Part 1 민법총칙

Chapter 1. 민법 통칙 ∙3

❚제1절 관습법 ························································· 3

❶관습법과 사실인 관습의 비교 ·························································································· 3

❚제2절 권리의 행사와 신의칙 ············································· 4

Ⅰ. 권리의 종류 ·····························································4

Ⅱ. 신의칙 ··································································5

❶ 의의 ·································································································································· 5

❷ 신의칙의 파생원칙과 권리남용금지의 원칙(금실사권) ···················································· 7

❸ 효과 ································································································································ 10

Chapter 2. 자연인 ∙11

❚제1절 권리능력 ·······················································11

❶ 태아의 권리능력(불상유인) ···························································································· 11

❷ 태아의 법적지위 ············································································································· 12

❸ 민법상 능력의 비교 ········································································································ 12

❚제2절 행위능력 ······················································ 13

❶ 제한능력자의 행위능력 비교 ·························································································· 13

❷ 성년후견심판 비교 ········································································································· 15

❸ 제한능력자 상대방의 확답을 촉구할 권리(최고권)･철회권･거절권의 비교 ··················· 16

❹ 속임수에 의한 취소권의 배제(제17조) ··········································································· 17

❚제3절 주소, 부재와 실종 ··············································· 17

Ⅰ. 주 소 ··································································17

Ⅱ. 부 재 ··································································18

❶ 법원의 부재자 재산관리인의 선임 및 재산관리의 종료 ················································ 18

❷ 부재자 재산관리인의 권한범위와 법원의 허가 ······························································ 19

❸ 법원이 선임한 부재자 재산관리인의 권한범위(제25조) ················································ 20

Ⅲ. 실종선고 ·······························································21

❶ 실종선고의 요건(제27조, 생기청공) ··············································································· 21

❷ 실종선고의 효과(제28조) ······························································································· 21

❸ 실종선고의 소급효 관련판례 ·························································································· 22

❹ 실종선고나 인정사망에 의하지 않은 사망의 인정여부 ················································· 22

❺ 실종선고 취소의 효과(제29조) ······················································································· 23

Chapter 3. 법 인 ∙24

❚제1절 법인의 설립 ···················································· 24

❶ 법인격 남용론 ················································································································ 24

❷ 사단법인의 설립과정 ······································································································ 24

❸ 조합, 비법인사단, 사단법인의 비교 ··············································································· 25

❹ 설립행위(정관작성) ········································································································ 26

❺ 재단법인의 정관보충과 정관변경 ··················································································· 27

❻ 재단법인 출연재산의 귀속시기 ······················································································ 28

❚제2절 법인의 능력 ··················································· 30

❶ 대표기관의 행위가 법인에게 귀속되기 위한 요건 ························································ 30

❷ 법인의 불법행위책임(제35조)과 사용자책임(제756조)의 비교 ······································ 32

❸ 법인의 사원 등의 책임 ·································································································· 33

❚제3절 법인의 기관 ··················································· 34

❚제4절 법인의 해산･청산 ··············································· 35

❶ 법인의 소멸 ···················································································································· 35

❷ 법인에 대한 감독 ··········································································································· 36

❚제5절 비법인사단 ···················································· 36

❶ 법인과 비법인사단에서의 대표권제한 ············································································ 36

❷ 총유물의 관리 및 처분행위, 보존행위 ··········································································· 37

❸ 고유한 의미의 종중과 종중유사의 비법인사단 ······························································ 39

❹ 사단법인과 종중에서의 임시총회 소집 비교 ································································· 40

❺ 총회소집절차의 하자 ······································································································ 40

❻ 교회의 분열 인정여부 ···································································································· 41

Chapter 4. 권리의 객체 ∙43

❶ 종물의 요건과 효과 ········································································································ 43

❷ 기 타 ······························································································································ 44

Chapter 5. 법률행위 ∙45

❚제1절 서 설 ························································· 45

❶ 권리변동의 모습 ············································································································· 45

❷ 법률행위의 분류 ············································································································· 46

❸ 의무부담행위(채권행위)와 처분행위(물권행위) ······························································ 47

❹ 법률행위의 성립요건과 효력요건 ··················································································· 48

❚제2절 법률행위의 목적 ················································ 49

❶ 확정성, 실현가능성 ········································································································ 49

❷ 적법성 ··························································································································· 49

❸ 반사회적 법률행위 ········································································································· 50

❹ 이중매매가 무효인 경우 법률관계 ················································································· 54

❺ 불공정한 법률행위 ········································································································· 56

❻ 권리남용과 불공정한 법률행위의 주관적 요건 ······························································ 57

❚제3절 법률행위의 해석 ················································ 58

❶ 법률행위의 해석방법 ······································································································ 58

Chapter 6. 의사표시 ∙61

❶ 의사표시의 구성요소 ······································································································ 61

❷ 의사표시의 불일치와 하자있는 의사표시 개요 ······························································ 62

❸ 비진의표시 ····················································································································· 62

❹ 차명대출 ······················································································································· 63

❺ 통정허위표시 ·················································································································· 64

❻ 착오에 의한 의사표시 ···································································································· 66

❼ 사기･강박에 의한 의사표시 ··························································································· 70

❽ 강박에 의한 증여 ··········································································································· 71

❾ 상대방 있는 의사표시의 효력발생시기 및 효과 ···························································· 72

이 책은 지난 3년여 간 ‘한국고시’에 연재했던 원고와 강의 자료를 정리한 수험서입니다. 시험은 그 내용을이해하고 정리하여 암기하는 것을 필수적으로 요구합니다. 그런데 민법은 그 내용이 방대하고 처음부터 끝까지 기능적으로 연결되어 있는 구조를 취하고 있습니다. 그리하여 수험생들이 가장 어려워하는 과목입니다.

이 책의 장점은 아래와 같습니다.

(1) 이 책은 철저히 수험생의 입장에서 민법의 체계를 잡아 시험에 대비할 수 있도록 관련 논점올 기본서 목차 하에 비교·정리하였습니다. 다만, 기본서에서는 관습법상 법정지상권은 지상권에서, 제366조의 법

정지상권은 저당권에서 기술하고 있으나 시험에서는 함께 출제됩니다. 따라서 이 책에서는 양자는 지상권이므로 지상권에서 함께 비교·정리하여 두었습니다. 그리고 기본서에서는 총유와 합유를 공동소유에서 공유와 함께 기술하고 있으나, 시험에서는 총유는 비법인사단과, 합유는 조합과 관련하여 함께 출제되므로 총유는 비법인사단에서, 합유는 조합에서 함께 공부할 수 있도록 하였습니다.

(2) 변호사와 변리사시험, 법원에서 주관하는 법원행정고등고시, 법무사, 법원승진, 법원직 시험 등에서 실제로 출제되는 조문과 판례를 중심으로 관련 논점을 비교·정리하여 도표로 작성해 두었습니다.

(3) 나무만 보고 숲은 보지 못하는 어리석음을 피하기 위해 필요한 부분에서는 전체 개요를 먼저 도표로 정리한 후 세부 내용을 정리하였습니다.

(4) 판례는 2017년 9월의 대법원 주요 판결까지 반영하였습니다. 그리고 인용된 판례는 필요한 경우 독서실등에서 스마트 폰으로 검색해 보실 수 있도록 판례번호를 남겨 두었습니다. 비교하여야 할 판례와 동지판례를 가능한 풍부하게, 구분하여 정리하였으므로 이해와 암기에 도움이 될 것으로 생각합니다.

(5) 민법을 정복하기 위해서 필요한 두문자를 표기해 두었습니다. 암기에 활용하시기 바랍니다.

눈으로 본 것을 마치 사진처럼 머릿속에 기억하는 포토메모리(photo memory)라는 개념이 있습니다. 시험에출제되는 민법의 주요 논점들을 도표로 정리한 이 책의 내용들을 모두 사진처럼 기억하여 준비하시는 시험에 합격하시기를 진심으로 기원합니다.

항상 챙겨주시는 이 복심 권사님과 박 진택 목사님, 치과의사 김 형준 형에게 감사드립니다. 수험생활을 함께 했고 지금은 법조계에서 맹활약 중인 변호사 김 상철 형, 부족한 저를 선배처럼 이끌어 주었던 멋진 친구 재상에게 고마움을 전합니다. 불철주야 노력하는 에이엠 펫의 대표 오 성철 군과 정화에게도 사업의 번창을빕니다. 그리고 이 책이 출간될 수 있도록 도와주신 법률저널의 대표 공 병익 님과 팀장 이 명신 님, 이 책의 편집을 맡아주신 조 성희 님, ‘한국고시’에 연재된 원고의 편집을 맡아주신 김 주희 님, 표지디자인을 해 주신 배 자영님께 감사드립니다.

박 병 택 올림