초판발행 2011. 01. 20

제?8?판발행 2026. 01. 20

제8판 머리말

이 책의 제 7 판이 나온 뒤 민법이 한 차례 개정되었다. 그 개정 규정에는 총칙편의 규정들이 포함되어 있다. 또 최근에 아주 중요한 대법원 전원합의체 판결이 선고되었고, 다른 수많은 대법원판결?결정도 나타났다. 이러한 변화는 되도록 빨리 반영해 줄 필요가 있다. 그래서 한 학기 뒤에 개정하려던 것을 앞당겨 부랴부랴 이번에 개정판을 내게 되었다. 이 개정으로 2026년 1월에 저자의 낱권 교과서는 이 책과 「친족상속법」이 함께 제 8 판으로 나오게 되었다.

이 책이 제 8 판에서 크게 달라진 점은 다음과 같다.

(1) 민법과 민사특별법의 개정사항을 반영하였다.

(2) 새로운 대법원판례를 빠짐없이 조사하여 적절한 곳에서 충실하게 설명해 주었다. 

(3) 일부 중요 판결에 대하여 저자가 ? 김병선 교수와 함께 ? 펴낸 「민법 핵심판례240선」(박영사)의 면수를 찾아 적었다. 또한 저자의 「신민법사례연습」(제 6 판)을 인용했던 경우에 인용 면수를 최신판인 제 7 판에 맞추어 적었다.

이 책이 나오는 데에는 많은 분의 도움이 있었다. 우선 박영사의 안종만 회장님과 안상준 대표가 이 책의 개정을 독려하고 격려해 주셨다. 특히 안 회장님은 저자가 민법의 전 분야에 걸쳐 낱권 교과서를 완간한 것을 ? 곽윤직 교수님도 못하신 것이라며 ? 높이 평가하면서 오래도록 꾸준히 개정도 해달라고 당부하셨다. 그리고 김선민 이사는 편집을 총괄하면서 아주 빠른 시간에 책을 훌륭하게 만들어주셨다. 또 조성호 출판기획이사는 개정 작업이 순조롭게 이루어질 수 있도록 열심히 도와주셨다. 이분들을 포함하여 도와주신 모든 분께 깊이 감사드린다.

2026년 1월

송 덕 수

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

착오론

민법주해[Ⅱ], [Ⅷ], [Ⅸ], [XIII](초판)(각권 공저)

주석민법 채권각칙(7)(제 3 판)(공저)

법학입문(공저)

법률행위와 계약에 관한 기본문제 연구

대상청구권에 관한 이론 및 판례연구

부동산 점유취득시효와 자주점유

법률행위에 있어서의 착오에 관한 판례연구

계약체결에 있어서 타인 명의를 사용한 경우의 법률효과

흠있는 의사표시 연구

민법개정안의견서(공저)

제 3 자를 위한 계약 연구

민법사례연습

민법강의(상)(하)

채권의 목적 연구

불법원인급여에 관한 이론 및 판례 연구

법관의 직무상 잘못에 대한 법적 책임 연구

시민생활과 법(공저)

신민법강의

신민법사례연습

신민법입문

기본민법

민법 핵심판례240선(공저)

민법총칙

물권법

채권법총론

채권법각론

친족상속법

민법전의 용어와 문장구조

나의 민법 이야기

차 례

제 1 장 서 론

제 1 절 민법의 의의 ················································································································ 1

Ⅰ. 서 설 ··············································································································· 1

Ⅱ. 실질적 민법 ··········································································································· 2

1. 민법은 법의 일부이다 / 2 2. 민법은 사법이다 / 2

3. 민법은 일반법이다 / 6 4. 민법의 그 밖의 성질 / 7

Ⅲ. 형식적 민법 ··········································································································· 8

Ⅳ. 두 민법 사이의 관계와 민법학의 대상 ·································································· 8

1. 두 민법 사이의 관계 / 8 2. 민법학의 대상: 실질적 민법 / 8

제 2 절 민법의 법원 ················································································································ 9

Ⅰ. 서 설 ··············································································································· 9

1. 법원의 의의와 종류 / 9

2. 법원에 관한 민법규정과 그에 따른 법원의 순위 / 11

Ⅱ. 성문민법 ·············································································································· 13

1. 법 률 / 13 2. 명 령 / 14 3. 대법원규칙 / 15

4. 조 약 / 15 5. 자치법 / 16

Ⅲ. 불문민법 ·············································································································· 16

1. 관 습 법 / 16 2. 조 리 / 23

3. 판 례 / 24 4. 기 타 / 27

제 3 절 민법전의 연혁과 구성 ····························································································· 28

Ⅰ. 서 설 ············································································································· 28

Ⅱ. 민법전의 연혁 ····································································································· 28

1. 고대 이후 조선시대까지 / 28 

2. 조선시대 말기부터 민법전 제정 전까지 / 30

3. 민법전의 성립과 발전 / 32

Ⅲ. 민법전의 구성과 내용 ·························································································· 58

1. 민법전의 구성 / 58 2. 민법전의 내용 / 61

3. 민법규정의 효력상 분류 / 61 4. 민법총칙의 내용 / 62vi 차 례

5. 이 책 민법총칙 부분의 기술순서 / 63

제 4 절 민법의 기본원리 ····························································································63

Ⅰ. 서 설 ············································································································· 63

Ⅱ. 학설의 동향과 비판적 검토 ·················································································· 64

Ⅲ. 우리 민법의 기본원리 ························································································· 64

1. 개 관 / 64 2. 3 대원리 / 65 3. 사회적 조정의 원칙 / 66

제 5 절 민법전의 적용범위 ·································································································· 66

Ⅰ. 사항에 관한 적용범위 ························································································· 67

Ⅱ. 때에 관한 적용범위 ····························································································· 67

Ⅲ. 인에 관한 적용범위 ······························································································ 68

1. 사람(자연인) / 68 2. 법 인 / 68

Ⅳ. 장소에 관한 적용범위 ························································································· 68

제 6 절 민법의 해석과 적용 ································································································· 69

Ⅰ. 서 설 ············································································································· 69

Ⅱ. 민법의 해석 ········································································································· 70

1. 민법해석의 의의 / 70 2. 해석의 방법 / 71

3. 해석의 구체적인 기술 / 72 4. 해석에 의한 법률의 틈의 보충 / 73

5. 해석의 두 가지 사명 / 74

Ⅲ. 민법의 적용 ········································································································· 75

제 2 장 권 리

제 1 절 법률관계 ········································································································77

Ⅰ. 의 의 ·············································································································· 77

Ⅱ. 내 용 ·············································································································· 78

Ⅲ. 법률관계의 규율··································································································· 80

제 2 절 권리와 의무의 의의 ·······················································································80

Ⅰ. 권리의 의의 ·········································································································· 80

Ⅱ. 의무의 의의 ·········································································································· 81

제 3 절 권리(사권)의 종류 ·························································································82

Ⅰ. 민법상의 권리(사권)의 분류방법 ········································································· 82

Ⅱ. 내용에 의한 분류 ································································································· 83

1. 재산권 / 83 2. 인격권 / 84

3. 가족권(친족권․신분권) / 85 4. 사원권 / 85차 례 vii

Ⅲ. 작용(효력)에 의한 분류 ······················································································· 85

1. 지배권 / 86 2. 청구권 / 86

3. 형성권 / 87 4. 항변권 / 88

Ⅳ. 그 밖의 분류········································································································· 89

1. 절대권․상대권 / 89 2. 일신전속권․비전속권 / 89

3. 주된 권리․종된 권리 / 89 4. 기성의 권리․기대권 / 90

제 4 절 권리의 경합 ···································································································90

Ⅰ. 의의와 모습 ·········································································································· 90

Ⅱ. 법규경합(법조경합) ····························································································· 91

제 5 절 권리의 행사와 의무의 이행 ···········································································92

Ⅰ. 권리행사의 의의와 방법 ······················································································ 92

Ⅱ. 권리의 충돌과 순위 ······························································································ 92

Ⅲ. 권리행사의 한계··································································································· 93

1. 서 설 / 93 2. 신의성실의 원칙 / 94

3. 권리남용 금지의 원칙 / 113

Ⅳ. 의무의 이행 ·········································································································119

제 6 절 권리의 보호 ·············································································································119

Ⅰ. 서 설 ·············································································································119

Ⅱ. 국가구제 ··············································································································120

1. 재판제도 / 120 2. 조정제도 / 120

Ⅲ. 사력구제 ··············································································································121

1. 정당방위 / 121 2. 긴급피난 / 121 3. 자력구제 / 122

제 3 장 법률행위

제 1 절 권리변동의 일반이론 ·····························································································123

Ⅰ. 서설(법률요건에 의한 법률효과의 발생)····························································123

Ⅱ. 권리변동(법률효과)의 모습 ················································································124

1. 권리의 발생(취득) / 124 2. 권리의 소멸(상실) / 125

3. 권리의 변경 / 125

Ⅲ. 권리변동의 원인(법률요건과 법률사실) ·····························································126

1. 법률요건 / 126 2. 법률사실 / 128

Ⅳ. 법률요건으로서의 법률행위의 중요성 ································································131

제 2 절 법률행위의 기초이론 ·····························································································133

Ⅰ. 법률행위의 의의 및 성질 ····················································································133viii 차 례

1. 의 의 / 133 2. 성 질 / 134

3. 법률행위 개념의 문제점 / 137

Ⅱ. 사적 자치와 법률행위 제도 ·················································································137

1. 사적 자치의 의의와 헌법적 기초 / 137

2. 사적 자치의 발현형식(영역) / 139

3. 사적 자치의 실현수단으로서의 법률행위 / 141

4. 사적 자치의 한계 / 143

Ⅲ. 법률행위의 구성요소로서의 의사표시 ································································144

1. 의사표시의 의의 / 144 2. 의사표시 이론 / 145

3. 의사표시의 구성요소 / 148

Ⅳ. 법률행위의 요건··································································································155

1. 서 설 / 155 2. 성립요건 / 156 3. 효력요건(유효요건) / 157

제 3 절 법률행위의 종류 ·····································································································159

Ⅰ. 서 설 ·············································································································159

Ⅱ. 단독행위․계약․합동행위 ··················································································159

1. 단독행위 / 159 2. 계 약 / 161 3. 합동행위 / 163

Ⅲ. 요식행위․불요식행위 ························································································163

Ⅳ. 생전행위․사후행위(사인행위) ···········································································164

Ⅴ. 채권행위․물권행위․준물권행위 ·······································································164

Ⅵ. 재산행위․가족법상의 행위 ················································································166

Ⅶ. 출연행위․비출연행위 ························································································166

1. 유상행위․무상행위 / 167 2. 유인행위․무인행위 / 167

Ⅷ. 신탁행위․비신탁행위 ························································································168

Ⅸ. 기타의 분류 ·········································································································168

1. 독립행위․보조행위 / 168 2. 주된 행위․종된 행위 / 168

제 4 절 법률행위의 해석 ·····································································································169

Ⅰ. 법률행위 해석의 의의 ·························································································169

Ⅱ. 법률행위 해석의 목표 ·························································································170

Ⅲ. 법률행위 해석의 주체․객체 ···············································································173

1. 주 체 / 173 2. 객 체 / 174

Ⅳ. 법률행위 해석의 방법 ·························································································174

1. 개 관 / 174 2. 자연적 해석 / 175

3. 규범적 해석 / 178 4. 보충적 해석 / 182

Ⅴ. 법률행위 해석이 법률문제인지 여부 ··································································184

제 5 절 행위능력 ···················································································································187

Ⅰ. 서 언 ·············································································································187

Ⅱ. 행위능력 일반론··································································································188

1. 의사능력 / 188 2. 행위능력 / 191차 례 ix

3. 민법상의 제한능력자제도 / 192

Ⅲ. 미성년자 ··············································································································194

1. 성년기 / 194 2. 미성년자의 행위능력 / 195

3. 법정대리인 / 201

Ⅳ. 피성년후견인 ······································································································203

1. 피성년후견인의 의의와 성년후견개시의 심판 / 203

2. 피성년후견인의 행위능력 / 205 3. 성년후견인 / 206

4. 성년후견종료의 심판 / 207

Ⅴ. 피한정후견인 ······································································································207

1. 피한정후견인의 의의와 한정후견개시의 심판 / 207

2. 피한정후견인의 행위능력 / 208 3. 한정후견인 / 209

4. 한정후견종료의 심판 / 210

Ⅵ. 피특정후견인 ······································································································211

1. 피특정후견인의 의의와 특정후견 심판의 요건 / 211

2. 특정후견 심판의 내용과 보호조치 / 212

3. 피특정후견인의 행위능력 / 212

4. 피특정후견인에 대하여 성년후견개시 등의 심판을 하는 경우 / 212

Ⅶ. 제한능력자의 상대방의 보호 ··············································································213

1. 서 설 / 213 2. 상대방의 확답촉구권 / 213

3. 상대방의 철회권․거절권 / 216

4. 제한능력자 쪽의 취소권의 배제 / 217

제 6 절 법률행위의 목적 ·····································································································218

Ⅰ. 서 설 ·············································································································218

Ⅱ. 목적의 확정성 ·····································································································219

Ⅲ. 목적의 실현가능성 ······························································································220

1. 의 의 / 220 2. 불능의 분류 / 221

Ⅳ. 목적의 적법성 ·····································································································222

1. 서 설 / 222 2. 강행법규 / 223

Ⅴ. 목적의 사회적 타당성 ·························································································235

1. 서 설 / 235 2. 사회질서의 의의 / 236

3. 사회질서 위반 여부의 판단 / 237

4. 사회질서 위반행위의 유형과 구체적인 예 / 240

5. 사회질서 위반의 효과 / 251 6. 불공정한 법률행위(폭리행위) / 252

제 7 절 흠 있는 의사표시 ····································································································261

Ⅰ. 개 관 ·············································································································261

Ⅱ. 진의 아닌 의사표시(비진의표시) ········································································262

1. 의 의 / 262 2. 요 건 / 264 3. 효 과 / 267

4. 제107조의 적용범위 / 269

Ⅲ. 허위표시 ··············································································································270x 차 례

1. 의 의 / 270 2. 요 건 / 271

3. 허위표시와 구별하여야 하는 행위 / 274 4. 효 과 / 275

5. 제108조의 적용범위 / 287 6. 은닉행위 / 288

Ⅳ. 착 오 ·············································································································289

1. 의 의 / 289 2. 착오와 법률행위 해석의 관계 / 291

3. 착오가 고려되기 위한 요건 / 293

4. 고려되는 착오의 구체적인 모습 / 303 5. 고려되는 착오의 효과 / 311

6. 제109조의 적용범위 / 313 7. 다른 제도와의 관계 / 315

8. 계약당사자 쌍방의 공통하는 동기의 착오 / 316

Ⅴ. 사기․강박에 의한 의사표시 ···············································································319

1. 서 설 / 319

2. 사기에 의한 의사표시의 의의와 요건 / 321

3. 강박에 의한 의사표시의 의의와 요건 / 326

4. 사기․강박에 의한 의사표시의 효과 / 330

5. 제110조의 적용범위 / 333 6. 관련 제도 / 333

제 8 절 의사표시의 효력발생 ·····························································································334

Ⅰ. 서 설 ·············································································································334

Ⅱ. 의사표시의 효력발생시기 ···················································································335

1. 입법주의 / 335 2. 도달주의의 원칙 / 335

3. 도달주의의 효과 / 339

Ⅲ. 의사표시의 공시송달 ··························································································339

Ⅳ. 의사표시의 수령능력 ··························································································340

1. 서 설 / 340 2. 수령무능력자에 대한 의사표시의 효력 / 340

제 9 절 법률행위의 대리 ·····································································································341

제 1 관 서 설 ···································································································· 341

Ⅰ. 대리제도의 의의 및 사회적 작용 ········································································341

1. 의의․연혁 / 341 2. 사회적 작용 / 342

Ⅱ. 대리의 본질 ·········································································································342

Ⅲ. 대리가 인정되는 범위 ·························································································343

Ⅳ. 대리와 구별하여야 할 제도 ·················································································344

Ⅴ. 대리의 종류 ·········································································································346

Ⅵ. 대리에 있어서의 3면관계····················································································346

제 2 관 대 리 권 ·············································································································347

Ⅰ. 대리권의 의의 및 성질 ························································································347

Ⅱ. 대리권의 발생원인 ······························································································347

1. 법정대리권의 발생원인 / 347

2. 임의대리권의 발생원인(수권행위) / 348

Ⅲ. 대리권의 범위와 그 제한 ····················································································353

1. 법정대리권의 범위 / 353 2. 임의대리권의 범위 / 353차 례 xi

3. 대리권의 제한 / 357

Ⅳ. 대리권의 남용 ·····································································································362

1. 서 설 / 362 2. 학설․판례 / 363

3. 학설․판례의 검토 및 사견 / 365

4. 표현대리에서의 대리권 남용 / 366

Ⅴ. 대리권의 소멸 ·····································································································367

1. 서 설 / 367 2. 공통한 소멸원인 / 367

3. 임의대리에 특유한 소멸원인 / 369

제 3 관 대리행위 ···········································································································371

Ⅰ. 현명주의 ··············································································································371

1. 의 의 / 371 2. 현명을 하지 않은 행위 / 374

3. 현명주의의 예외 / 374

Ⅱ. 타인의 명의(이름)를 사용하여 행한 법률행위 ···················································375

1. 서 설 / 375 2. 판 례 / 375 3. 학 설 / 380

4. 검토 및 사견 / 380

Ⅲ. 대리행위의 흠과 경합 ·························································································382

1. 대리행위의 흠(하자) / 382 2. 대리행위의 경합 / 385

Ⅳ. 대리인의 능력 ·····································································································386

1. 대리행위를 위한 능력 / 386

2. 제한능력자인 대리인과 본인의 관계 / 387

제 4 관 대리의 효과 ······································································································387

Ⅰ. 본인에의 법률효과 발생 ·····················································································387

Ⅱ. 본인의 능력 ·········································································································388

제 5 관 복 대 리 ·············································································································389

Ⅰ. 복대리 및 복대리인의 의의 ·················································································389

Ⅱ. 대리인의 복임권과 책임 ·····················································································390

1. 복임권의 의의․성질 / 390 2. 임의대리인의 복임권 / 390

3. 법정대리인의 복임권 / 391

Ⅲ. 복대리인의 지위··································································································391

Ⅳ. 복대리권의 소멸··································································································392

제 6 관 무권대리 ···········································································································392

Ⅰ. 서 설 ·············································································································392

Ⅱ. 표현대리 ··············································································································393

1. 의 의 / 393

2. 제125조의 표현대리(대리권 수여의 표시에 의한 표현대리) / 395

3. 제126조의 표현대리(대리권한을 넘은 표현대리) / 403

4. 제129조의 표현대리(대리권 소멸 후의 표현대리) / 413

Ⅲ. 좁은 의미의 무권대리 ·························································································416

1. 의 의 / 416 2. 계약의 무권대리 / 417

3. 단독행위의 무권대리 / 429

제10절 법률행위의 무효 및 취소 ······················································································430xii 차 례

제 1 관 서 설 ···········································································································430

Ⅰ. 서 설 ·············································································································430

제 2 관 법률행위의 무효 ·······························································································433

Ⅰ. 무효의 의의와 일반적 효과 ·················································································433

Ⅱ. 무효의 종류 ·········································································································434

Ⅲ. 무효행위의 추인··································································································444

1. 의 의 / 444 2. 민법상의 비소급적 추인 / 444

3. 약정에 의한 소급적 추인 / 447

Ⅳ. 무효행위의 전환··································································································449

1. 의 의 / 449 2. 요 건 / 449

제 3 관 법률행위의 취소 ·······························································································452

Ⅰ. 취소의 의의 ·········································································································452

1. 취소 개념 / 452 2. 원칙적 취소와 구별되는 취소 / 452

3. 취소와 구별하여야 할 개념 / 453

Ⅱ. 취 소 권 ···············································································································453

1. 의의 및 성질 / 453 2. 취소권자 / 453

3. 취소의 방법 / 456 4. 취소의 효과 / 460

Ⅲ. 취소할 수 있는 행위의 추인 ···············································································462

1. 의 의 / 462 2. 추인의 요건 / 462

3. 추인방법 / 463 4. 추인의 효과 / 463

Ⅳ. 법정추인 ··············································································································463

1. 의 의 / 463 2. 법정추인의 요건 / 464 3. 효 과 / 465

Ⅴ. 취소권의 단기소멸 ······························································································465

제11절 법률행위의 부관(조건과 기한) ············································································467

제 1 관 서 설 ···································································································· 467

Ⅰ. 서 설 ·············································································································467

제 2 관 조 건 ···········································································································469

Ⅰ. 조건의 의의 ·········································································································469

Ⅱ. 조건의 종류 ·········································································································471

Ⅲ. 조건을 붙일 수 없는 법률행위 ············································································476

Ⅳ. 조건의 성취와 불성취 ·························································································477

Ⅴ. 조건부 법률행위의 효력 ·····················································································480

1. 조건의 성취 여부 확정 전의 효력 / 480

2. 조건의 성취 여부 확정 후의 효력 / 482

제 3 관 기 한 ···········································································································483

Ⅰ. 기한의 의의 및 종류 ···························································································483

1. 의 의 / 483 2. 종 류 / 483

Ⅱ. 기한을 붙일 수 없는 법률행위 ············································································485

Ⅲ. 기한의 도래 ·········································································································486

Ⅳ. 기한부 법률행위의 효력 ·····················································································487차 례 xiii

1. 기한 도래 전의 효력 / 487 2. 기한 도래 후의 효력 / 487

Ⅴ. 기한의 이익 ·········································································································487

1. 의 의 / 487 2. 기한의 이익의 포기 / 488

3. 기한의 이익의 상실 / 488

제 4 장 기 간

Ⅰ. 기간의 의의 ·········································································································491

Ⅱ. 기간의 계산방법··································································································491

1. 계산방법의 종류 / 491 2. 시․분․초를 단위로 하는 기간의 계산 / 492

3. 일․주․월․년으로 정한 기간의 계산 / 492

Ⅲ. 기간의 역산방법··································································································494

제 5 장 소멸시효

제 1 절 서 설 ··················································································································497

Ⅰ. 시효의 의의 ·········································································································497

Ⅱ. 시효제도의 존재이유 ··························································································497

1. 학 설 / 498 2. 판 례 / 499 3. 사 견 / 499

Ⅲ. 제척기간과 소멸시효 ··························································································500

1. 서 설 / 500 2. 제척기간의 의의 / 501

3. 제척기간이 정하여져 있는 권리의 행사방법 / 502

4. 소멸시효와의 차이점 / 503 5. 제척기간․소멸시효기간의 판별 / 504

6. 시효의 성질 / 505

제 2 절 소멸시효의 요건 ·····································································································505

Ⅰ. 개 관 ·············································································································505

Ⅱ. 소멸시효에 걸리는 권리 ·····················································································506

1. 서 설 / 506 2. 우리 민법상 소멸시효에 걸리는 권리 / 506

Ⅲ. 권리의 불행사(소멸시효기간의 기산점) ·····························································511

1. 소멸시효기간의 기산점 / 511 2. 개별적인 검토 / 514

3. 소멸시효기간의 기산점과 변론주의 / 522

Ⅳ. 소멸시효기간 ······································································································523

1. 채권의 소멸시효기간 / 523

2. 채권 이외의 재산권의 소멸시효기간 / 532

제 3 절 소멸시효의 중단 ·····································································································532

Ⅰ. 소멸시효 중단의 의의 ·························································································532xiv 차 례

Ⅱ. 소멸시효의 중단사유 ··························································································533

1. 청 구 / 533 2. 압류․가압류․가처분 / 548

3. 승 인 / 554

Ⅲ. 소멸시효 중단의 효력 ·························································································559

1. 효력의 내용 / 559 2. 효력의 인적 범위 / 560

제 4 절 소멸시효의 정지 ·····································································································561

Ⅰ. 소멸시효 정지의 의의 ·························································································561

Ⅱ. 소멸시효의 정지사유 ··························································································561

제 5 절 소멸시효의 효력 ·····································································································562

Ⅰ. 소멸시효 완성의 효과 ·························································································562

Ⅱ. 소멸시효의 소급효 ······························································································568

Ⅲ. 소멸시효의 이익의 포기 ·····················································································569

Ⅳ. 종속된 권리에 대한 소멸시효의 효력 ·································································574

제 6 장 권리의 주체

제 1 절 서 설 ······································································································ 575

Ⅰ. 권리의 주체와 권리능력 ·····················································································575

Ⅱ. 권리능력자 ··········································································································576

Ⅲ. 권리능력과 행위능력의 구별 ··············································································576

Ⅳ. 강행규정 ··············································································································576

제 2 절 자 연 인 ····················································································································577

제 1 관 권리능력 ···········································································································577

Ⅰ. 권리능력 평등의 원칙 ·························································································577

Ⅱ. 권리능력의 시기··································································································577

Ⅲ. 태아의 권리능력··································································································579

1. 서 설 / 579 2. 태아가 이미 출생한 것으로 의제되는 사항 / 579

3. 태아의 법률상 지위 / 581

Ⅳ. 권리능력의 범위··································································································582

1. 서 설 / 582 2. 외국인의 권리능력 / 583

Ⅴ. 권리능력의 종기··································································································584

1. 권리능력의 소멸원인 : 사망 / 584

2. 사망사실 또는 사망시기의 증명곤란에 대비한 제도 / 586

제 2 관 주 소 ···································································································· 588

Ⅰ. 서 설 ·············································································································588

Ⅱ. 주소에 관한 입법주의 ·························································································588차 례 xv

Ⅲ. 민법상의 주소 ·····································································································589

1. 주소의 의의 / 589 2. 주소가 법률관계에 영향을 주는 사항 / 589

Ⅳ. 거소․현재지․가주소 ·························································································590

1. 거 소 / 590 2. 현재지 / 590 3. 가주소 / 590

제 3 관 부재와 실종 ······································································································591

Ⅰ. 서 설 ·············································································································591

Ⅱ. 부재자의 재산관리 ······························································································591

1. 부재자의 의의 / 591 2. 재산관리의 방법 및 내용 / 592

Ⅲ. 실종선고 ··············································································································598

1. 의 의 / 598 2. 실종선고의 요건 / 598

3. 실종선고의 효과 / 600 4. 실종선고의 취소 / 604

제 3 절 법 인 ··················································································································610

제 1 관 서 설 ···········································································································610

Ⅰ. 법인의 의의와 존재이유 ·····················································································610

1. 법인의 의의 / 610 2. 법인제도의 존재이유 / 610

Ⅱ. 법인의 본질 ·········································································································616

1. 고전적인 견해 / 616 2. 우리의 학설․판례 / 617

3. 검토 및 사견 / 618

Ⅲ. 법인의 종류 ·········································································································619

1. 공법인․사법인 / 619 2. 영리법인․비영리법인 / 619

3. 사단법인․재단법인 / 620

Ⅳ. 법인 아닌 사단과 재단 ························································································621

1. 개 설 / 621 2. 법인 아닌 사단 / 621

3. 법인 아닌 재단 / 638

제 2 관 법인의 설립 ······································································································640

Ⅰ. 법인설립에 관한 입법주의 ··················································································640

Ⅱ. 비영리 사단법인의 설립 ·····················································································641

1. 요 건 / 641 2. 설립 중의 사단법인 / 646

Ⅲ. 비영리 재단법인의 설립 ·····················································································647

1. 요 건 / 647 2. 설립 중의 재단법인 / 653

제 3 관 법인의 능력 ······································································································653

Ⅰ. 서 설 ·············································································································653

Ⅱ. 법인의 권리능력··································································································654

Ⅲ. 법인의 행위능력··································································································656

Ⅳ. 법인의 불법행위능력 ··························································································658

1. 민법규정 / 658 2. 법인의 불법행위의 요건 / 660

3. 효 과 / 664

제 4 관 법인의 기관 ······································································································666

Ⅰ. 서 설 ·············································································································666

Ⅱ. 이 사 ·············································································································667xvi 차 례

1. 의 의 / 667 2. 임 면 / 667 3. 직무권한 / 672

4. 이 사 회 / 678 5. 임시이사 / 680 6. 특별대리인 / 683

7. 직무대행자 / 683

Ⅲ. 감사(감독기관) ···································································································684

1. 의의․임면 / 684 2. 직무권한 / 685

Ⅳ. 사원총회(의사결정기관) ·····················································································685

1. 의 의 / 685 2. 총회의 종류 / 686 3. 소집의 절차 / 686

4. 총회의 권한 / 688 5. 총회의 결의 / 688

Ⅴ. 사 원 권 ···············································································································690

제 5 관 법인의 주소 ······································································································691

Ⅰ. 법인의 주소와 그 효과 ························································································691

제 6 관 정관의 변경 ······································································································691

Ⅰ. 서 설 ·············································································································691

Ⅱ. 사단법인의 정관변경 ··························································································692

1. 요 건 / 692 2. 정관변경의 한계 / 692

Ⅲ. 재단법인의 정관변경 ··························································································693

1. 정관의 변경방법이 정해져 있는 경우 / 693 2. 사무소 등의 변경 / 694

3. 목적달성이 불능한 경우 / 694 4. 기본재산의 처분 및 증감 / 696

제 7 관 법인의 소멸 ······································································································698

Ⅰ. 서 설 ·············································································································698

Ⅱ. 해 산 ·············································································································698

1. 사단법인․재단법인에 공통한 해산사유 / 699

2. 사단법인에 특유한 해산사유 / 699

Ⅲ. 청 산 ·············································································································700

1. 의 의 / 700 2. 청산법인의 능력 / 701

3. 청산법인의 기관 / 701 4. 청산사무(청산인의 직무권한) / 702

제 8 관 법인의 등기 ······································································································706

Ⅰ. 서 설 ·············································································································706

Ⅱ. 법인등기의 종류··································································································706

Ⅲ. 등기의 효력 ·········································································································708

제 9 관 법인의 감독과 벌칙··························································································708

Ⅰ. 법인의 감독 ·········································································································708

1. 업무감독 / 708 2. 해산과 청산의 감독 / 708

Ⅱ. 벌 칙 ·············································································································709

1. 서 설 / 709 2. 과태료의 처분을 할 수 있는 사항 / 709

제10관 외국법인 ···········································································································710

Ⅰ. 외국법인의 의의 및 능력 ····················································································710차 례 xvii

제 7 장 물 건

제 1 절 권리의 객체 일반론 ································································································711

Ⅰ. 권리 객체의 의의 ································································································711

Ⅱ. 민법규정 ··············································································································711

제 2 절 물건의 의의 및 종류 ······························································································712

Ⅰ. 물건의 의의 ·········································································································712

1. 물건의 요건 / 712 2. 물건의 개수 / 714 3. 재산 개념 / 716

Ⅱ. 물건의 종류 ·········································································································717

1. 융통물․불융통물 / 717 2. 가분물․불가분물 / 717

3. 대체물․부대체물 / 718 4. 특정물․불특정물 / 718

5. 소비물․비소비물 / 718

제 3 절 부동산과 동산 ·········································································································719

Ⅰ. 부동산․동산 구별의 이유 ··················································································719

Ⅱ. 부 동 산 ···············································································································720

1. 토 지 / 721 2. 토지의 정착물 / 723

Ⅲ. 동 산 ·············································································································727

제 4 절 주물과 종물 ·············································································································728

Ⅰ. 주물․종물의 의의 ······························································································728

Ⅱ. 종물의 요건 ·········································································································729

Ⅲ. 종물의 효과 ·········································································································730

Ⅳ. 종물이론의 유추적용 ··························································································730

제 5 절 원물과 과실 ·············································································································731

Ⅰ. 원물․과실의 의의 ······························································································731

Ⅱ. 천연과실 ··············································································································732

Ⅲ. 법정과실 ··············································································································734

민법규정 색인 ··························································································································735

판례 색인 ··································································································································738

사항 색인 ··································································································································762