공동저당의 목적인 기존 건물을 철거하고 신축한 경우 법정지상권의 성립 여부 / 1276
지상권의 존속기간 지상권의 효력
특수한 지상권
제2절 지역권 ································································································································1282
제3절 전세권 ·······························································································································1283
서 설 전세권의 취득 존속기간
전세권의 효력
판례연구 65 전세권을 목적으로 한 저당권 / 1288
전세권의 소멸
제5장 담보물권 ·············································································································1292
제1절 유치권 ································································································································1293
서 설 유치권의 성립요건
유치권의 효력 유치권의 소멸
판례연구 66 유치목적물이 경매된 경우 유치권의 효력 / 1302
제2절 질 권 ·································································································································1305
서 설 동산질권
사례연구 동산질권 / 1306
권리질권 특히 채권질권
사례연구 채권질권 / 1310
제3절 저당권 ································································································································1312
제 관 저당권의 성립 저당권의 부종성
성립상 부종성의 인정 여부 성립상 부종성의 완화
판례연구 65 저당권자와 채무자가 모두 제3자 명의로 마쳐진 근저당권설정등기의 효력 / 1313
제 관 저당권의 효력이 미치는 범위
피담보채권의 범위 목적물의 범위
물상대위
제4절 비전형담보물권 ················································································································1350
[사례연습] ······················································································································1369
사례 086 기본사례★★ / 1369 사례 087 기본사례★ / 1373
사례 088 기본사례 / 1377 사례 089 기본사례★★ / 1381
사례 090 종합사례★★ / 1385 사례 091 종합사례★★ / 1391
사례 092 기본사례★ / 1397 사례 093 기본사례★ / 1402
사례 094 기본사례★ / 1407 사례 095 기본사례 / 1409
사례 096 기본사례 / 1413 사례 097 종합사례★★ / 1417
사례 098 종합사례★★ / 1422 사례 099 기본사례★ / 1429
사례 100 기본사례★ / 1434 사례 101 기본사례★ / 1437
사례 102 종합사례★★ / 1442 사례 103 종합사례★ / 1445
사례 104 기본사례 / 1451 사례 105 기본사례★ / 1454
사례 106 기본사례★ / 1460 사례 107 종합사례★ / 1464
사례 108 종합사례★★ / 1470 사례 109 기본사례 / 1476
사례 110 기본사례 / 1481
제5편 친족상속법
제1장 친족법 ·················································································································1487
제1절 총 설 ··································································································································1487
친족의 종류 친족의 범위
제2절 가 족 ·································································································································1489
의 의 의 성과 본
제3절 혼 인 ·································································································································1490
제 관 약 혼
의 의 성립요건
효 과 약혼의 해제
약혼해제 파기 에 따른 예물의 반환청구권
제4절 부모와 자 ·························································································································1530
제 관 친생자
의 의 혼인 중의 출생자
혼인 외의 출생자
쟁 점 25 인지의 소급효에 따른 문제점 / 1534
제2장 상속법 ·················································································································1545
제1절 상 속 ··································································································································1545
제2절 유언 및 유류분 ················································································································1580
[사례연습] ······················································································································1591
사례 111 종합사례★★ / 1591 사례 112 기본사례★ / 1598
사례 113 기본사례★ / 1603 사례 114 종합사례★ / 1607
사례 115 기본사례★ / 1614 사례 116 기본사례 / 1618
사례 117 기본사례 / 1621 사례 118 종합사례★★ / 1624 |
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