2016 新 민사소송법 Case 단문집

제1편 총 론

제1장 민사소송
제1절 민사소송의 절차 개관 ················································································ 3
제2절 다른 소송과의 관계 중 비송사건 ································································· 5
비송사건 사례 대비 ···················································································· 9
제2장 민사소송법 중 민사소송법규의 종류 ···························································· 10

제2편 소송의 주체

제1장 법 원
제1절 민사재판권 ······························································································ 13
제2절 법관의 제척·기피·회피 ·············································································· 18
제척·기피 사례 대비 ················································································· 24
제3절 관 할 ····································································································· 25
관할의 의의 및 종류 ················································································ 25
토지관할 ································································································· 26
합의관할 ································································································· 30
변론관할 ································································································· 35
소송의 이송 ···························································································· 38
토지관할과 이송의 이해 정리 ···································································· 43
관련재판적 사례 대비 ··············································································· 45
합의관할 사례 대비 ·················································································· 46
소송의 이송 사례 대비 ············································································· 48
제2장 당사자(원고와 피고)
제1절 총 설 ····································································································· 49
제2절 당사자의 확정 ························································································· 50
제소 전 사망 사례 대비 ············································································ 57
제3절 당사자의 자격 ························································································· 58
당사자능력 ······························································································ 58
당사자 적격 ···························································································· 62
소송능력 ································································································· 68
당사자적격 사례 대비 ··············································································· 72
소송능력 사례 대비 ·················································································· 73
제4절 소송상의 대리인 ······················································································ 75
총 설 ····································································································· 75
법정대리인 ······························································································ 75
법정대리(대표) 사례 대비 ·········································································· 80
임의대리인(소송대리인) ············································································ 81
임의대리인과 법정대리인의 이동 ································································ 88
무권대리인 ······························································································ 91
소송대리, 무권대리(대표) 사례 대비 ··························································· 93
조합의 소송수행방안 ················································································ 95
조합 사례 대비 ······················································································· 97

제3편 제1심의 소송절차

제1장 소송의 개시
제1절 소의 의의와 종류 ··················································································· 101
형식적 형성의 소 ··················································································· 103
형식적 형성의 소 사례 대비 ···································································· 105
제2절 소송요건 ······························································································· 106
총 설 ···································································································· 106
소의 이익(中 각종의 소에 특수한 소의 이익) ············································· 109
장래이행의 소의 사례 대비 ····································································· 117
확인의 소의 사례 대비 ············································································ 118
제3절 소송물 ·································································································· 119
제4절 소의 제기 ····························································································· 123
제5절 재판장등의 소장심사와 소제기후의 조치 ··················································· 126
재판장등의 소장심사 ·············································································· 126
소장부본의 송달과 답변서 제출의무의 고지 ··············································· 130
피고의 답변서제출의무와 무변론판결 ························································ 130
제6절 소송구조 ······························································································· 134
제7절 소제기의 효과 ······················································································· 136
소송법상의 효과(소송계속) ······································································ 136
중복된 소제기의 금지 원칙 ····································································· 139
중복제소 사례 대비 ················································································ 146
실체법상의 효과 ···················································································· 148
제2장 변 론
제1절 변론의 의의 및 종류 ·············································································· 151
제2절 심리에 관한 제원칙 ················································································ 152
처분권주의 ···························································································· 152
처분권주의 사례 대비 ············································································· 158
변론주의 ······························································································· 159
석명권 ·································································································· 166
변론주의 사례 대비 ················································································ 172
적시제출주의(공격방어방법의 제출시기) ···················································· 176
현행법상 집중심리를 위한 제도 ······························································· 180
소송절차의 이의권 ················································································· 182
제3절 변론의 준비(기일전의 절차) ···································································· 185
준비서면 ······························································································· 185
변론준비절차 ························································································· 189
제4절 변론의 내용과 소송행위 ·········································································· 193
변론의 내용 ·························································································· 193
부인과 항변 ··························································································· 195
소송에 있어서 형성권의 행사 ·································································· 198
소송행위 ······························································································· 201
부제소 합의 ··························································································· 202
소취하 합의 ··························································································· 206
소송행위의 철회와 의사의 하자(무효·취소) ················································ 208
변론의 내용과 소송행위 사례 대비 ··························································· 211
제5절 변론의 실시 중 변론조서 ········································································ 214
제6절 기일에 있어서 당사자의 결석 ·································································· 218
기일의 불출석 사례 대비 ········································································ 224
제7절 기일, 기간, 송달 중 ··············································································· 226
기간의 부준수와 소송행위의 추후보완 ······················································ 226
송달 중 공시송달 ··················································································· 228
제8절 소송절차의 정지 ···················································································· 232
소송절차 중단의 사례 대비 ····································································· 239
제3장 증 거
제1절 총 설 ··································································································· 241
제2절 증명의 대상(요증사실) ············································································ 243
제3절 불요증 사실 ·························································································· 246
재판상 자백 사례 대비 ············································································ 256
제4절 증거조사의 개시와 실시 ·········································································· 259
증거조사의 개시 ···················································································· 259
증거조사의 실시 중(中) ··········································································· 263
제5절 자유심증주의 ························································································· 275
제6절 증명책임 ······························································································· 280

제4편 소송의 종료

제1장 총 설 ····································································································· 287
제2장 당사자의 행위에 의한 종료
제1절 소의 취하 ····························································································· 290
제2절 청구의 포기·인낙 ··················································································· 300
제3절 재판상 화해 ·························································································· 302
제3장 종국판결에 의한 종료
제1절 재판일반 ······························································································· 307
제2절 판 결 ··································································································· 309
판결의 종류 및 일부판결 ········································································ 309
판결의 효력 ·························································································· 312
판결의 편취 사례 대비 ············································································ 317
기판력 일반 ··························································································· 318
기판력 케이스 해결 방법 ····································································· 321
※ 주관적 범위와 관련된 문제가 출제될 경우의 문제(채권자 대위소송) ············· 322
※ 객관적 범위와 관련된 문제가 출제될 경우의 문제(선결적 법률관계) ············· 323
※ 작용국면과 관련된 문제가 출제될 경우의 문제(동일소송물) ························· 323
※ 작용국면과 관련된 문제가 출제될 경우의 문제(선결관계) ···························· 324
기판력의 주관적 범위 ············································································· 325
기판력의 객관적 범위 ············································································· 331
기판력의 시적 범위 ················································································ 336

제5편 병합소송

제1장 병합청구소송(청구의 복수)
제1절 청구의 병합(소의 객관적 병합) ································································ 343
청구의 병합 사례 대비 ············································································ 350
제2절 청구의 변경 ·························································································· 352
청구의 변경 사례 대비 ············································································ 358
제3절 중간확인의 소 ······················································································· 359
제4절 반 소 ··································································································· 361
제2장 다수당사자소송(당사자의 복수)
제1절 공동소송 ······························································································· 366
공동소송 사례 대비 ················································································ 375
제2절 선정당사자 ···························································································· 377
제3절 제3자의 소송참가 ·················································································· 383
보조참가 ······························································································· 383
공동소송적 보조참가 ·············································································· 390
소송고지 ······························································································· 393
독립당사자참가 ······················································································ 396
공동소송참가 ························································································· 405
제4절 당사자의 변경 ······················································································· 409

제6편 상소심절차

제1장 총 설
제1절 상소의 의의 및 종류 ·············································································· 419
제2절 상소요건 ······························································································· 421
상소 사례 대비 ······················································································ 426
제3절 상소의 효력 ·························································································· 428
제2장 항 소
제1절 항소의 제기 ·························································································· 431
1. 재판장등의 항소장 심사권 ···································································· 431
2. 항소의 취하 ························································································ 432
3. 부대항소 ···························································································· 434
제2절 항소심의 종국적 재판(중 항소인용) ·························································· 438
1. 원판결의 취소 ····················································································· 438
2. 불이익변경금지의 원칙 ········································································· 439
제3장 상 고
환송판결의 기속력 ·················································································· 442

제7편 재심절차

1. 재심의 개념 ························································································ 447
2. 재심 적법요건 ····················································································· 447