최영덕 탁마민사소송법 사례연습(제1판)

[ PART 01 ] 총론 1

제1장 민사소송과 다른 소송절차의 관계 ························································ 2
1. 행정소송과 민사소송의 관계 ·································································· 2
2. 전문소송 변경의 이송 및 제척기간······················································· 6
3. 민사소송과 가사소송의 관계 ·································································· 9
4. 절차와 비송절차의 비교······································································· 12
제2장 신의성실의 원칙/소송요건의 지위 ······················································ 15
1. 소송절차에서 신의성실의 원칙 ···························································· 15
2. 집행단계에서 신의칙 적용 ··································································· 18
3. 소송요건의 소송법상 의미 ··································································· 20

[ PART 02 ] 소송의 주체와 객체 24

제1장 법원 ···································································································· 25
제01절 재판권 ··································································································· 25
1. 재판권의 인적 범위 ·············································································· 25
2. 국제재판관할권 ····················································································· 28
3. 국제소송에서 중복제소금지(소송경랍) ················································· 30
4. 국제재판관할합의 ·················································································· 33
5. 섭외소송에서 소송비용담보제도 ·························································· 35
제02절 관할과 이송 ·························································································· 37
1-1. 사물관할의 변론관할 성부 ······························································· 37
1-2. 사물관할과 관할항정의 원칙··························································· 39
2. 토지관할의 경합··················································································· 41
3-1. 변론관할과 관련재판적 ···································································· 45
3-2. 합의관할과 관련재판적 ···································································· 48
3-3. 관련재판적과 이송············································································ 50
4-1. 합의관할 유형 및 약관규제법························································· 53
4-2. 합의관할의 취소가부 ········································································ 55
5-1. 전속관할합의의 편의이송································································· 57
5-2. 특허소송의 전속관할과 이송··························································· 60
5-3. 이송에 대한 불복방법······································································ 62
6. 전속관할의 경합··················································································· 66
제03절 공정한 재판을 위한 제도/제척과 기피((§41~§50) ······························· 69
1. 제척사유 ································································································ 69
2. 기피절차 계속의 하자 치유 여부 ························································ 71
3. 기피제도와 항고절차 ············································································ 73
제2장 당사자(원고와 피고/소송대리인) ····················································· 76
제01절 소송법상 당사자 ··················································································· 76
1-1. 당사자확정과 표시정정 ···································································· 76
1-2. 법인의 당사자동일성과 표시정정 ···················································· 80
1-3. 비법인 사단의 당사자확정과 표시정정··········································· 85
2-1. 제소전 사망자 상대소송과 시효중단··············································· 89
2-2. 제소전 사망과 표시정정 ··································································· 92
3. 성명모용소송························································································· 95
4-1. 법인격 부인론 ··················································································· 97
4-2. 법인격부인론의 역적용 ·································································· 100
제02절 당사자능력=권리능력 ·········································································· 104
1-1. 법인과 조합의 당사자능력 ····························································· 104
1-2. 대립당사자주의와 당사자능력 ························································ 106
1-3. 법인격없는 단체와 조합의 당사자능력/적격································ 108
제03절 당사자적격(=관리처분권ㆍ소송수행권의 유무, 집행적격) ····················· 112
1. 합유와 당사자적격 ·············································································· 112
2. 총유의 당사자적격 ·············································································· 114
3. 이행의 소의 당사자적격···································································· 118
4. 파산자를 상대로 한 소송··································································· 121
5-1. 채권자대위소송의 적법요건과 직권조사항···································· 123
5-2. 채권자대위소송과 당사자적격 ······················································ 126
5-3. 채무자없는 채권자대위소송의 적부·············································· 132
5-4. 채권자대위소송의 당사자적격과 시효항변···································· 135
6-1. 압류와 추심소송의 당사자적격 ······················································ 138
6-2. 압류추심소송과 채권자대위소송 관계 ··········································· 140
7. 당사자적격과 상소심 판단 ································································· 142
8. 채권자취소소송의 소송물 ··································································· 145
9-1. 선정당사자의 행위의 효력 ····························································· 148
9-2. 선정당사자의 선임의 묵시적 철회 ················································ 150
9-3. 선정당사자의 지위와 중복제소 여부············································· 153
10. 무효확인의 소에서 당사자적격 ························································ 156
제04절 소송능력과 변론능력 ··········································································· 158
1. 미성년자의 소송행위 ·········································································· 158
2. 변론능력과 소송행위 ·········································································· 163
제05절 소송대리인과 대리권 ··········································································· 166
1. 법정대리인의 적식과 적법요건 ·························································· 166
2. 법정대리권의 상실과 효력 ································································· 168
3. 법인 대표자의 지위와 소송요건························································ 170
4. 법인의 대표권과 무효행위 추인························································ 172
5. 무권대리와 치유················································································· 176
6. 무권대리인의 행위 ·············································································· 179
7. 소송대리권의 범위 ·············································································· 181
제3장 소송의 객체와 권리보호요건 ························································· 183
제01절 소송물 ································································································ 183
1. 소송물과 공격방어방법의 구별 ·························································· 183
2. 소송물의 특정 ····················································································· 185
3. 채권양도에서 소송물의 특정과 효과 ················································· 187
제02절 권리보호요건 ······················································································ 190
1. 장래이행의 소의 권리보호이익 ·························································· 190
2-1. 확인의 소의 이익 ··········································································· 192
2-2. 확인의 이익과 지적의무 ································································ 194
2-3. 증서진부확인의 소익 ······································································ 197
2-4. 확인의 소의 이익 ··········································································· 199
3. 공유물분할소송에서 소의 이익 ·························································· 201
4. 채권자취소소송의 권리보호이익 ························································ 203

[ PART 03 ] 제1심 소송절차 205

제1장 소제기와 효과 ··············································································· 206
제01절 소송법상 당사자 ················································································· 206
1. 주소보정과 소장각하명령 ··································································· 206
2. 소송물과 소제기의 효과···································································· 208
3-1. 응소와 시효중단 및 일부청구······················································· 210
3-2. 일부청구와 청구취지확장의 시효중단 ··········································· 213
3-3. 일부청구와 시효중단 ······································································ 218
4-1. 추심의 소와 시효중단···································································· 222
4-2. 당사자적격과 시효중단 ·································································· 224
5. 채권양도와 시효중단 ·········································································· 226
6. 시효중단을 위한 재소의 이익 ··························································· 229
7. 채권지취소소송에서 제척기간···························································· 232
8-1. 채권자대위소송의 중복제소 ··························································· 235
8-2. 상계항변의 중복제소와 재소금지 ·················································· 239
제2장 변론과 심리 ··················································································· 242
제01절 변론절차 ····························································································· 242
1-1. 무변론청구기각판결 가부와 변론절차 ··········································· 242
1-2. 무변론청구기각판결 가부와 심급이익과 지적의무 ······················· 244
2. 진술간주와 재판상 자백···································································· 247
3. 소취하 간주 ························································································ 249
4. 자백간주 ······························································································ 251
5-1. 예고없는 사실의 주장금지 ····························································· 253
5-2. 자백간주와 진술간주 및 예고없는 사실 주장금지······················· 255
제02절 처분권주의(§203) ··············································································· 258
1-1. 일부청구와 처분권주의 위반························································· 258
1-2. 일부청구와 상계 ············································································· 260
2. 부진정연대채무에서 심판범위···························································· 262
3-1. 소극적 확인의 소의 심판범위······················································· 265
3-2. 소극적 확인의 소변경과 처분권주의············································· 268
4. 처분권주의와 상환이행판결 ······························································· 271
5. 건물철거청구소송에서 매수청구권의 행사 ········································ 273
6. 채권자대위소송에서 처분권주의 ························································ 277
제03절 변론주의 ····························································································· 280
1. 유권대리와 변론주의 ·········································································· 280
2. 주요사실과 간접사실의 사실인정 범위 ············································· 283
3-1. 변론주의에서 주요사실 ·································································· 287
3-2. 주장책임과 주요사실 ······································································ 289
3-3. 주요사실과 간접사실의 추단························································· 292
4. 석명의무 내지 지적의무···································································· 295
5. 변론재개의무와 지적의무 ··································································· 298
6. 동시이행항변과 지적의무 ··································································· 302
7. 실기한 공격방어 방법과 상계 ··························································· 305
제04절 소송행위 ····························································································· 308
1. 부인과 항변 ························································································ 308
2. 조건부 항변 ························································································ 310
3. 항변부제출의 효과 ·············································································· 312
4-1. 소송상 합의의 허부와 효력 ··························································· 315
4-2. 조건부 소취하계약의 효력 ····························································· 317
4-3. 부제소합의의 효력········································································· 320
5. 소송상형성권의 행사 ·········································································· 322
6. 소송행위의 철회와 취소···································································· 324
제05절 송달과 소송행위 추완 ········································································· 328
1-1. 보충송달·························································································· 328
1-2. 보충송달의 효력 ············································································· 331
2-1. 우편송달·························································································· 333
2-2. 항소취하 간주에서 발송송달························································· 336
3. 공시송달의 효력 등 ············································································ 340
4-1. 공시송달과 추완항소 ······································································ 344
4-2. 공시송달과 추완항소 ······································································ 347
4-3. 공시송달과 추완항소 ······································································ 349
제06절 절차의 중단 등 ··················································································· 351
1. 실종선고의 효력과 절차중단/추완 ···················································· 351
2. 소송절차의 중단과 수계···································································· 353
3. 누락한 상속인에 대한 중단판결의 효력 ··········································· 355
제3장 증거법 ··························································································· 357
제01절 증거조사와 방법 ················································································· 357
1-1. 유일한 증거신청과 증인신문························································· 357
1-2. 보조사실의 유일한 증거신청························································· 360
2. 증언거부권과 취재원 비닉권 ····························································· 362
3. 서면증언제도······················································································· 364
4. 증인불출석에 대한 제재···································································· 366
5. 당사자신문 ·························································································· 368
6. 녹취와 검증 ························································································ 370
제02절 서증 ···································································································· 372
1. 서증의 진정성립················································································· 372
2. 서증의 종류와 증명 ············································································ 378
3. 사본의 증거력 ····················································································· 382
4. 자기문서의 증거력 ·············································································· 385
5. 서증과 변론조서의 효력···································································· 388
6-1. 문서제출명령제도 ··········································································· 391
6-2. 비밀심리제도 ··················································································· 393
6-3. 문서제출명령과 비밀심리제도 ························································ 395
제03절 불요증사실 ·························································································· 397
1. 선행자백 ······························································································ 397
2. 간접사실과 자백················································································· 399
3. 재판상 자백의 취소와 철회······························································· 401
4. 현저한 사실과 경험칙 ········································································ 403
5. 불요증사실의 자백과 과실상계 ·························································· 405
제04절 자유심증주의와 증명책임 ···································································· 408
1. 자유심증주의의 증명도······································································ 408
2. 손해배상액 산정과 자유심증주의······················································ 410
3. 증거계약과 자유심증주의 ··································································· 413
4. 제3자의 서면 부제출과 증명방해 ······················································ 415
5-1. 의료과오소송에서 증명책임 ··························································· 417
5-2. 의사의 설명의무 존부와 증명책임 ················································ 419
6. 청구이의의 소/소극적확인의소의 증명책임 ······································ 422
7-1. 법률상 추정과 증명책임 ······························································ 424
7-2. 법률상 추정과 증명책임 ································································ 426
8. 공해소송과 간접반증이론 ··································································· 428

[ PART 04 ] 소송의 종료 431

제1장 당사자의 행위에 의한 종료 ·························································· 432
제01절 소취하 ································································································ 432
1. 소취하의 효력 ····················································································· 432
2. 소취하 효력과 발생시기···································································· 434
3. 소취하 부존재와 무효의 차이 ··························································· 436
4. 소취하계약과 재소금지······································································ 438
5-1. 재소금지 요건 충족 여부 ······························································ 442
5-2. 재소금지의 당사자 동일 여부······················································· 444
5-3. 채권자대위소송에서 재소금지 ························································ 447
예시 모범답안 448
6. 당사자적격과 재소금지······································································ 451
7. 재소금지와 선결적 법률관계 ····························································· 454
8. 교환적 변경과 재소금지···································································· 456
제02절 인낙/포기과 화해 등 ·········································································· 459
1. 인낙조서의 효력················································································· 459
2. 재판상 화해와 실체법적 문제 ··························································· 462
3. 화해조서의 효력················································································· 471
제2장 종국판결에 의한 종료 ··································································· 473
제01절 판결과 그 효력 ··················································································· 473
1. 판결경정제도와 항고 ·········································································· 473
2. 판결서기재 간이화특례······································································ 476
3. 가집행선고판결의 효력······································································ 478
4. 소송판결(당사자적격)의 기판력 발생 여부 ······································· 480
5-1. 외국판결의 승인과 판결의 효력 ···················································· 482
5-2. 외국판결의 승인과 판결의 효력 ···················································· 484
제02절 기판력의 주관적 범위 ········································································· 489
1. 채권자대위소송에서 주관적 범위······················································ 489
2. 변론종결후 승계인과 그 판단 ··························································· 491
3. 변론종결후 승계인의 범위 ································································· 495
4. 변론종결뒤의 승계인과 객관적 범위 ················································· 498
5. 기판력과 승계집행문 ·········································································· 500
6. 등기와 변론종결후 승계인 ································································· 502
7. 집행적격승계인 ··················································································· 504
8. 집행적격승계인 ··················································································· 506
9. 승계인과 집행 여부 ············································································ 509
제03절 객관적 범위(제216조) ········································································· 513
1. 소송물과 기판력················································································· 513
2. 일부청구와 기판력 ·············································································· 516
3. 채권자취소소송의 소송물과 기판력 ··················································· 518
4. 객관적 범위와 모순관계···································································· 520
5. 공물분할청구소송의 기판력 ······························································· 523
6. 전소 확정판결에서 이유의 효력························································ 526
7-1. 확인의 소와 기판력········································································ 529
7-2. 변종후사유로서 확인의 소 여부 ···················································· 533
8. 예비적 병합과 기판력 ········································································ 535
제04절 기판력의 시적 범위 ············································································ 538
1. 표준시································································································· 538
2. 동시이행항변권의 상계와 기판력······················································ 540
3-1. 형성권의 실권여부········································································· 542
3-2. 상계의 실권 여부 ··········································································· 544
4. 재상계항변의 기판력 ········································································ 546
5-1. 시적 범위와 변종후 새로운 사유 여부 ········································· 548
5-2. 변종후 새로운 사유의 범위 ··························································· 553
5-3. 주채무의 시효완성의 보증채무 확정판결에 대한 차단효 여부 ··· 555
6. 건물매수청구권의 실권 여부 ····························································· 557
7. 상속협의분할의 실권효······································································ 559
8-1. 변경의 소 ························································································ 561
8-2. 정기금 변경의 소와 승계인 ··························································· 564
제3장 판결의 편취 ··················································································· 566
1. 공시송달에 의한 판결편취의 구제···················································· 566
2-1. 허위송달에 의한 편취판결 ····························································· 571
2-2. 편취판결의 구제 방법···································································· 575
3. 참칭대표자의 사위판결과 재심 ·························································· 577

[ PART 05 ] 상소와 재심 579

제1장 상소 ······························································································· 580
제01절 항소 ···································································································· 580
1. 항소의 적식요건과 항소장 각하명령 ················································· 580
2-1. 항소의 이익 ·················································································· 582
2-2. 소송물과 항소이익········································································· 584
3. 상소의 효력 ························································································ 586
4. 항소의 효력과 단순병합···································································· 591
5. 청구취지의 확장과 부대항소/항소이익············································· 593
6. 항소취하 합의의 효력 ········································································ 596
7. 일부 항소취하 가부 ············································································ 598
8. 부대항소와 항소취하 ·········································································· 600
9. 재항소와 파기환송 후 항소취하 가부··············································· 602
10. 불이익변경금지와 소변경································································· 604
제02절 상고 ···································································································· 608
1. 상고이유서 제출기간의 의미 ····························································· 608
2. 환송판결의 효력················································································· 611
3. 상고심의 심판범위 ·············································································· 615
4-1. 파기환송심의 기속력 ······································································ 617
4-2. 파기환송의 기속력의 객관적 범위 ················································ 619
4-3. 병합소송과 파기환송의 기속력 ······················································ 621
제2장 항고 ······························································································· 625
1. 항고절차와 종류················································································· 625
2. 재도의 고안 ························································································ 627
제3장 재심 ······························································································· 629
1. 대리권 흠결과 재심기간···································································· 629
2. 재심대상과 재심사유 ·········································································· 632
3. 재심법원과 재심의 성질···································································· 636
4. 재심의 소에서 공동소송적 보조참가인의 행위의 효력···················· 641

[ PART 06 ] 병합소송 645

제1장 병합청구소송(청구의 복수) ···························································· 646
제01절 원시적 병합 ························································································ 646
제1관 단순병합·························································································· 646
1. 장래이행의 소의 단순병합 ································································· 646
2. 대상청구소송의 판단과 판결 ····························································· 648
3. 대상청구와 부진정 예비적 병합························································ 651
4-1. 단순병합과 선택적·예비적 병합···················································· 654
4-2. 단순병합의 선택적·예비적 병합···················································· 658
4-3. 관련성있는 단순병합의 예비적 병합············································· 660
제2관 선택적 병합····················································································· 665
1. 선택적 병합의 형태 ············································································ 665
2. 선택적 병합의 심판방법···································································· 668
3. 선택적 병합에서 변론과 심리 ··························································· 672
4. 선택적 병합에서 부진정 예비적 병합··············································· 675
5. 선택적 병합과 항소심 심판······························································· 679
6. 선택적 병합의 상고심 판단······························································· 681
제3관 예비적 병합····················································································· 683
1. 예비적 병합에서 소송물 특정 ·························································· 683
2-1. 예비적 병합의 심판방법 ································································ 685
2-2. 예비적 병합의 판단누락과 심판 ···················································· 688
3. 예비적 병합의 상고심의 심판 ··························································· 693
4. 예비적 병합의 항소심 인용판결························································ 696
제02절 후발적 병합 ························································································ 698
1. 항소심에서 청구의 변경···································································· 698
2. 교환적 변경 ························································································ 701
3. 반소관할 ······························································································ 703
4. 반소와 본소의 적법 여부··································································· 705
5. 예비적 반소 ························································································ 707
6. 부적법한 반소의 처리 ········································································ 709
7. 제3자 반소 가부 ················································································· 711
8. 반소의 병합과 항소심 ······································································ 713
제2장 다수당사자소송(주관적 병합) ························································ 718
제01절 공동소송 ····························································································· 718
1. 통상공동소송의 심판 방법-독립의 원칙 ··········································· 718
2. 부진정연대채무에서 공동소송···························································· 721
3. 공동소송과 장래이행의 소에 관한 판례 ··········································· 723
4. 통상공동소송에서 소송비용 부담······················································ 726
5. 공유물에 대한 소송 ············································································ 728
6. 필수적 공동소송과 당사자적격 ·························································· 732
7-1. 필수적 공동소송과 불이익변경금지원칙 ····································· 734
7-2. 필수적 공동소송에서 일부판결과 항소········································· 736
8-1. 유사필수적 공동소송에서 일부 항소취하 가부···························· 738
8-2. 유사필수적 공동소송에서 소취하 가부········································· 741
9. 공동소송의 선택적 소송 여부와 심판··············································· 745
10. 예비적·선택적 공동소송인의 추가··················································· 748
11-1. 예비적 공동소송의 심판방법······················································· 752
11-2. 예비적 공동소송에서 합일확정의 원칙······································· 755
12. 복합적 소송형태··············································································· 759
13. 중첩적(복합적) 병합소송의 항소심 심판········································· 762
14. 예비적 공동소송의 심판과 일부 소취하········································· 766
제02절 소송참가 ····························································································· 771
1. 단순보조참가······················································································· 771
2. 참가적 효력과 판결의 증명효 이론·················································· 773
3. 보조참가의 효력················································································· 775
4. 보조참가와 통상의 공동소송 비교···················································· 779
5. 보조참가인의 항소효력······································································ 782
6. 채권자대위소송에서 소송참가···························································· 784
7. 회사참가소송······················································································· 787
8-1. 독립당사자참가에서 권리주장참가 ················································ 791
8-2. 독립당사자참가에서 화해권고와 항소의 효력······························ 795
9-1. 채권자대위소송에서 채무자의 독립당사사참가소송 ····················· 799
9-2. 채권자대위소송에서 다른 채권자의 독립당사사참가소송 ············ 802
10. 채권자취소소송과 독립당사자참가 ·················································· 804
제03절 당사자변경과 승계 ·············································································· 807
1. 당사자적격과 당사자변경 ··································································· 807
2. 공유물분할 소송에서 당사자변경 가부 ············································· 810
3-1. 피고경정제도 ··················································································· 813
3-2. 피고경정과 표시정정 ······································································ 815
3-3. 피고경정 시기 ················································································· 818
4. 소송승계 가부 ····················································································· 821
5. 소송승계와 소송탈퇴 ·········································································· 824
6. 소송승계와 중복제소 및 재소금지···················································· 829
7. 소송승계의 소멸시효 중단 효력 등·················································· 832