건축분쟁 소송실무(4판)(양장본 Hardcover)
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주요하자의 판정기준 중 균열하자 조사방법, 누수하자 조사방법, 조경수 규격미달 조사방법, 미시공 및 변경시공 조사방법, 옹벽하자 판단기준 및 조사방법?보수비용 산정방법, 조명설비 보수비용 산정방법, 공기조화설비 냉방설비 보수비용 산정방법, 급배수 위생설비 보수비용 산정방법, 통신신호 등의 설비 보수비용 산정방법, 가전기기 보수비용 산정방법 등의 내용 및 건설공사의 하자담보책임에 관한 운영 지침을 새로이 추가하였고, 그 외 이론적인 부부에 대하여는 기성고 및 추가공사비, 명의대여자의 책임, 감리자의 책임, 지연손해금의 기산일, 도급인의 대위변제, 하자보수비 산정방법 등에 관한 내용 및 관련 핵심 판례들을 새롭게 추가하여 전편에서 부족하다고 판단된 부분을 보강하는데 주안점을 두었다.
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제1장 건설분쟁
제1절 건설분쟁의 의의 및 성격_ 3
Ⅰ. 건설분쟁의 의의·································································································· 3
Ⅱ. 건설분쟁의 성격·································································································· 4
제2절 건설관련 분쟁의 형태 및 특성_ 5
Ⅰ. 건물의 건축에 관한 분쟁의 형태············································································· 5
Ⅱ. 건축생산시스템의 특수성에서 발생하는 분쟁의 특성··················································· 5
Ⅲ. 대상의 성질과 당사자의 의식에 근거하는 분쟁의 특성·················································7
제3절 건축관계소송의 심리상의 모든 문제_ 8
Ⅰ. 심리실무에 있어서의 문제점···················································································8
1. 기술적 측면과 전문적 식견의 도입····································································8
2. 쟁점의 복잡성, 방대성·····················································································8
3. 사실인정의 곤란성·························································································· 9
Ⅱ. 건축관계소송의 심리상의 유의점··········································································· 10
1. 쟁점의 복잡성 방대성에의 대처······································································ 10
가. 하자를 주장하는 경우의 법률구성_ 10 나. 하자의 주장방법_ 11
2. 사실인정의 곤란함 극복과 효율적인 증거 조사················································· 12
제4절 재판 외 분쟁해결 방법_ 14
Ⅰ. 의 의············································································································· 14
Ⅱ. 건설분쟁조정위원회···························································································· 14
1. 설립근거와 구성··························································································· 14
가. 설립근거_ 14 나. 구 성_ 15
2. 조정대상······································································································15
3. 조정절차 및 조정의 효과··············································································· 15
Ⅲ. 환경분쟁조정위원회···························································································· 16
1. 설립근거······································································································16
2. 조정대상······································································································16
가. 중앙환경분쟁위원회의 조정대상_ 16
나. 지방환경분쟁조정위원회의 조정대상_ 17
3. 조정절차 및 조정의 효과··············································································· 17
Ⅳ. 건설하도급분쟁조정협의회····················································································17
1. 설립근거와 구성··························································································· 17
2. 조정대상······································································································18
3. 조정절차 및 조정의 효과··············································································· 18
Ⅴ. 공정거래위원회··································································································26
1. 설립근거······································································································26
2. 심사대상······································································································26
가. 공정거래법 적용대상이 아닌 행위유형_ 26 나. 하도급법 적용대상이 아닌 유형_ 27
다. 약관심사의 대상이 아닌 행위유형_ 27
3. 시정?권고조치······························································································ 28
Ⅵ. 하자심사?분쟁조정위원회····················································································· 28
1. 설치근거······································································································28
2. 심사?조정대상······························································································ 28
3. 조정의 효력································································································· 28
Ⅶ. 법원의 민사조정제도···························································································29
제 2 장 건설관련 보전처분
제1절 서 론_ 35
제2절 가 압 류_ 36
Ⅰ. 가압류의 의의··································································································· 36
Ⅱ. 가압류의 종류··································································································· 36
Ⅲ. 관 할············································································································· 36
Ⅳ. 피보전권리········································································································37
1. 금전채권이나 금전으로 환산할 수 있는 채권일 것············································· 37
2. 청구권이 성립하여 있을 것············································································ 37
3. 통상의 강제집행에 적합한 권리일 것·······························································38
Ⅴ. 보전필요성········································································································38
Ⅵ. 가압류 재판 및 집행상 유의사항··········································································· 38
1. 서면심리······································································································38
2. 소명방법······································································································39
3. 담 보·········································································································39
4. 가압류 결정································································································· 39
가. 가압류결정시 주의할 사항_ 39 나. 해방공탁금의 표시_ 40
5. 가압류 결정의 집행·······················································································55
6. 가압류 절차에서의 조정?화해········································································· 57
7. 가압류 결정에 대한 구제방법········································································· 57
가. 즉시항고_ 57 나. 가압류 이의?취소_ 57
제3절 가 처 분_ 61
Ⅰ. 의 의············································································································· 61
Ⅱ. 가처분의 종류··································································································· 61
1. 다툼의 대상에 관한 가처분(민사집행법 제300조 제1항)····································· 61
2. 임시의 지위를 정하기 위한 가처분(민사집행법 제300조 제2항)···························62
Ⅲ. 관 할············································································································· 62
1. 사물관할······································································································62
2. 토지관할······································································································63
Ⅳ. 당사자 적격······································································································ 64
1. 다툼의 대상에 과한 가처분············································································ 64
2. 임시의 지위를 정하기 위한 가처분··································································64
Ⅴ. 피보전권리········································································································65
1. 권리관계가 현존할 것····················································································65
2. 권리관계의 다툼이 있을 것············································································ 66
Ⅵ. 보전의 필요성··································································································· 67
Ⅶ. 심리절차의 특징································································································ 68
1. 심문절차······································································································68
2. 소명방법······································································································68
Ⅷ. 담 보············································································································· 70
Ⅸ. 가처분 결정········································································································70
1. 결정시 주의할 사항·······················································································70
2. 대체집행명령 병기의 허부··············································································71
3. 공시명령의 허부··························································································· 72
4. 심리기간 중 공사의 임의 중지 문제································································ 72
Ⅹ. 가처분 재판의 집행···························································································· 73
1. 서 론·········································································································73
2. 서울중앙지방법원의 결정례············································································ 74
가. 서울중앙지방법원 2006. 3. 16.자 2006타기476 결정_ 75
나. 서울중앙지방법원 2006. 11. 16.자 2006타기3707 결정_ 75
다. 서울중앙지방법원 2007. 8. 31.자 2007타기2282 결정_ 75
라. 서울중앙지방법원 2008. 9. 2.자 2008타기2548 결정_ 76
마. 서울중앙지방법원 2008. 11. 11.자 2008타기2838 결정_ 76
바. 서울중앙지방법원 2008. 11. 13.자 2008타기3272 결정 등_ 76
사. 서울고등법원 2009. 4. 29.자 2008라2363 결정(항고심 판단)_ 76
아. 사생활의 은밀이 침해될 염려가 공사중지가처분에 대한 보전의 필요성으로
인정된 사례_ 78
자. 주거환경 침해와 인격권에 기한 방해배제청구권_ 78
차. 심굴착공공사로 인한 토지침해로 인한 공사중지_ 78
카. 사생활침해를 원인으로 한 공사중지_ 79
ⅩⅠ. 가처분 절차에서의 조정?화해··············································································90
ⅩⅡ. 가처분 결정에 대한 구제방법··············································································91
1. 즉시항고······································································································91
2. 가처분 이의?취소··························································································92
3. 집행정지······································································································94
ⅩⅢ. 건설관련 가처분의 유형····················································································· 96
1. 공사금지가처분·····························································································96
가. 토지의 소유권, 점유권, 이용권, 담보권에 기한 공사금지가처분_ 96
나. 소유권에 기한 공사금지가처분 사례_ 99
다. 유치권에 기한 공사금지가처분 사례_ 102
라. 저당권에 기한 공사금지가처분 사례_ 103
마. 그 밖의 담보권, 이용권 등에 기한 공사금지가처분 사례_ 104
바. 인접 토지?건물 소유자의 물권적 청구권에 기한 공사금지가처분_ 105
사. 상린관계에 기한 공사금지가처분_ 109
아. 그 밖의 상린관계에 기한 공사금지가처분 사례_ 112
자. 일조권?조망권 등에 기한 공사금지가처분_ 112
차. 도급계약 등과 관련된 공사금지가처분_ 125
카. 집합건물 내에서의 공사금지가처분_ 126
타. 기타 비전형적인 공사금지가처분_ 130
파. 증거보전이나 행정행위의 금지 등을 구하는 공사금지가처분_ 132
2. 공사방해금지가처분····················································································· 132
가. 일반론_ 132 나. 구체적 사례_ 136
3. 공사속행가처분···························································································138
제 3 장 건설공사도급계약일반론
제1절 건설공사도급계약의 체결_ 141
Ⅰ. 건설공사도급계약의 의의 및 성격········································································ 141
1. 건설공사도급계약························································································141
가. 의 의_ 141 나. 도급계약의 원칙_ 141
2. 건설공사도급계약의 법적 성질······································································ 143
3. 건설공사도급계약의 종류············································································· 145
가. 공사의 수행방식에 따른 분류_ 145 나. 대가의 지급방식에 따른 분류_ 149
다. 계약의 체결방식에 따른 분류_ 151 라. 계약도서_ 152
Ⅱ. 수급인의 의무································································································· 156
1. 일을 완성할 의무························································································156
2. 목적물의 인도의무······················································································ 157
3. 완성된 건물의 소유권 귀속·········································································· 157
가. 문제의 소재_ 157 나. 학설 및 판례_ 158
4. 하도급과 소유권 귀속·················································································· 160
가. 문제점_ 160 나. 판례의 태도_ 160
5. 미완성 건물을 제3자가 완공한 경우······························································ 161
가. 문제점_ 161 나. 판례의 태도_ 162
6. 건축허가 명의를 대여한 경우······································································· 165
가. 문제점_ 165 나. 판례의 태도_ 165
7. 담보책임····································································································168
가. 의의 및 법적 성격_ 168 나. 담보책임의 요건_ 168
다. 책임의 내용_ 170 라. 하자담보책임기간_ 171
Ⅲ. 도급인의 의무································································································· 172
1. 보수지급의무······························································································172
2. 목적물 수령의무························································································· 174
3. 부수적 의무······························································································· 174
4. 협력의무····································································································175
Ⅳ. 도급에서의 위험부담························································································· 176
1. 채무자 위험부담주의··················································································· 176
2. 위험의 이전시기························································································· 178
3. 위험부담에 관한 특약·················································································· 178
제2절 건설계약의 해제_ 179
Ⅰ. 해제권 일반론································································································· 179
1. 문 제 점····································································································179
2. 건설계약 해제와 소급효 제한······································································· 179
3. 법정해제권·································································································181
가. 이행지체에 의한 해제_ 181 나. 법정해제의 효과_ 184
4. 약정해제권·································································································187
5. 합의해제····································································································188
6. 토지공작물의 특칙······················································································ 188
Ⅱ. 일의 완성 전 도급인의 임의해제권·······································································189
1. 임의해제권의 인정이유················································································ 189
2. 임의해제권의 행사시기················································································ 190
3. 효 과·······································································································190
가. 원 칙_ 190 나. 대금감액청구_ 190
Ⅲ. 도산과 해제권································································································· 192
1. 도급인이 파산한 경우의 수급인의 해제권······················································· 192
2. 수급인이 파산한 경우의 도급인의 해제권······················································· 193
3. 회생절차가 개시된 경우··············································································· 194
4. 건설산업기본법상 해지권············································································· 194
가. 도급인의 해지권_ 194 나. 수급인의 해지권_ 194
Ⅳ. 불안의 항변권································································································· 195
제 4 장 건설분쟁의 당사자
제1절 도급인 및 수급인_ 199
Ⅰ. 당사자의 확정································································································· 199
Ⅱ. 문제가 되는 경우····························································································· 199
1. 명의대여····································································································199
가. 문제점_ 199 나. 명의대여의 판단기준_ 200
다. 행위의 효력_ 204 라. 명의대여자의 책임_ 205
2. 현장소장····································································································209
가. 현장소장의 정의_ 209 나. 현장소장의 업무_ 209
다. 현장소장의 법적 지위_ 210 라. 현장소장의 업무범위_ 210
마. 현장소장이 한 행위의 회사에 대한 효력_ 211
제2절 공동도급인?공동수급인(공동수급체)_ 213
Ⅰ. 공동도급인······································································································213
1. 의 의·······································································································213
2. 공동도급인의 공사대금 채무의 성격·······························································213
Ⅱ. 공동수급체······································································································214
1. 서 론·······································································································214
가. 개 념_ 214 나. 공동계약의 특성_ 215
2. 운영형태 및 법적 성격················································································ 215
가. 운영형태_ 215
나. 건설공사공동수급체의 법적 성격_ 216
다. 공동수급표준협정서의 법적 성질_ 227
3. 건설공사공동수급체의 공사대금채권 관련 법률문제··········································229
가. 문 제 점_ 229 나. 발주자에 대한 공사대금 청구_ 230
다. 공동수급체의 책임(시공 및 하자담보책임)_ 234
라. 선급금 반환채무_ 235
마. 공동이행방식의 공동수급체와 하수급인 등의 관계_ 236
사. 공동수급체 구성원 사이의 공동원가분담금_ 238
4. 공사대금채권에 대한 제3자의 강제집행··························································239
가. 문 제 점_ 239
나. 강제집행 성립 여부에 대한 논의_ 240
5. 잔존구성원의 공사대금 청구········································································· 241
6. 가장공동수급체···························································································242
가. 의 의_ 242 나. 형식적 구성원의 책임_ 242
다. 가장 공동수급체 구성원에 대한 제재_ 243
제3절 하수급인_ 244
Ⅰ. 하도급 일반론································································································· 244
1. 하도급의 의의 및 법적 성질········································································· 244
가. 의 의_ 244 나. 법적 성격_ 244
2. 하도급의 제한···························································································· 245
가. 당사자의 특약 또는 일의 성질에 의한 제한_ 245
나. 건설산업기본법에 의한 하도급 제한_ 245
3. 하도급의 공정화를 위한 규정······································································· 249
가. 목 적_ 249 나. 하도급법상의 규정_ 252
다. 건설산업기본법상의 규정_ 261
Ⅱ. 하수급인의 행위로 인한 책임··············································································263
1. 도급인에게 손해가 발생한 경우·····································································263
가. 원수급인의 책임_ 263 나. 하수급인의 책임_ 264
2. 제3자에 대한 불법행위책임·········································································· 265
가. 원수급인의 책임_ 265 나. 하수급인의 책임_ 267
다. 도급인의 책임_ 267
Ⅲ. 하도급대금의 직접지급······················································································ 268
1. 의의 및 근거····
제1절 건설분쟁의 의의 및 성격_ 3
Ⅰ. 건설분쟁의 의의·································································································· 3
Ⅱ. 건설분쟁의 성격·································································································· 4
제2절 건설관련 분쟁의 형태 및 특성_ 5
Ⅰ. 건물의 건축에 관한 분쟁의 형태············································································· 5
Ⅱ. 건축생산시스템의 특수성에서 발생하는 분쟁의 특성··················································· 5
Ⅲ. 대상의 성질과 당사자의 의식에 근거하는 분쟁의 특성·················································7
제3절 건축관계소송의 심리상의 모든 문제_ 8
Ⅰ. 심리실무에 있어서의 문제점···················································································8
1. 기술적 측면과 전문적 식견의 도입····································································8
2. 쟁점의 복잡성, 방대성·····················································································8
3. 사실인정의 곤란성·························································································· 9
Ⅱ. 건축관계소송의 심리상의 유의점··········································································· 10
1. 쟁점의 복잡성 방대성에의 대처······································································ 10
가. 하자를 주장하는 경우의 법률구성_ 10 나. 하자의 주장방법_ 11
2. 사실인정의 곤란함 극복과 효율적인 증거 조사················································· 12
제4절 재판 외 분쟁해결 방법_ 14
Ⅰ. 의 의············································································································· 14
Ⅱ. 건설분쟁조정위원회···························································································· 14
1. 설립근거와 구성··························································································· 14
가. 설립근거_ 14 나. 구 성_ 15
2. 조정대상······································································································15
3. 조정절차 및 조정의 효과··············································································· 15
Ⅲ. 환경분쟁조정위원회···························································································· 16
1. 설립근거······································································································16
2. 조정대상······································································································16
가. 중앙환경분쟁위원회의 조정대상_ 16
나. 지방환경분쟁조정위원회의 조정대상_ 17
3. 조정절차 및 조정의 효과··············································································· 17
Ⅳ. 건설하도급분쟁조정협의회····················································································17
1. 설립근거와 구성··························································································· 17
2. 조정대상······································································································18
3. 조정절차 및 조정의 효과··············································································· 18
Ⅴ. 공정거래위원회··································································································26
1. 설립근거······································································································26
2. 심사대상······································································································26
가. 공정거래법 적용대상이 아닌 행위유형_ 26 나. 하도급법 적용대상이 아닌 유형_ 27
다. 약관심사의 대상이 아닌 행위유형_ 27
3. 시정?권고조치······························································································ 28
Ⅵ. 하자심사?분쟁조정위원회····················································································· 28
1. 설치근거······································································································28
2. 심사?조정대상······························································································ 28
3. 조정의 효력································································································· 28
Ⅶ. 법원의 민사조정제도···························································································29
제 2 장 건설관련 보전처분
제1절 서 론_ 35
제2절 가 압 류_ 36
Ⅰ. 가압류의 의의··································································································· 36
Ⅱ. 가압류의 종류··································································································· 36
Ⅲ. 관 할············································································································· 36
Ⅳ. 피보전권리········································································································37
1. 금전채권이나 금전으로 환산할 수 있는 채권일 것············································· 37
2. 청구권이 성립하여 있을 것············································································ 37
3. 통상의 강제집행에 적합한 권리일 것·······························································38
Ⅴ. 보전필요성········································································································38
Ⅵ. 가압류 재판 및 집행상 유의사항··········································································· 38
1. 서면심리······································································································38
2. 소명방법······································································································39
3. 담 보·········································································································39
4. 가압류 결정································································································· 39
가. 가압류결정시 주의할 사항_ 39 나. 해방공탁금의 표시_ 40
5. 가압류 결정의 집행·······················································································55
6. 가압류 절차에서의 조정?화해········································································· 57
7. 가압류 결정에 대한 구제방법········································································· 57
가. 즉시항고_ 57 나. 가압류 이의?취소_ 57
제3절 가 처 분_ 61
Ⅰ. 의 의············································································································· 61
Ⅱ. 가처분의 종류··································································································· 61
1. 다툼의 대상에 관한 가처분(민사집행법 제300조 제1항)····································· 61
2. 임시의 지위를 정하기 위한 가처분(민사집행법 제300조 제2항)···························62
Ⅲ. 관 할············································································································· 62
1. 사물관할······································································································62
2. 토지관할······································································································63
Ⅳ. 당사자 적격······································································································ 64
1. 다툼의 대상에 과한 가처분············································································ 64
2. 임시의 지위를 정하기 위한 가처분··································································64
Ⅴ. 피보전권리········································································································65
1. 권리관계가 현존할 것····················································································65
2. 권리관계의 다툼이 있을 것············································································ 66
Ⅵ. 보전의 필요성··································································································· 67
Ⅶ. 심리절차의 특징································································································ 68
1. 심문절차······································································································68
2. 소명방법······································································································68
Ⅷ. 담 보············································································································· 70
Ⅸ. 가처분 결정········································································································70
1. 결정시 주의할 사항·······················································································70
2. 대체집행명령 병기의 허부··············································································71
3. 공시명령의 허부··························································································· 72
4. 심리기간 중 공사의 임의 중지 문제································································ 72
Ⅹ. 가처분 재판의 집행···························································································· 73
1. 서 론·········································································································73
2. 서울중앙지방법원의 결정례············································································ 74
가. 서울중앙지방법원 2006. 3. 16.자 2006타기476 결정_ 75
나. 서울중앙지방법원 2006. 11. 16.자 2006타기3707 결정_ 75
다. 서울중앙지방법원 2007. 8. 31.자 2007타기2282 결정_ 75
라. 서울중앙지방법원 2008. 9. 2.자 2008타기2548 결정_ 76
마. 서울중앙지방법원 2008. 11. 11.자 2008타기2838 결정_ 76
바. 서울중앙지방법원 2008. 11. 13.자 2008타기3272 결정 등_ 76
사. 서울고등법원 2009. 4. 29.자 2008라2363 결정(항고심 판단)_ 76
아. 사생활의 은밀이 침해될 염려가 공사중지가처분에 대한 보전의 필요성으로
인정된 사례_ 78
자. 주거환경 침해와 인격권에 기한 방해배제청구권_ 78
차. 심굴착공공사로 인한 토지침해로 인한 공사중지_ 78
카. 사생활침해를 원인으로 한 공사중지_ 79
ⅩⅠ. 가처분 절차에서의 조정?화해··············································································90
ⅩⅡ. 가처분 결정에 대한 구제방법··············································································91
1. 즉시항고······································································································91
2. 가처분 이의?취소··························································································92
3. 집행정지······································································································94
ⅩⅢ. 건설관련 가처분의 유형····················································································· 96
1. 공사금지가처분·····························································································96
가. 토지의 소유권, 점유권, 이용권, 담보권에 기한 공사금지가처분_ 96
나. 소유권에 기한 공사금지가처분 사례_ 99
다. 유치권에 기한 공사금지가처분 사례_ 102
라. 저당권에 기한 공사금지가처분 사례_ 103
마. 그 밖의 담보권, 이용권 등에 기한 공사금지가처분 사례_ 104
바. 인접 토지?건물 소유자의 물권적 청구권에 기한 공사금지가처분_ 105
사. 상린관계에 기한 공사금지가처분_ 109
아. 그 밖의 상린관계에 기한 공사금지가처분 사례_ 112
자. 일조권?조망권 등에 기한 공사금지가처분_ 112
차. 도급계약 등과 관련된 공사금지가처분_ 125
카. 집합건물 내에서의 공사금지가처분_ 126
타. 기타 비전형적인 공사금지가처분_ 130
파. 증거보전이나 행정행위의 금지 등을 구하는 공사금지가처분_ 132
2. 공사방해금지가처분····················································································· 132
가. 일반론_ 132 나. 구체적 사례_ 136
3. 공사속행가처분···························································································138
제 3 장 건설공사도급계약일반론
제1절 건설공사도급계약의 체결_ 141
Ⅰ. 건설공사도급계약의 의의 및 성격········································································ 141
1. 건설공사도급계약························································································141
가. 의 의_ 141 나. 도급계약의 원칙_ 141
2. 건설공사도급계약의 법적 성질······································································ 143
3. 건설공사도급계약의 종류············································································· 145
가. 공사의 수행방식에 따른 분류_ 145 나. 대가의 지급방식에 따른 분류_ 149
다. 계약의 체결방식에 따른 분류_ 151 라. 계약도서_ 152
Ⅱ. 수급인의 의무································································································· 156
1. 일을 완성할 의무························································································156
2. 목적물의 인도의무······················································································ 157
3. 완성된 건물의 소유권 귀속·········································································· 157
가. 문제의 소재_ 157 나. 학설 및 판례_ 158
4. 하도급과 소유권 귀속·················································································· 160
가. 문제점_ 160 나. 판례의 태도_ 160
5. 미완성 건물을 제3자가 완공한 경우······························································ 161
가. 문제점_ 161 나. 판례의 태도_ 162
6. 건축허가 명의를 대여한 경우······································································· 165
가. 문제점_ 165 나. 판례의 태도_ 165
7. 담보책임····································································································168
가. 의의 및 법적 성격_ 168 나. 담보책임의 요건_ 168
다. 책임의 내용_ 170 라. 하자담보책임기간_ 171
Ⅲ. 도급인의 의무································································································· 172
1. 보수지급의무······························································································172
2. 목적물 수령의무························································································· 174
3. 부수적 의무······························································································· 174
4. 협력의무····································································································175
Ⅳ. 도급에서의 위험부담························································································· 176
1. 채무자 위험부담주의··················································································· 176
2. 위험의 이전시기························································································· 178
3. 위험부담에 관한 특약·················································································· 178
제2절 건설계약의 해제_ 179
Ⅰ. 해제권 일반론································································································· 179
1. 문 제 점····································································································179
2. 건설계약 해제와 소급효 제한······································································· 179
3. 법정해제권·································································································181
가. 이행지체에 의한 해제_ 181 나. 법정해제의 효과_ 184
4. 약정해제권·································································································187
5. 합의해제····································································································188
6. 토지공작물의 특칙······················································································ 188
Ⅱ. 일의 완성 전 도급인의 임의해제권·······································································189
1. 임의해제권의 인정이유················································································ 189
2. 임의해제권의 행사시기················································································ 190
3. 효 과·······································································································190
가. 원 칙_ 190 나. 대금감액청구_ 190
Ⅲ. 도산과 해제권································································································· 192
1. 도급인이 파산한 경우의 수급인의 해제권······················································· 192
2. 수급인이 파산한 경우의 도급인의 해제권······················································· 193
3. 회생절차가 개시된 경우··············································································· 194
4. 건설산업기본법상 해지권············································································· 194
가. 도급인의 해지권_ 194 나. 수급인의 해지권_ 194
Ⅳ. 불안의 항변권································································································· 195
제 4 장 건설분쟁의 당사자
제1절 도급인 및 수급인_ 199
Ⅰ. 당사자의 확정································································································· 199
Ⅱ. 문제가 되는 경우····························································································· 199
1. 명의대여····································································································199
가. 문제점_ 199 나. 명의대여의 판단기준_ 200
다. 행위의 효력_ 204 라. 명의대여자의 책임_ 205
2. 현장소장····································································································209
가. 현장소장의 정의_ 209 나. 현장소장의 업무_ 209
다. 현장소장의 법적 지위_ 210 라. 현장소장의 업무범위_ 210
마. 현장소장이 한 행위의 회사에 대한 효력_ 211
제2절 공동도급인?공동수급인(공동수급체)_ 213
Ⅰ. 공동도급인······································································································213
1. 의 의·······································································································213
2. 공동도급인의 공사대금 채무의 성격·······························································213
Ⅱ. 공동수급체······································································································214
1. 서 론·······································································································214
가. 개 념_ 214 나. 공동계약의 특성_ 215
2. 운영형태 및 법적 성격················································································ 215
가. 운영형태_ 215
나. 건설공사공동수급체의 법적 성격_ 216
다. 공동수급표준협정서의 법적 성질_ 227
3. 건설공사공동수급체의 공사대금채권 관련 법률문제··········································229
가. 문 제 점_ 229 나. 발주자에 대한 공사대금 청구_ 230
다. 공동수급체의 책임(시공 및 하자담보책임)_ 234
라. 선급금 반환채무_ 235
마. 공동이행방식의 공동수급체와 하수급인 등의 관계_ 236
사. 공동수급체 구성원 사이의 공동원가분담금_ 238
4. 공사대금채권에 대한 제3자의 강제집행··························································239
가. 문 제 점_ 239
나. 강제집행 성립 여부에 대한 논의_ 240
5. 잔존구성원의 공사대금 청구········································································· 241
6. 가장공동수급체···························································································242
가. 의 의_ 242 나. 형식적 구성원의 책임_ 242
다. 가장 공동수급체 구성원에 대한 제재_ 243
제3절 하수급인_ 244
Ⅰ. 하도급 일반론································································································· 244
1. 하도급의 의의 및 법적 성질········································································· 244
가. 의 의_ 244 나. 법적 성격_ 244
2. 하도급의 제한···························································································· 245
가. 당사자의 특약 또는 일의 성질에 의한 제한_ 245
나. 건설산업기본법에 의한 하도급 제한_ 245
3. 하도급의 공정화를 위한 규정······································································· 249
가. 목 적_ 249 나. 하도급법상의 규정_ 252
다. 건설산업기본법상의 규정_ 261
Ⅱ. 하수급인의 행위로 인한 책임··············································································263
1. 도급인에게 손해가 발생한 경우·····································································263
가. 원수급인의 책임_ 263 나. 하수급인의 책임_ 264
2. 제3자에 대한 불법행위책임·········································································· 265
가. 원수급인의 책임_ 265 나. 하수급인의 책임_ 267
다. 도급인의 책임_ 267
Ⅲ. 하도급대금의 직접지급······················································································ 268
1. 의의 및 근거····
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