강해 계약법 1(로스쿨)
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실체법과 절차법을 함께 살펴보는 방식의 강해 계약법
앞서 민법상의 주요 전형계약을 다룬 계약법 Ⅱ를 출판하면서 종전 채권총론에 해당하는 부분도 계약법 Ⅰ로 함께 출판하고자 하였으나 사정이 여의치 않아 잠시 미뤄 두었다가 이번에 계약법 Ⅰ을 출간하게 되었다. 다만 본서는 채권총론의 모든 부분을 다루지는 않고 나름 주요 부분만을 뽑아 집중적으로 서술하고자 하였다. 특히 학생들이 가장 이해하기 어려워하는 영역이자 실체법과 절차법의 교차영역이어서 실무에서 중요하게 다루어지는 것은 물론 변호사시험에서 문제의 보고라고도 할 수 있는 채권자대위권과 채권자취소권 부분을 집중적으로 다루었다. 무엇보다도 절차법상의 채권자대위소송과 사해행위취소소송을 함께 살펴봄으로써, 이해의 편의를 제공함은 물론 실전에의 적응능력을 높이고자 하였다. 그리고 역시 변호사시험에서 자주 출제되는 영역인 부진정연대채무와 보증채무 부분도 강조하여 서술하였다. 학생들에게 생산적 도움이 되리라 믿는다.
앞서 민법상의 주요 전형계약을 다룬 계약법 Ⅱ를 출판하면서 종전 채권총론에 해당하는 부분도 계약법 Ⅰ로 함께 출판하고자 하였으나 사정이 여의치 않아 잠시 미뤄 두었다가 이번에 계약법 Ⅰ을 출간하게 되었다. 다만 본서는 채권총론의 모든 부분을 다루지는 않고 나름 주요 부분만을 뽑아 집중적으로 서술하고자 하였다. 특히 학생들이 가장 이해하기 어려워하는 영역이자 실체법과 절차법의 교차영역이어서 실무에서 중요하게 다루어지는 것은 물론 변호사시험에서 문제의 보고라고도 할 수 있는 채권자대위권과 채권자취소권 부분을 집중적으로 다루었다. 무엇보다도 절차법상의 채권자대위소송과 사해행위취소소송을 함께 살펴봄으로써, 이해의 편의를 제공함은 물론 실전에의 적응능력을 높이고자 하였다. 그리고 역시 변호사시험에서 자주 출제되는 영역인 부진정연대채무와 보증채무 부분도 강조하여 서술하였다. 학생들에게 생산적 도움이 되리라 믿는다.
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제1장 계약상의 채권 일반
1. 채권법 ·································13
2. 채권 ··································14
가. 의의 ····································14
나. 채권의 성질 ································15
다. 청구권과의 관계 ·····························16
라. 채권의 효력 ································17
3. 채권과 계약 ······························40
제2장 채권자대위권과 채권자대위소송
1. 일반 ··································45
가. 책임재산의 확보를 통한 채권자 보호제도 ·················45
나. 채권자대위권의 의의(제404조 제1항) ····················47
다. 채권자대위권의 존재 의의 ························47
라. 본질 ····································48
2. 피보전채권과 피대위채권 ·······················51
가. 피보전채권의 존재와 법원의 판단 ·····················52
나. 채권자대위권의 객체(목적) (피대위권리, 혹은 피대위채권) ············56
3. 채권자대위권의 유형과 보전의 필요성 유무 ··············62
가. 기준 : 본래형(금전채권)과 전용형(특정채권) ·················62
나. 본래형(채무자의 무자력 필요) ·························62
다. 전용형(채무자의 무자력 불요) ·························64
4. 채권자대위권의 행사 ··························70
가. 행사주체 ·································70
나. 행사방법 ·································71
다. 행사효과의 귀속 주체 ···························71
라. 행사범위 ·································74
마. 행사의 효력(채권자대위권의 행사와 채무자에의 고지) ··············76
5. 소송법상 관련 문제 ··························78
가. 채권자의 소송상 지위 ···························78
나. 기판력 ··································78
다. 집행력 ··································84
라. 증명책임과 법원의 판단 ··························85
마. 중복소송 여부 ·······························87
바. 제3채무자의 소송상의 지위(제3자의 채무자에 대한 항변권 행사) ········90
사. 소멸시효 항변 ·······························91
6. 채권자대위소송의 비용부담 ······················92
제3장 채권자취소권과 사해행위취소소송
1. 일반 ··································95
가. 채권자취소권의 의의(제406조 제1항) ····················95
나. 법적 성질(본질) ·······························96
다. 채권자취소권의 인정 근거 ························101
2. 채권자취소권의 요건(피보전채권의 존재+사해행위+채무자 등의 악의) ······103
가. 피보전채권 ································104
나. 사해행위 ·································116
다. 채무자 등의 악의(惡意, 사해의사) ······················136
3. 채권자취소권의 행사 ·························141
가. 행사방법 ·································141
나. 중복제소 여부 및 소의 이익 ·······················142
다. 소의 상대방(피고) ·····························145
라. 소송물(청구의 목적) ····························150
마. 행사범위 ·································152
바. 취소에 따른 반환방법(원상회복방법) ····················154
4. 채권자취소권 행사의 효과 ······················158
가. 모든 채권자를 위한 채무자의 일반재산으로의 회복(제407조) ·······158
나. 취소의 효력(상대적 효력설) ·························161
5. 채권자 취소소송에서의 수익자 등 제3자의 소멸시효 이익 원용 ····174
6. 채권자취소권의 행사기간(제406조) ···················176
가. 법적 성격 ································176
나. 취소소송과 반환청구소송의 관계 ·····················176
다. 전득자에 대한 청구 시의 주의점 ·····················17
라. 직권조사사항과 증명책임 ························178
마. 기산점 ··································180
바. 채무자의 자력회복과 채권자취소권의 소멸 여부 ·············181
7. 사해행위취소소송에서의 청구취지 작성 ················182
제4장 다수당사자의 채권관계
1. 일반 ·································189
가. 개념(수개의 채권ㆍ채무, 동일한 급부) ·····················189
나. 채권의 공동소유와의 관계 ························189
다. 유형 및 기능 ·······························192
2. 분할채권(또는 분할채무)관계 ·······················193
가. 의의(제408조) ·······························193
나. 분할채권관계의 효력 ···························196
3. 불가분채권(채무)관계 ··························20
가. 일반 ···································20
나. 불가분채권 ································201
다. 불가분채무 ································203
4. 연대채무 ·······························205
가. 일반 ···································205
나. 연대채무의 성립 ·····························207
다. 연대채무의 대외적 효력 ·························210
라. 연대채무의 대내적 효력(구상관계) ·····················215
마. 구상권의 제한(제426조) ··························218
바. 구상권의 확장(제427조) ··························22
5. 부진정연대채무 ····························26
가. 의의 ···································26
나. 부진정연대채무의 발생원인과 과실상계 ·················28
다. 부진정연대채무의 효력 ·························231
라. 채무의 중첩관계 ·····························239
6. 연대채권 ·······························242
7. 보증채무 ·······························242
가. 일반 ···································242
나. 보증채무의 성립 ·····························249
다. 보증채무의 내용(제429조, 제430조) ·····················25
라. 보증채무의 대외적 효력 ·························258
마. 보증채무의 대내적 효력(구상관계) ·····················268
바. 특수 보증 ································274
사. 보증채무와 소멸시효 판례 정리 ·····················290
제5장 채권양도와 채무인수
1. 채권양도 ·······························29
가. 채권의 유형 ·······························29
나. 채권양도의 의의 및 법적 성질 ······················30
다. 지명채권의 양도 ·····························302
라. 증권적 채권의 양도 ···························32
마. 저당권부채권의 양도 ···························323
바. 임차보증금반환채권의 양도 ·······················325
2. 채무인수 ·······························329
가. 일반 ···································329
나. 면책적 채무인수계약의 당사자 ······················30
다. 면책적 채무인수의 효과 ·························32
라. 병존적 채무인수(중첩적 채무인수) ·····················34
마. 이행인수 ·································37
바. 계약인수 ·································340
사. 계약가입 ·································342
참고문헌 ································344
1. 채권법 ·································13
2. 채권 ··································14
가. 의의 ····································14
나. 채권의 성질 ································15
다. 청구권과의 관계 ·····························16
라. 채권의 효력 ································17
3. 채권과 계약 ······························40
제2장 채권자대위권과 채권자대위소송
1. 일반 ··································45
가. 책임재산의 확보를 통한 채권자 보호제도 ·················45
나. 채권자대위권의 의의(제404조 제1항) ····················47
다. 채권자대위권의 존재 의의 ························47
라. 본질 ····································48
2. 피보전채권과 피대위채권 ·······················51
가. 피보전채권의 존재와 법원의 판단 ·····················52
나. 채권자대위권의 객체(목적) (피대위권리, 혹은 피대위채권) ············56
3. 채권자대위권의 유형과 보전의 필요성 유무 ··············62
가. 기준 : 본래형(금전채권)과 전용형(특정채권) ·················62
나. 본래형(채무자의 무자력 필요) ·························62
다. 전용형(채무자의 무자력 불요) ·························64
4. 채권자대위권의 행사 ··························70
가. 행사주체 ·································70
나. 행사방법 ·································71
다. 행사효과의 귀속 주체 ···························71
라. 행사범위 ·································74
마. 행사의 효력(채권자대위권의 행사와 채무자에의 고지) ··············76
5. 소송법상 관련 문제 ··························78
가. 채권자의 소송상 지위 ···························78
나. 기판력 ··································78
다. 집행력 ··································84
라. 증명책임과 법원의 판단 ··························85
마. 중복소송 여부 ·······························87
바. 제3채무자의 소송상의 지위(제3자의 채무자에 대한 항변권 행사) ········90
사. 소멸시효 항변 ·······························91
6. 채권자대위소송의 비용부담 ······················92
제3장 채권자취소권과 사해행위취소소송
1. 일반 ··································95
가. 채권자취소권의 의의(제406조 제1항) ····················95
나. 법적 성질(본질) ·······························96
다. 채권자취소권의 인정 근거 ························101
2. 채권자취소권의 요건(피보전채권의 존재+사해행위+채무자 등의 악의) ······103
가. 피보전채권 ································104
나. 사해행위 ·································116
다. 채무자 등의 악의(惡意, 사해의사) ······················136
3. 채권자취소권의 행사 ·························141
가. 행사방법 ·································141
나. 중복제소 여부 및 소의 이익 ·······················142
다. 소의 상대방(피고) ·····························145
라. 소송물(청구의 목적) ····························150
마. 행사범위 ·································152
바. 취소에 따른 반환방법(원상회복방법) ····················154
4. 채권자취소권 행사의 효과 ······················158
가. 모든 채권자를 위한 채무자의 일반재산으로의 회복(제407조) ·······158
나. 취소의 효력(상대적 효력설) ·························161
5. 채권자 취소소송에서의 수익자 등 제3자의 소멸시효 이익 원용 ····174
6. 채권자취소권의 행사기간(제406조) ···················176
가. 법적 성격 ································176
나. 취소소송과 반환청구소송의 관계 ·····················176
다. 전득자에 대한 청구 시의 주의점 ·····················17
라. 직권조사사항과 증명책임 ························178
마. 기산점 ··································180
바. 채무자의 자력회복과 채권자취소권의 소멸 여부 ·············181
7. 사해행위취소소송에서의 청구취지 작성 ················182
제4장 다수당사자의 채권관계
1. 일반 ·································189
가. 개념(수개의 채권ㆍ채무, 동일한 급부) ·····················189
나. 채권의 공동소유와의 관계 ························189
다. 유형 및 기능 ·······························192
2. 분할채권(또는 분할채무)관계 ·······················193
가. 의의(제408조) ·······························193
나. 분할채권관계의 효력 ···························196
3. 불가분채권(채무)관계 ··························20
가. 일반 ···································20
나. 불가분채권 ································201
다. 불가분채무 ································203
4. 연대채무 ·······························205
가. 일반 ···································205
나. 연대채무의 성립 ·····························207
다. 연대채무의 대외적 효력 ·························210
라. 연대채무의 대내적 효력(구상관계) ·····················215
마. 구상권의 제한(제426조) ··························218
바. 구상권의 확장(제427조) ··························22
5. 부진정연대채무 ····························26
가. 의의 ···································26
나. 부진정연대채무의 발생원인과 과실상계 ·················28
다. 부진정연대채무의 효력 ·························231
라. 채무의 중첩관계 ·····························239
6. 연대채권 ·······························242
7. 보증채무 ·······························242
가. 일반 ···································242
나. 보증채무의 성립 ·····························249
다. 보증채무의 내용(제429조, 제430조) ·····················25
라. 보증채무의 대외적 효력 ·························258
마. 보증채무의 대내적 효력(구상관계) ·····················268
바. 특수 보증 ································274
사. 보증채무와 소멸시효 판례 정리 ·····················290
제5장 채권양도와 채무인수
1. 채권양도 ·······························29
가. 채권의 유형 ·······························29
나. 채권양도의 의의 및 법적 성질 ······················30
다. 지명채권의 양도 ·····························302
라. 증권적 채권의 양도 ···························32
마. 저당권부채권의 양도 ···························323
바. 임차보증금반환채권의 양도 ·······················325
2. 채무인수 ·······························329
가. 일반 ···································329
나. 면책적 채무인수계약의 당사자 ······················30
다. 면책적 채무인수의 효과 ·························32
라. 병존적 채무인수(중첩적 채무인수) ·····················34
마. 이행인수 ·································37
바. 계약인수 ·································340
사. 계약가입 ·································342
참고문헌 ································344
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