초판발행 2015. 01. 20

제8판발행 2026. 01. 05

제 8 판 머리말

저자는 민법의 낱권 교과서로 2011년 「민법총칙」을 필두로 매년 한 권씩 발

간하여 2015년에는 「친족상속법」까지 민법 전체에 대하여 5권 전부를 펴냈다. 

그리고 그 후 쉬지 않고 개정하여 2025년에는 5권 모두가 제 7 판에 이르렀다. 그

런데 제 7 판이 맨 처음 나온 것은 의외로 초판이 가장 늦게 나온 「친족상속법」이

었다. 무엇보다도 독자들의 과분한 사랑 덕분이었다. 그리고 제 8 판도 역시 「친

족상속법」이 다른 책에 앞서서 나오게 되었다. 신속하게 반영해 주어야 할 사항

이 많을뿐더러 독자들의 기대가 느껴져서다.

이 책의 제 8 판에서 크게 달라진 점은 다음과 같다

이 책의 제 7 판이 나온 뒤 민법 중 친족상속법이 한 차례 개정되었다. 그리

고 친족법․상속법과 관련된 특별법이 새로 제정되었는가 하면 개정되기도 했다. 

관련 부속 법령과 대법원규칙의 개정도 있었다. 이번 판에서는 우선 이와 같은

법령의 변화를 충실하게 소개해 주었다. 

지난 2년 동안 대법원 전원합의체 판결을 포함하여 중요한 판례가 많이 나

타났다. 또한 이 책 내용과 관련된 중요한 헌법재판소 결정이 선고되기도 했다. 

이러한 판례를 모두 조사하여 서술하였다.

저자는 2024년에 김병선 교수와 함께 「민법 핵심판례240선」(박영사)을 펴냈

다. 그리고 거기에서는 친족상속법 분야의 최신 판례도 분석하였는데, 이 책에서

해당 판례가 나올 때 쉽게 참고할 수 있도록 「민법 핵심판례240선」의 해당 면수

를 찾아 적어주었다. 

이렇게 하다 보니 되도록 간결하게 쓰려고 했는데도 본문을 기준으로 14면

이 증가하였다. 그래도 추가해야 할 내용의 절대적인 양과 중요도를 생각하면 지나치지 않은 것으로 여겨진다.

이 책이 나오는 데에는 많은 분의 도움이 있었다. 박영사의 안종만 회장님과

안상준 대표는 저자에게 개정을 강력히 권하면서 격려도 해 주셨다. 그리고 박영

사 편집부의 김선민 이사는 편집을 총괄하여 책을 훌륭하게 만들어주셨고, 조성

호 출판기획이사는 책이 제때 출간될 수 있도록 적극적으로 도와주셨다. 이분들

을 포함하여 도와주신 모든 분께 깊이 감사드린다.

2026년 1월

송 덕 수

머 리 말

이 책의 출간을 앞두고 보니 그 어느 때보다 기쁘고 감격스럽다. 여러 모로

부족한 저자가 재산법 부분을 넘어서 친족상속법에 이르기까지 민법 전체를 낱

권 교과서로 정리한 것이니 어찌 그렇지 않겠는가. 천신만고 끝에 고봉준령을 넘

어 선계(仙界)에 다다른 느낌이다. 

저자가 「민법총칙」 책을 펴낼 때 과연 민법 중 재산법 부분만이라도 끝낼 수

있을까 염려가 되었었다. 그러니 친족상속법 부분까지 완료하는 것은 의욕은 있

되 희망사항에 지나지 않았다. 그런데 시간의 부족과 여러 제약을 극복하고 드디

어 민법 전체를 낱권의 교과서로 집필하는 결실을 보게 된 것이다. 다른 어느 법

분야와 비교할 수 없을 정도로 방대하고 깊이가 있는 민법 전체를 체계적으로 자

세하게 기술하는 것은 생각만으로도 어려운 일이다. 더욱이 오래오래 생각할뿐

더러 다작형(多作型)이 아닌 저자의 특성에 비추어보면 그 어려움은 몇 배가 된

다. 그럼에도 불구하고 그것을 실현했으니 그 기쁨 무엇에 비하랴. 

저자의 교과서 집필작업은 2003년에 「민법강의(상)」을 집필하면서 시작되

었는데, 이 책의 출간으로 완성하게 되었다. 그러기까지 만 12년이 걸린 것이다. 

그리고 이는 저자가 대학의 전임교수가 된 지 만 31년만이다. 한편 이 「친족상속

법」 책이 출간됨으로써 저자의 민법 관련 저서의 사이클 또한 완성되었다. 민법

을 처음 공부하는 사람들을 위한 「신민법입문」, 5권의 정식 낱권 교과서들인 「민

법총칙」․「물권법」․「채권법총론」․「채권법각론」․「친족상속법」, 법학 교육 및

수험생을 위한 「신민법강의」, 이론을 사례에 적용하는 훈련을 위한 「신민법사례

연습」을 모두 갖추었기 때문이다. 

이 책의 집필방식과 방향은 「민법총칙」 책의 머리말에서 밝힌 것과 같다. 그

리고 「채권법각론」 책을 집필할 때처럼 꼭 필요한 사항은 모두 넣되 불필요하게

양이 늘어나지는 않도록 하여 분량도 조절하였다. 그 외에 이 책에 관하여만 특

별한 점이 있다. 그것은-저자로서는 당연한 것이지만-이 책을 민법(재산법) 일반이론의 원칙과 기초 위에서 일관된 논리와 체계에 따라서 서술하였다는 점이

다. 그 결과 부분적으로 기존의 친족상속법 교과서들이 당연시하던 내용과 차이

를 보이기도 한다. 혼인․협의이혼․입양․협의파양의 성립을 법률행위의 성립요

건의 원리에 입각하여 설명한 것이 그 대표적인 예이다. 

저자가 대학에서 친족상속법을 처음 대하였을 때 거기에는 현대의 민법이라

고 할 수 없을 정도로 고루하고 인습적인 내용이 많이 포함되어 있었다. 그런데

지금은 그 모습이 크게 달라져 있다. 그리고 친권과 같은 분야에서는 미성년 자

녀의 복리를 증진해야 하는 당위도 담겨 있다. 이러한 상황에서는 친족상속법의

연구방법에 있어서도 상당한 변화와 주의가 필요하다. 달라진 내용과 원리를 고

려하여 연구하여야 하는 것이다. 저자는 이 책을 쓰면서 오랜 기간 단련해 온 민

법 재산법의 연구방법론을 바탕으로 하고, 거기에 더하여 친족상속법에 특유한

점을 고려하여 집필을 하였다. 그렇지만 친족상속법 분야에서 깊은 연구를 많이

하지 않은 터라 부족함도 적지 않을 것이다. 그러한 점은 앞으로 지적을 받아가

며 차차 보완해 가려고 한다. 선후배․동료 교수님들께서 조그만 잘못이라도 지

적해 주시기를 바라마지 않는다.

저자의 민법 교과서 출간은 전적으로 박영사 안종만 회장님의 신념과 요청

에 기인한 것이다. 이 책이야말로 더욱 그렇다. 저자가 이 책의 집필에 주저하고

있을 때 그 분이 강한 추진력으로 저자를 밀어붙여 결국 계획된 대로 출간을 하

게 된 것이다. 이 자리를 빌려 안회장님께 진심으로 감사드린다. 이 책이 출간되

는 데에는 그 밖에도 여러 분의 도움이 있었다. 우선 저자의 대학원 제자들인 김

지원 박사, 김병선 이화여대 부교수, 홍윤선 박사, 김연지(구명 김영선) 법학석사, 

이선미 법무부 전문위원이 원고 중 수정할 곳을 지적해 주었다. 특히 김병선 부

교수는 원고 전체를 꼼꼼히 읽고 흠을 있는 대로 모두 찾아내어 고치도록 하였

다. 그리고 나의 연구조교인 임희진 양도 도와주었다. 박영사에서는 무엇보다도

편집부의 김선민 부장과 이승현 대리가 크게 수고해 주셨다. 그리고 전략기획팀

조성호 이사도 열심히 도와주셨다. 이 분들을 비롯하여 도와주신 모든 분들에게

깊이 감사드린다. 

2015년 1월

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저자약력

서울대학교 법과대학, 동 대학원 졸업

법학박사(서울대)

경찰대학교 전임강사, 조교수

이화여자대학교 법과대학/법학전문대학원 조교수, 부교수, 교수

Santa Clara University, School of Law의 Visiting Scholar

사법시험․행정고시․외무고시․입법고시․감정평가사시험․변리사시험 위원

현재: 이화여자대학교 법학전문대학원 명예교수

주요저서

錯誤論

民法注解[Ⅱ], [Ⅷ], [Ⅸ], [XIII](초판)(각권 공저)

註釋民法 債權各則⑺(공저)

법학입문(공저)

法律行爲와 契約에 관한 基本問題 硏究

代償請求權에 관한 理論 및 判例硏究

不動産 占有取得時效와 自主占有

法律行爲에 있어서의 錯誤에 관한 判例硏究

契約締結에 있어서 他人 名義를 사용한 경우의 法律效果

흠있는 意思表示 硏究

民法改正案意見書(공저)

제 3 자를 위한 契約 硏究

民法事例演習

民法講義(上)

民法講義(下)

債權의 目的 硏究

不法原因給與에 관한 理論 및 判例 硏究

法官의 職務上 잘못에 대한 法的 責任 硏究

시민생활과 법(공저)

신민법강의

기본민법

신민법사례연습

신민법입문

민법 핵심판례240선(공저)

민법총칙

물권법

채권법총론

채권법각론

친족상속법

민법전의 용어와 문장구조

나의 민법 이야기

차 례

제 1 장 서 론

Ⅰ. 친족상속법의 의의 ······························································································· 1

Ⅱ. 친족상속법의 특질 ······························································································· 3

1. 비타산성(非打算性)․비합리성(非合理性) / 4

2. 강행법규성 / 4 3. 보수성(保守性) / 4

Ⅲ. 친족상속법의 법원(法源) ····················································································· 4

1. 서　　설 / 4 2. 성문 친족상속법 / 5

3. 가사소송법 등이 법원인지 여부 / 5

Ⅳ. 「가족관계의 등록 등에 관한 법률」과 가사소송법 ··············································· 5

1. 「가족관계의 등록 등에 관한 법률」 / 5 2. 가사소송법 / 13

Ⅴ. 민법 친족편․상속편의 개정과 그 내용 ·······························································17

1. 민법 친족편․상속편의 개정 / 17 2. 민법 친족편․상속편의 내용 / 20

Ⅵ. 친족상속법상의 권리와 법률행위 ········································································21

1. 친족상속법상의 권리 / 21 2. 친족상속법상의 행위 / 21

Ⅶ. 친족상속법과 민법총칙 ·······················································································22

제 2 장 친 족 법

제 1 절 혼　　인 ·····································································································23

Ⅰ. 약　　혼 ·············································································································23

1. 약혼의 의의 / 23 2. 약혼의 성립 / 23

3. 약혼의 효과 / 25 4. 약혼의 해제 / 26

Ⅱ. 혼인의 성립 ·········································································································30

1. 혼인의 의의 / 30 2. 혼인의 성립요건 / 31

3. 혼인의 장애사유 / 37

Ⅲ. 혼인의 무효와 취소 ·····························································································40

1. 서　　설 / 40 2. 혼인의 무효 / 40 3. 혼인의 취소 / 48

Ⅳ. 혼인의 효과 ·········································································································55

1. 일반적 효과 / 55 2. 재산적 효과(부부재산제) / 60

Ⅴ. 이 혼 ·············································································································71

1. 혼인의 해소 일반론 / 71 2. 협의이혼 / 73

3. 재판상 이혼 / 82 4. 이혼의 효과 / 93

Ⅵ. 사 실 혼 ·············································································································134

1. 의 의 / 134 2. 성립요건 / 134 3. 사실혼의 효과 / 135

4. 사실혼의 해소 / 137 5. 사실상혼인관계 존재 확인청구 / 140

제 2 절 부모와 자 ··································································································143

Ⅰ. 친자관계 ············································································································143

1. 친자관계의 의의 및 종류 / 143 2. 친자의 성(姓) / 143

Ⅱ. 친생자(親生子)··································································································146

1. 혼인 중의 출생자 / 146 2. 혼인 외의 출생자 / 158

3. 친생자관계 존부(存否) 확인의 소 / 172

4. 인공수정자․체외수정자․대리모출산 / 180

Ⅲ. 양　　자 ···········································································································185

1. 서　　설 / 185 2. 입양의 성립 / 189 3. 입양의 무효와 취소 / 200

4. 입양의 효과 / 206 5. 파　　양 / 207 6. 친양자(親養子) / 214

제 3 절 친　　권 ···································································································221

Ⅰ. 서　　설 ···········································································································221

Ⅱ. 친 권 자 ·············································································································222

1. 혼인 중의 출생자의 경우 / 222 2. 혼인 외의 출생자의 경우 / 225

3. 양자의 경우 / 225 4. 부모의 이혼 등의 경우 / 226

5. 친권자의 변경 / 227 6. 정해진 친권자가 없게 된 경우 / 227

7. 친권행사능력 / 229 8. 친권행사와 친권자지정의 기준 / 230

Ⅲ. 친권의 내용 ·······································································································230

1. 자(子)의 신분에 관한 권리․의무 / 230

2. 자(子)의 재산에 관한 권리․의무 / 232

3. 친권자의 동의를 갈음하는 재판 / 243

Ⅳ. 친권의 소멸․정지․제한과 회복 ·······································································244

1. 친권의 소멸 / 244 2. 친권의 상실 / 244

3. 친권의 일시정지 / 248 4. 친권의 일부제한 / 249

5. 대리권과 재산관리권의 상실 / 251 6. 사전처분 / 252

7. 실권회복 / 252 8. 대리권․재산관리권의 사퇴와 회복 / 253

9. 정해진 친권자가 친권을 행사할 수 없게 된 경우 / 253

제 4 절 후　　견 ···································································································254

Ⅰ. 서　　설 ···········································································································254

Ⅱ. 미성년후견과 성년후견 ·····················································································255

1. 후견의 개시 / 255 2. 후 견 인 / 258

3. 후견감독기관 / 262 4. 후견사무 / 266 5. 후견의 종료 / 275

Ⅲ. 한정후견과 특정후견 ·························································································276

1. 한정후견 / 276 2. 특정후견 / 280

Ⅳ. 후견계약(임의후견제도) ···················································································283

1. 후견계약의 의의․법적 성질․공시 / 283

2. 후견계약의 성립과 내용 / 283

3. 임의후견감독인 / 285 4. 후견계약의 해지 / 287

5. 임의후견과 법정후견 사이의 관계(법정후견의 보충성) / 288

제 5 절 부　　양 ···································································································288

Ⅰ. 서　　설 ···········································································································289

1. 부양제도 / 289 2. 부양청구권의 성질 / 290

Ⅱ. 부양당사자 ········································································································291

1. 부양당사자의 범위 / 291 2. 부양당사자의 순위 / 292

Ⅲ. 부양의 정도와 방법 ···························································································293

Ⅳ. 과거의 부양료․체당부양료(替當扶養料) ·························································295

1. 과거의 부양료 / 295 2. 체당부양료의 구상(求償) / 296

제 6 절 친족관계 ····································································································298

Ⅰ. 서　　설 ···········································································································298

Ⅱ. 친계와 촌수 ·······································································································298

1. 친　　계 / 298 2. 촌　　수 / 300

Ⅲ. 친족의 의의 및 종류 ··························································································301

1. 혈　　족 / 301 2. 인　　척 / 303 3. 배 우 자 / 303

Ⅳ. 친족의 범위 ·······································································································304

Ⅴ. 친족관계의 효과 ································································································304

1. 민법상의 효과 / 304 2. 형법상의 효과 / 306

3. 소송법상의 효과 / 306 4. 기타 법상의 효과 / 306

Ⅵ. 호주제도의 폐지와 가족의 범위규정 신설 ·························································307

1. 호주제도의 폐지 / 307 2. 가족의 범위 신설 / 307

제 3 장 상 속 법

제 1 절 서　　설 ···································································································311

Ⅰ. 상속 및 상속권의 의의 ······················································································311

1. 상속의 의의 / 311 2. 상속권의 의의 / 311

Ⅱ. 상속의 유형 ·······································································································312

1. 제사상속․호주상속․재산상속 / 312

2. 생전상속(生前相續)․사후상속(死後相續) / 312

3. 법정상속․유언상속 / 312 4. 단독상속․공동상속 / 313

5. 강제상속․임의상속 / 313 6. 균분상속․불균분상속 / 313

Ⅲ. 상속의 근거 ·······································································································313

제 2 절 상　　속 ···································································································314

제 1 관 상속의 개시 ······························································································· 314

Ⅰ. 상속개시의 원인 ································································································314

1. 상속개시의 의의 / 314 2. 상속개시의 원인 / 314

Ⅱ. 상속개시의 시기 ································································································315

1. 서　　설 / 315 2. 구체적인 시기 / 315

Ⅲ. 상속개시의 장소 ································································································318

Ⅳ. 상속에 관한 비용 ·······························································································319

제 2 관 상 속 인 ····································································································· 320

Ⅰ. 상속인의 자격 ···································································································320

1. 상속능력 / 320 2. 상속결격 / 321

Ⅱ. 상속인의 순위 ···································································································328

1. 서　　설 / 328 2. 혈족상속인 / 329 3. 배우자상속인 / 332

Ⅲ. 대습상속 ············································································································333

1. 의의 및 성질 / 333 2. 요　　건 / 334

3. 재(再)대습상속 / 336 4. 대습상속의 효과 / 337

제 3 관 상속의 효력 ······························································································· 337

Ⅰ. 일반적 효과 ·······································································································337

1. 상속재산의 포괄승계의 원칙 / 337

2. 상속재산의 범위 / 338 3. 제사용 재산의 특별승계 / 345

Ⅱ. 상속분(相續分)··································································································349

1. 서　　설 / 349 2. 법정상속분 / 350

3. 특별수익자의 상속분 / 351 4. 기여분(寄與分) / 357

5. 상속분의 양도와 환수 / 367

Ⅲ. 공동상속재산의 공동소유 ··················································································370

1. 공동상속의 의의 / 370 2. 제1006조의 「공유」의 의미 / 370

3. 공동상속의 구체적인 경우 / 371 4. 공동상속재산의 관리․처분 / 373

Ⅳ. 상속재산의 분할 ································································································375

1. 서　　설 / 375 2. 지정분할 / 376 3. 협의분할 / 377

4. 심판분할 / 383 5. 상속재산 분할의 효력 / 3388

Ⅴ. 상속회복청구권 ·································································································395

1. 의　　의 / 394 2. 법적 성질 / 395 3. 당 사 자 / 397

4. 상속회복청구권의 행사 / 402 5. 상속회복청구권의 소멸 / 403

제 4 관 상속의 승인과 포기 ··················································································· 406

Ⅰ. 서　　설 ···········································································································406

1. 상속의 승인․포기의 자유 / 406

2. 승인․포기행위의 성질 / 407 3. 승인․포기의 고려기간 / 408

4. 승인․포기의 철회금지와 취소․무효 / 411

5. 승인․포기 전의 상속재산의 관리 / 413

Ⅱ. 단순승인 ············································································································414

1. 단순승인의 의의 / 414 2. 법정 단순승인 / 414

3. 단순승인의 효과 / 419

Ⅲ. 한정승인 ············································································································420

1. 서　　설 / 420 2. 한정승인의 효과 / 422

Ⅳ. 상속의 포기 ·······································································································427

1. 서　　설 / 427 2. 상속포기의 효과 / 428

제 5 관 재산의 분리 ······························································································· 432

Ⅰ. 서　　설 ···········································································································432

1. 의　　의 / 432 2. 다른 제도와의 관계 / 433

3. 재산분리의 절차 / 434

Ⅱ. 재산분리의 효력 ································································································435

1. 고유재산과의 분리 / 435 2. 상속재산의 관리 / 435

3. 재산분리의 대항요건 / 435 4. 청　　산 / 435

5. 고유재산으로부터의 변제 / 436

제 6 관 상속인의 부존재 ························································································ 436

Ⅰ. 서　　설 ···········································································································436

1. 의　　의 / 436 2. 「상속인의 부존재」의 경우 / 437

Ⅱ. 상속재산의 관리․청산과 상속인의 수색 ··························································437

1. 상속재산의 관리 / 437 2. 상속재산의 청산 / 438

3. 상속인의 수색 / 439

Ⅲ. 특별연고자(特別緣故者)에 대한 재산분여(財産分與) ······································439

1. 제도의 취지 / 439 2. 특별연고자의 지위 / 439

3. 특별연고자의 범위 / 440 4. 재산분여의 절차 / 440

5. 분여의 대상 / 441

Ⅳ. 상속재산의 국가귀속 ·························································································441

제 3 절 유　　언 ···································································································442

Ⅰ. 서　　설 ···········································································································442

1. 유언의 의의 및 법적 성질 / 442 2. 유언과 법정상속의 관계 / 443

3. 유언능력 / 444

Ⅱ. 유언의 방식 ·······································································································445

1. 서　　설 / 445 2. 자필증서에 의한 유언 / 448

3. 녹음에 의한 유언 / 452 4. 공정증서에 의한 유언 / 453

5. 비밀증서에 의한 유언 / 454 6. 구수증서에 의한 유언 / 455

Ⅲ. 유언의 철회 ·······································································································457

1. 유언철회의 자유 / 457 2. 유언철회의 방식 / 458

3. 철회의 효과 / 459

Ⅳ. 유언의 효력 ·······································································································461

1. 유언의 일반적 효력 / 461 2. 유　　증 / 463

Ⅴ. 유언의 집행 ·······································································································473

1. 의　　의 / 473 2. 유언집행의 준비절차(개봉과 검인) / 473

3. 유언집행자 / 474

제 4 절 유 류 분 ·····································································································481

Ⅰ. 서　　설 ···········································································································481

1. 의　　의 / 481 2. 유류분권과 그 포기 / 482

Ⅱ. 유류분의 범위 ···································································································483

1. 유류분권자와 그의 유류분 / 483 2. 유류분액의 산정 / 484

Ⅲ. 유류분의 보전(保全) ·························································································490

1. 유류분반환청구권 / 490 2. 유류분반환청구권의 행사 / 495

3. 반환청구권의 소멸시효 / 503

민법규정 색인 ······················································································································505

판례 색인 ······························································································································511

사항 색인 ······························································································································523