2017 新 민사소송법 Case 단문집

제1편 총 론

제1장 민사소송
제1절 민사소송의 절차 개관 ··············································································· 3
제2절 다른 소송과의 관계 중 비송사건 ································································ 5
비송사건 사례 대비 ························································································ 10

제2장 민사소송법 중 민사소송법규의 종류 ······························································ 12

제2편 소송의 주체

제1장 법 원
제1절 민사재판권 ····························································································· 15
제2절 법관의 제척·기피·회피 ············································································· 20
제척·기피 사례 대비 ······················································································ 27
제3절 관 할 ···································································································· 28
[제1관] 관할의 의의 및 종류 ········································································· 28
[제2관] 토지관할 ·························································································· 29
[제3관] 합의관할 ·························································································· 34
[제4관] 변론관할 ·························································································· 39
[제5관] 소송의 이송 ···················································································· 42
[제6관] 토지관할과 이송의 이해 정리 ····························································· 49
관련재판적 사례 대비 ···················································································· 51
합의관할 사례 대비 ······················································································· 53
소송의 이송 사례 대비 ·················································································· 56

제2장 당사자(원고와 피고)
제1절 총 설 ···································································································· 57
제2절 당사자의 확정 ························································································ 58
제소 전 사망 사례 대비 ················································································· 66
제3절 당사자의 자격 ························································································ 68
[제1관] 당사자능력 ······················································································· 68
[제2관] 당사자적격 ······················································································· 72
[제3관] 소송능력 ·························································································· 79
당사자능력 사례 대비 ···················································································· 83
당사자적격 사례 대비 ···················································································· 84
소송능력 사례 대비 ······················································································· 86
제4절 소송상의 대리인 ····················································································· 88
[제1관] 총 설 ······························································································ 88
[제2관] 법정대리인 ······················································································· 88
[제3관] 임의대리인(소송대리인) ····································································· 93
[제4관] 무권대리인 ····················································································· 100
임의대리인과 법정대리인의 이동 ··································································· 103
법정대리(대표) 사례 대비 ············································································· 107
소송대리, 무권대리(대표) 사례 대비 ······························································ 108
조합의 소송수행방안 ··················································································· 111
조합 사례 대비 ··························································································· 114

제3편 제1심의 소송절차

제1장 소송의 개시
제1절 소의 의의와 종류 ·················································································· 117
형식적 형성의 소 ························································································ 119
형식적 형성의 소 사례 대비 ········································································· 122
제2절 소송요건 ······························································································ 123
[제1관] 총 설 ····························································································· 123
[제2관] 소의 이익( 中 각종의 소에 특수한 소의 이익) ···································· 126
장래이행의 소의 사례 대비 ··········································································· 137
확인의 소의 사례 대비 ················································································· 139
제3절 소송물 ································································································· 140
제4절 소의 제기 ····························································································· 145
제5절 재판장등의 소장심사와 소제기후의 조치 ··················································· 149
[제1관] 재판장등의 소장심사 ········································································ 149
[제2관] 소장부본의 송달과 답변서 제출의무의 고지 ········································ 154
[제3관] 피고의 답변서제출의무와 무변론판결 ················································· 154
제6절 소송구조 ······························································································ 158
제7절 소제기의 효과 ······················································································· 161
[제1관] 소송법상의 효과(소송계속) ································································ 161
중복된 소제기의 금지 원칙 ··········································································· 164
중복제소 사례 대비 ······················································································ 176
[제2관] 실체법상의 효과 ·············································································· 171

제2장 변 론
제1절 변론의 의의 및 종류 ·············································································· 179
제2절 심리에 관한 제원칙 ················································································ 180
[제1관] 처분권주의 ······················································································ 180
처분권주의 사례 대비 ··················································································· 187
[제2관] 변론주의 ························································································· 188
석명권 ········································································································ 196
변론주의 사례 대비 ······················································································ 203
[제3관] 적시제출주의(공격방어방법의 제출시기) ·············································· 208
[제4관] 현행법상 집중심리를 위한 제도 ························································· 212
[제5관] 소송절차의 이의권 ··········································································· 214
제3절 변론의 준비(기일전의 절차) ···································································· 218
[제1관] 준비서면 ························································································ 218
[제2관] 변론준비절차 ·················································································· 222
제4절 변론의 내용과 소송행위 ········································································· 227
[제1관] 변론의 내용 ···················································································· 227
부인과 항변 ································································································ 229
소송에 있어서 형성권의 행사 ········································································ 232
[제2관] 소송행위 ························································································ 235
부제소 합의 ································································································· 236
소취하 합의 ································································································· 240
소송행위의 철회와 의사의 하자(무효·취소) ······················································ 243
변론의 내용과 소송행위 사례 대비 ································································· 247
제5절 변론의 실시 중 변론조서 ········································································ 251
제6절 기일에 있어서 당사자의 결석 ·································································· 255
기일의 불출석 사례 대비 ··············································································· 262
제7절 기일, 기간, 송달 중 ··············································································· 264
[제1관] 기간의 부준수와 소송행위의 추후보완 ················································ 264
[제2관] 송달 중 공시송달 ············································································· 267
제8절 소송절차의 정지 ···················································································· 270
소송절차 중단의 사례 대비 ············································································ 278

제3장 증 거
제1절 총 설 ·····································································································281
제2절 증명의 대상(요증사실) ············································································ 283
제3절 불요증 사실 ·························································································· 286
재판상 자백 사례 대비 ·················································································· 297
제4절 증거조사의 개시와 실시 ·········································································· 300
[제1관] 증거조사의 개시 ·············································································· 300
[제2관] 증거조사의 실시 ·············································································· 305
제5절 자유심증주의 ························································································· 321
제6절 증명책임 ······························································································· 326

제4편 소송의 종료

제1장 총 설 ······································································································ 333
제2장 당사자의 행위에 의한 종료
제1절 소의 취하 ····························································································· 336
제2절 청구의 포기·인낙 ··················································································· 347
제3절 재판상 화해 ·························································································· 349
제3장 종국판결에 의한 종료
제1절 재판일반 ······························································································· 355
제2절 판 결 ·····································································································357
[제1관] 판결의 종류 및 일부판결 ·································································· 357
[제2관] 판결의 효력 ···················································································· 360
판결의 편취 사례 대비 ·················································································· 366
기판력 일반 ································································································· 368
기판력 케이스 해결 방법 ··············································································· 372
※ 주관적 범위와 관련된 문제가 출제될 경우의 문제(채권자 대위소송) ··············· 373
※ 객관적 범위와 관련된 문제가 출제될 경우의 문제(선결적 법률관계) ··············· 374
※ 작용국면과 관련된 문제가 출제될 경우의 문제(동일소송물) ··························· 375
※ 작용국면과 관련된 문제가 출제될 경우의 문제(선결관계) ······························ 376
기판력의 주관적 범위 ··················································································· 377
기판력의 객관적 범위 ··················································································· 383
기판력의 시적 범위 ······················································································ 389
정기금판결에 대한 변경의 소 ········································································ 395

제5편 병합소송

제1장 병합청구소송(청구의 복수)
제1절 청구의 병합(소의 객관적 병합) ································································ 401
청구의 병합 사례 대비 ·················································································· 410
제2절 청구의 변경 ·························································································· 413
청구의 변경 사례 대비 ················································································· 420
제3절 중간확인의 소 ······················································································· 422
제4절 반 소 ··································································································· 425
제2장 다수당사자소송(당사자의 복수)
제1절 공동소송 ······························································································· 430
공동소송 사례 대비 ······················································································ 446
제2절 선정당사자 ···························································································· 448
제3절 제3자의 소송참가 ·················································································· 455
[제1관] 보조참가 ························································································· 455
[제2관] 공동소송적 보조참가 ········································································ 463
[제3관] 소송고지 ························································································· 467
[제4관] 독립당사자참가 ················································································ 470
[제5관] 공동소송참가 ··················································································· 481
제4절 당사자의 변경 ······················································································· 485

제6편 상소심절차

제1장 총 설
제1절 상소의 의의 및 종류 ·············································································· 497
제2절 상소요건 ······························································································· 499
상소 사례 대비 ···························································································· 504
제3절 상소의 효력 ·························································································· 506
제2장 항 소
제1절 항소의 제기 ·························································································· 510
재판장등의 항소장 심사권 ············································································· 510
항소의 취하 ································································································· 512
부대항소 ····································································································· 516
제2절 항소심의 종국적 재판(중 항소인용) ·························································· 520
제3장 상고 중 환송판결의 기속력 ········································································ 525

제7편 재심절차

Ⅰ. 재심의 개념 ································································································· 531
Ⅱ. 재심 적법요건 ······························································································ 531