신 법학통론

제 1 편 ❙ 총 론

제1장 서 론 ···························································································· 3
제1절 인간사회와 규범 ··················································································· 3
Ⅰ. 인간과 사회 3 Ⅱ. 사회와 규범 4
제2절 법학의 필요성 ······················································································ 5
Ⅰ. 법학에의 반감 5 Ⅱ.법학지식의 필요성 6
Ⅲ. 법학공부의 방법 9

제2장 법의 본질 ························································································· 12
제1절 법의 개념 ··························································································· 12
Ⅰ. 법은 규범이다 12
Ⅱ. 법은 정치적으로 조직된 사회의 규범이다 14
Ⅲ. 법은 국가에 의하여 승인된 규범이다 14
Ⅳ. 법은 국가의 중심권력에 의하여 강제되는 규범이다 15
Ⅴ. 법과 유사한 용어 16
제2절 법의 구조 ··························································································· 17
Ⅰ. 행위규범(행위법) 18 Ⅱ . 강제규범(제재법, 제재규범) 18
Ⅲ. 조직규범(조직법) 19 Ⅳ. 법의 구성 20
제3절 법과 타 규범과의 관계 ······································································ 22
Ⅰ. 법과 도덕 22 Ⅱ . 법과 종교 26
Ⅲ. 법과 관습 28
제4절 법과 정치 및 경제 ············································································· 30
Ⅰ. 법과 정치 30 Ⅱ. 법과 경제 32

제3장 법의 목적 ························································································· 34
제1절 법의 목적(이념)의 개념 ····································································· 34
Ⅰ. 법의 목적의 의의 34
Ⅱ. 법의 목적에 관한 학자들의 견해 35
제2절 정 의 ····························································································· 36
Ⅰ. 정의의 의의 36 Ⅱ. 정의에 관한 학설 36
Ⅲ. 정의의 내용 39
제3절 합목적성 ····························································································· 42
Ⅰ. 합목적성의 의의 42 Ⅱ. 합목적성의 내용 43
제4절 법적 안정성 ························································································ 43
Ⅰ. 법적 안정성의 의의 43 Ⅱ. 법적 안정성의 요건 44
Ⅲ. 법적 안정성의 요구 44
제5절 법이념의 상호관계 ············································································· 45
Ⅰ. 법이념의 상호모순관계 45
Ⅱ. 법이념의 상호간의 적용관계 46 Ⅲ. 법이념의 조화관계 46

제4장 법의 생성과 계통 ············································································· 48
제1절 법의 생성 ··························································································· 48
Ⅰ. 서 설 48 Ⅱ. 사력의 공권력화 50
Ⅲ. 법의 발전 51
제2절 법의 계통 ··························································································· 54
Ⅰ. 서 설 54 Ⅱ. 대륙법계 55
Ⅲ. 영미법계 57

제5장 법의 연원 ························································································· 61
제1절 서 설 ····························································································· 61
제2절 성 문 법 ····························································································· 61
Ⅰ. 헌 법 63 Ⅱ. 법 률 63
Ⅲ. 명 령 64 Ⅳ. 규 칙 65
Ⅴ. 자치법규 65 Ⅵ. 조약 국제법규 66
제3절 불 문 법 ····························································································· 67
Ⅰ. 관 습 법 67 Ⅱ. 판 례 법 71
Ⅲ. 조 리(條理) 73

제6장 법의 체계 ························································································· 74
제1절 서 설 ····························································································· 74
제2절 실정법의 분류 ···················································································· 74
Ⅰ. 국내법과 국제법 74 Ⅱ. 공법 사법 사회법 75
Ⅲ. 일반법과 특별법 79 Ⅳ. 실체법과 절차법 80
Ⅴ. 강행법과 임의법 81 Ⅵ. 원칙법과 예외법 83
Ⅶ. 고유법과 계수법 84 Ⅷ. 조직법과 행위법 85

제7장 법의 효력 ························································································· 86
제1절 서 설 ····························································································· 86
제2절 법의 타당성과 실효성 ········································································ 87
Ⅰ. 의 의 87 Ⅱ. 타당성과 실효성의 관계 87
제3절 법효력의 근거 ···················································································· 89
Ⅰ. 법존립의 기초 89 Ⅱ. 법의 근거에 관한 학설 89
제4절 법의 형식적 효력 ··············································································· 94
Ⅰ. 법의 시간적 효력 94 Ⅱ. 법의 장소적 효력 96
Ⅲ. 법의 인적 효력 97

제8장 법의 적용과 해석 ············································································· 99
제1절 법의 적용 ··························································································· 99
Ⅰ. 사실의 확정 99 Ⅱ. 법의 발견 101
제2절 법의 해석 ·························································································· 102
Ⅰ. 의 의 102 Ⅱ. 해석의 방법 102

제9장 권리와 의무 ···················································································· 108
제1절 법률관계 ···························································································· 108
Ⅰ. 의 의 108 Ⅱ. 연혁적 고찰 109
제2절 권 리 ··························································································· 110
Ⅰ. 법과 권리 110
Ⅱ. 권리에 대한 법사상적 배경 111 Ⅲ. 권리의 본질 112
Ⅳ. 권리의 개념 114 Ⅴ. 권리의 분류 116
제3절 의 무 ··························································································· 120
Ⅰ. 의무의 개념 120 Ⅱ. 의무의 분류 121
제4절 권리 의무의 주체와 객체 ······························································· 122
Ⅰ. 권리 의무의 주체 122 Ⅱ. 권리 의무의 객체 124
제5절 권리의 행사와 그 제한 ···································································· 124
Ⅰ. 권리행사의 의의 124 Ⅱ. 권리행사의 방법 125
Ⅲ. 권리행사의 제한 126
제6절 권리 의무의 변동 ··········································································· 130
Ⅰ. 권리 의무의 변동의 의의 및 종류 130
Ⅱ. 권리 의무의 변동의 원인 131
제7절 권리의 구제 ······················································································ 133
Ⅰ. 권리의식 133 Ⅱ. 권리의 침해에 대한 구제 135

제10장 법학의 방법 ·················································································· 139
제1절 법해석학 ···························································································· 139
제2절 법사회학 ···························································································· 142
제3절 법 철 학 ··························································································· 144
제4절 법 사 학 ··························································································· 145
제5절 비교법학 ···························································································· 146


제 2 편 ❙ 각 론

제1장 헌 법 ························································································ 151
제1절 국 가 ··························································································· 151
제2절 헌법의 개념과 종류 ·········································································· 156
Ⅰ. 헌법의 개념 156 Ⅱ. 헌법의 종류 157
제3절 대한민국헌법 개요 ············································································ 159
Ⅰ. 헌법의 제정과 개정경과 159 Ⅱ. 헌법의 구조 162
Ⅲ. 헌법의 기본원칙 163
제4절 국민의 권리의무 ··············································································· 164
Ⅰ. 국민의 기본적 권리 164 Ⅱ. 국민의 기본적 의무 181
제5절 통치기구 ···························································································· 182
Ⅰ. 삼권분립과 정부형태 182 Ⅱ. 국 회 185
Ⅲ. 정 부 191 Ⅳ. 법 원 198
Ⅴ. 헌법재판소 201

제2장 행 정 법 ························································································· 203
제1절 서 설 ··························································································· 203
Ⅰ. 행정법의 개념 203 Ⅱ. 법치주의의 원칙 203
Ⅲ. 공법관계의 특성 204 Ⅳ. 공법상의 특별권력관계 206
제2절 행정조직 ···························································································· 207
Ⅰ. 서 설 207 Ⅱ. 국가행정조직 207
Ⅲ. 자치행정조직 212 Ⅳ. 공 무 원 213
제3절 행정작용 ···························································································· 216
Ⅰ. 서 설 216 Ⅱ. 행정행위 217
Ⅲ. 행정벌과 행정강제 219
제4절 행정구제 ···························································································· 222
Ⅰ. 행정상의 손해배상 222 Ⅱ. 행정상의 손실보상 222
Ⅲ. 행정쟁송 223

제3장 민 법 ························································································ 225
제1절 서 론 ··························································································· 225
Ⅰ. 민법의 의의 225 Ⅱ. 민법의 법원 226
Ⅲ. 민법의 지도원리 226
제2절 총 칙 ··························································································· 229
Ⅰ. 신의성실의 원칙과 권리남용금지의 원칙 229
Ⅱ. 권리의 주체 230 . 권리의 객체 236
Ⅲ. 법률행위 237 Ⅳ. 기 간 245
Ⅴ. 시 효 245
제3절 물 권 ··························································································· 245
Ⅰ. 물권의 의의 245 Ⅱ. 물권의 종류 246
Ⅲ. 물권의 변동 250
제4절 채 권 ··························································································· 253
Ⅰ. 채권의 의의 253 Ⅱ. 채권발생의 원인 253
Ⅲ. 채권의 목적 255 Ⅳ. 채권의 효력 255
Ⅴ. 다수당사자의 채권관계 263 Ⅵ. 채권양도와 채무인수 264
Ⅶ. 채권의 소멸 265
제5절 친 족 ··························································································· 267
Ⅰ. 서 설 267 Ⅱ. 친족관계 268
Ⅲ. 가족의 범위와 자의 성과 본 268 Ⅳ. 혼 인 269
Ⅴ. 친 자 275 Ⅵ. 후 견 281
제6절 상 속 ··························································································· 281
Ⅰ. 서 설 281 Ⅱ. 상속의 순위 282
Ⅲ. 상 속 분 283 Ⅳ. 상속의 승인과 포기 284
Ⅴ. 특별연고자에 대한 상속재산의 분여 285
Ⅵ. 유 언 285 Ⅶ. 유 류 분 286

제4장 상 법 ························································································ 288
제1절 서 론 ··························································································· 288
Ⅰ. 상법의 개념 288 Ⅱ. 상법의 법원 292
Ⅲ. 상법의 특성과 경향 293
제2절 총 칙 ··························································································· 295
Ⅰ. 상 인 295 Ⅱ. 상인의 보조자 300
Ⅲ. 영 업 소 302 Ⅳ. 상 호 303
Ⅴ. 상업장부 305 Ⅵ. 상업등기 306
Ⅶ. 영업양도 307
제3절 상행위법 ···························································································· 309
Ⅰ. 상행위법의 개념 309 Ⅱ. 상행위법 총칙 311
Ⅲ. 상행위법 각칙 314
제4절 회 사 ··························································································· 321
Ⅰ. 회사법 통칙 321 Ⅱ. 합명회사 324
Ⅲ. 합자회사 324 Ⅳ. 주식회사 325
Ⅴ. 유한책임회사 335 Ⅵ. 유한회사 336
제5절 보 험 ··························································································· 336
Ⅰ. 보험의 의의 336 Ⅱ. 보험의 종류 337
Ⅲ. 손해보험 338 Ⅳ. 인 보 험 338
제6절 해 상 ··························································································· 340
Ⅰ. 해상법의 의의 340
Ⅱ. 해상기업의 물적 조직(선박) 340 Ⅲ. 해상기업의 인적 조직 341
Ⅳ. 해상운송 341 Ⅵ. 해상기업의 위험 342
제7절 어음 수표 ························································································ 343
Ⅰ. 어음 수표의 의의 343 Ⅱ. 환 어 음 343
Ⅲ. 약속어음 347 Ⅳ. 수 표 348
Ⅴ. 어음 수표의 경제적인 분류 348

제5장 형 법 ························································································ 353
제1절 서 론 ··························································································· 353
Ⅰ. 형법의 의의 353 Ⅱ. 형법이론 354
Ⅲ. 죄형법정주의 357
제2절 범 죄 론 ··························································································· 359
Ⅰ. 범죄의 성립 359 Ⅱ. 미수범과 불능범 365
Ⅲ. 공 범 367 Ⅳ. 범죄의 수 369
제3절 형 벌 론 ··························································································· 371
Ⅰ. 형벌의 의의 371 Ⅱ. 형벌의 종류 371
Ⅲ. 형의 선고유예 372 Ⅳ. 형의 집행유예 372
Ⅴ. 가 석 방 373
제4절 각종의 죄 ·························································································· 373
Ⅰ. 개인의 법익에 대한 죄 374 Ⅱ. 사회적 법익에 대한 죄 381
Ⅲ. 국가적 법익에 대한 죄 383 Ⅳ. 컴퓨터와 범죄 386

제6장 사 회 법 ························································································· 388
제1절 자본주의의 성립과 그 수정 ····························································· 388
Ⅰ. 자유주의와 자본주의 388 Ⅱ. 자본주의 경제사회 390
제2절 근대시민법원리와 사회법의 필요성 ················································· 393
Ⅰ. 근대시민법원리 393 Ⅱ. 사회법의 등장 395
제3절 노 동 법 ··························································································· 395
Ⅰ. 노동법의 개념 395 Ⅱ. 노동법의 내용 398
제4절 경 제 법 ··························································································· 409
Ⅰ. 독점자본주의와 사회조직 409 Ⅱ. 우리나라의 경제법 413
제5절 사회보장법 ························································································ 414
Ⅰ. 사회보장법의 의의 414 Ⅱ. 우리나라의 사회보장법 416

제7장 소 송 법 ························································································· 417
제1절 총 설 ··························································································· 417
Ⅰ. 소송과 소송법 417 Ⅱ. 법 원 417
Ⅲ. 소송당사자 418
제2절 민사소송 ···························································································· 419
Ⅰ. 소의 제기 420 Ⅱ. 소의 종류 421
Ⅲ. 소송의 심리 423 Ⅳ. 판 결 425
제3절 형사소송 ···························································································· 426
Ⅰ. 형사소송의 목적과 그 구조 426 Ⅱ. 수 사 427
Ⅲ. 심 판 430

제8장 국제사법 ·························································································· 432
제1절 서 론 ··························································································· 432
Ⅰ. 국제사법의 의의 432 Ⅱ. 국제사법의 본질 433
Ⅲ. 국제사법의 명칭 433 Ⅳ. 국제사법의 법원 434
제2절 총론적 과제 ······················································································ 435
Ⅰ. 법률관계의 성질결정 435 Ⅱ. 연결점의 확정 436
Ⅲ. 준거법의 적용 437 Ⅳ. 공서법과 반정법 438

제9장 국 제 법 ························································································· 440
제1절 국제법의 개념 ··················································································· 440
Ⅰ. 국제법의 의의 440 Ⅱ. 국제법의 법적 성질 441
Ⅲ. 국제법의 법원 441 Ⅳ. 국제법과 국내법 442
제2절 국제법의 주체 ··················································································· 443
Ⅰ. 국 가 443 Ⅱ. 개 인 444
Ⅲ. 국제기구 445
제3절 국제교섭기관 ····················································································· 447
Ⅰ. 외교사절 447 Ⅱ. 영 사 448
제4절 조 약 ··························································································· 449
Ⅰ. 조약의 체결 449 Ⅱ. 조약의 종류 450
Ⅲ. 조약의 효력 451 Ⅳ. 조약의 소멸 452
제5절 국제분쟁의 해결 ··············································································· 452
Ⅰ. 분쟁의 평화적 해결 452 Ⅱ. 분쟁의 강제적 해결 454
제6절 전쟁법규 ···························································································· 454
Ⅰ. 전쟁의 개시 455 Ⅱ. 육전 해전 공중전 455
Ⅲ. 전투법규위반의 제재 455 Ⅳ. 전쟁의 종료 456
제7절 중 립 ··························································································· 456
Ⅰ. 중립의 의의 456 Ⅱ. 중립국의 권리와 의무 457

❙ 찾 아 보 기 ❙ ··························································································· 458