민법연구 제10권

1. 어느 법학교수가 살아온 이야기 ····················· 23

2. 우리 민법학 70년의 성과와 앞으로의 과제
Ⅰ. 序·················································································································· 23
Ⅱ. 民法典 制定 前의 우리 民法學·························································· 25
1. 「無로부터의 출발」·············································································· 25
2. 「飜譯法學」···························································································· 26
3. 「飜案法學」···························································································· 30
Ⅲ. 民法典의 制定과 우리 民法學···························································· 32
1. 民法典 起草에의 關與········································································ 32
2. 『民法案意見書』···················································································· 36
Ⅳ. 民法典의 解釋論的 處理······································································· 40
1. 교과서의저술······················································································ 40
2. 물권행위론: 새로운 규정의 해석문제Ⅰ ······································· 42
3. 소멸시효 완성의 효과: 새로운 규정의 해석문제Ⅱ ··················· 49
4. 전세권: 새로운 규정의 해석문제Ⅲ ··············································· 54
5. 이른바 대물변제의 예약: 새로운 규정의 해석문제Ⅳ ··············· 59
Ⅴ. 民法 制定 후 새로이 제기된 民法問題··········································· 62
1. 부동산임차인의 보호·········································································· 62
2. 소비자의 보호 「약관의 규제에 관한 법률」․「할부거래에 관한 법률」 등······················································································ 66
3. 다양한 事故의 처리············································································ 70
Ⅵ. 우리 民法學의 特殊性 혹은 問題點·················································· 71
1. 교과서 법학···························································································· 71
2. 日本法學의 「克服」?: 「독립한」 민법학 보다「우수한」
민법학을································································································ 76
3. 「현재 있는 법」의 인식으로부터의 출발········································ 86
Ⅶ. 小　　結····································································································· 87

3. 김증한 교수의 생애와 학문 점묘
― 개인적인 시각에서 ―
Ⅰ. 들어가기전에·························································································· 91
Ⅱ. 김증한의 삶······························································································· 95
Ⅲ. 김증한의 학문························································································ 102
1. 서양법제사·························································································· 102
2. 전세권과 국가재건최고회의···························································· 107
3. 번역작업······························································································ 111
Ⅳ. 소　　결··································································································· 117

4. 이 시대 사법부의 위상과 과제
― 6년의 경험으로부터 ―
Ⅰ. 들어가기 전에························································································ 123
Ⅱ. 우리 국민은 소송을 꺼리는가? ························································ 125
1. 대법원에 접수되는 사건의 엄청난 수·········································· 125
2. 사건 처리의 실제·············································································· 126
3. 우리 국민은 소송을 꺼리는가, 아니면 우리 사회는
‘소송과잉사회’인가? ·········································································· 127
4. 대법원에서의 사건 폭주에 대하여················································ 132
Ⅲ. 사회의 변화와 법의 대응― 성전환의 경우································ 133
1. 새로운 사회현상과 법․판례························································· 133
2. 성전환에 대한 법적 처리― 주로 강간죄의 대상이라는
관점에서······························································································ 138
Ⅳ. 과거사의 청산························································································ 146
1. 과거사의 청산에 관한 여러 법률들·············································· 146
2. 과거사 관련 민사소송에서의 시효소멸 주장의
신의칙 위반 여부············································································ 148
Ⅴ. 법적 쟁점과 정책 판단······································································· 161
1. 입법적인 해결이라는 것·································································· 161
2. 법치주의에서 입법의 역할······························································ 162
Ⅵ. 맺으면서··································································································· 164

5. 민법학에서 법철학은 무엇인가? ················· 169
― 개인적 점묘 ―

6. 이자 등 지급의 시기․방법 등에 관한 새로운 약정과
민법 제163조 제 1 호의 단기소멸시효
Ⅰ. 들어가기 전에························································································ 193
Ⅱ. 민법 제63조 제1호의 입법 경과 및 그에 관한 판례의
태도············································································································ 195
1. 입법의경과························································································ 195
2. 판례의태도························································································ 197
Ⅲ. 지급의 시기․방법 등에 대한 새로운 약정과 민법 제63조
제1호········································································································ 202
1. 설　　례······························································································ 202
2. 문제의 해결························································································ 204
Ⅳ. 소멸시효제도에 관한 최근의 입법동향과 우리나라에서의
입법작업··································································································· 211
1. 독일과 프랑스···················································································· 211
2. 일　　본······························································································ 212
3. 우리나라에서의 입법작업 내용 및 민법 해석에의 시사·········· 214
Ⅴ. 소　　결··································································································· 215

7. 민법 제197조 제 2 항의 “본권에 관한 소에서
패소한 때”의 해석에 대하여
Ⅰ. 서················································································································ 217
Ⅱ. 민법 제97조 제2항의 연혁과 입법례 및 규정이유··············· 219
1. 민법 제정과정···················································································· 219
2. 일　　본······························································································ 220
3. 프랑스······························································································ 222
4. 독　　일······························································································ 223
5. 스위스······························································································ 225

8. 獨自的인 債務不履行類型으로서의 履行拒絶 再論
― 判例의 形成 및 法律效果를 중심으로 ―
Ⅰ. 머리말··································································································· 233
Ⅱ. 履行拒絶에 관한 近來의 裁判例 槪觀··········································· 236
1. 出發點이되는裁判例 ― 대3판1993. 6. 25, 93다1821 ··············· 236
2. 獨自的 債務不履行類型으로서의 履行拒絶에 관한 判例法理의
定立― 대판2005. 8. 19, 2004다3173 ············································ 242
3. 履行拒絶에 관한 近者의 裁判例 ···················································· 246
Ⅲ. 독일의 2002년 債權法 大改正과 履行拒絶··································· 257
1. 들어가기 전에···················································································· 257
2. 2002년 改正에서의 履行拒絶·························································· 258
Ⅳ. 履行拒絶의 法律效果― 塡補賠償請求權을 중심으로··············· 261
1. 序·········································································································· 261
2. 履行拒絶로 인한 塡補賠償額 算定의 基準時······························ 262
3. 塡補賠償請求權에 대한 遲延損害金請求······································ 263
Ⅴ. 글을 맺으면서― 우리 民法學의 어떠한 樣相에 대하여········· 275

9. 한국의 제조물책임법
Ⅰ. 서················································································································ 281
Ⅱ. 製造物責任法理의 展開!― 製造物責任法의 制定에
이르기까지······························································································· 283
1. 裁判例의 發展···················································································· 283
2. 立法化의 움직임················································································ 290
Ⅲ. 製造物責任法의 內容············································································ 291
1. 製造物責任法의 骨格········································································ 291
2. 약간의 附加的 說明·········································································· 294
Ⅳ. 小　　結··································································································· 302

10. 은행에 예입 중인 등록금 등에 대한
압류의 허용 여부
Ⅰ. 서················································································································ 307
Ⅱ. 대법원결정의 사실관계와 쟁점························································ 309
Ⅲ. 채권의 강제적 실현과 압류······························································· 310
Ⅳ. 등록금의 학교법인 회계상의 지위와 압류금지························ 314
Ⅴ. 대법원의 종전 재판례들····································································· 316
Ⅵ. 대법원의 태도에 대한 평가와 법적 대응····································· 318

11. [번역] 遺言相續의 初期 歷史 ··················· 323
― 메인, 고대법(Ancient Law) 제 6 장

12. 토지저당권에 기한 방해배제와 ··············· 365
건물신축의 중지청구
― 대법원 2006년 1월 27일 판결 2003다58454사건
(판례공보 2006상, 316면)

13. 채무자의 시효이익 포기는 그 후의 ············ 381
저당부동산 제 3 취득자에 대하여도 효력이 미치는가?
― 대법원 2015년 6월 11일 판결 2015다200227사건
(판례공보 2015상, 976면)

14. 자살면책제한조항에 의한 ‘보험사고’의 확장? ·· 391
― 대법원 2007년 9월 6일 판결 2006다55005사건
(법고을)의 射程範圍

15. 2007년 중요 민사판례 ― 채권편
1. 損害賠償額의 豫定············································································ 399
2. 事情變更의 原則················································································ 400
3. 住宅賃貸借·························································································· 402
4. 公序良俗에 반하는 利子約定에서 임의로 지급된 過剩利子의
返還請求······························································································ 405
5. 第三者의 債權侵害로 인한 不法行爲責任···································· 408

16. 書信으로 쓴 讀後感
― 非正統的 書評에서조차 벗어나서
Ⅰ. 앞머리에··································································································· 411
Ⅱ. 이상돈, 『법사회학 』(2000) ― 2000년12월7일····························· 414
Ⅲ. 김화진, 『소유와 경영』(2003) ― 2003년9월1일························· 417
Ⅳ. 강정인, 『서구중심주의를 넘어서』(2004) ― 2004년9월5일··· 419
Ⅴ. 이상돈, 『인권법』(2005) ― 2005년9월6일··································· 423
Ⅵ. 조규창, 『比較法(上)(下)』(2006) ― 2006년4월13일··················· 426
Ⅶ. 金相瑢,, 『家族法硏究 Ⅱ』(2006) 및 金疇洙․金相瑢,
『親族․相續法』, 제8판(2006) ― 2006년5월19일····················· 428
Ⅷ. 전원열 역, 『민주주의와 법원의 위헌심사』(2006)
― 2006년12월28일············································································· 431

17. 書信으로 쓴 讀後感․續
Ⅰ. 들어가기 전에························································································ 439
Ⅱ. 박수곤, 「프랑스법에서의 손해배상책임에 대한 개관
― 채무불이행책임을 중심으로」― 2004년7월23일················ 440
Ⅲ. 김현석 역, 『미국기업파산법』(2005) ― 2005년7월31일····· 442
Ⅳ. 『판사 한기택』(2006) ― 2006년7월26일······································· 445
Ⅴ. 서태영, 『피고인에게 술을 먹여라』(2007) ― 2007년3월3일··· 446
Ⅵ. 심헌섭 역, 『켈젠의 자기증언』(2009) ― 2009년7월2일········· 448
Ⅶ. 서을오, 『물권행위론에 관한 학설사적 연구』(2008)
― 2010년1월3일················································································· 450
Ⅷ. 김창록 역, 『일본국 헌법의 탄생』(2010)
― 2010년8월25일··············································································· 454
Ⅸ. 박지향, “에릭 홉스봄을 기리며” ― 2012년11월1일·············· 457
Ⅹ. 박찬운, 『빈센트 반 고흐, 새벽을 깨우다』(2015)
― 2015년6월15일··············································································· 459
Ⅺ 김인섭, 『기적은 끝나지 않았다』(2016) ― 2016년3월6일····· 461
Ⅻ 박찬운, 『경계인을 넘어서』(2016) ― 2016년4월13일·············· 466
ⅩⅢ. 김도균 역, 『합법성과 정당성』(2016) ― 2016년6월15일······ 469
ⅩⅣ. 안법영․윤재왕 역, 『법학 방법론』(2016)
― 2016년11월25일············································································ 472
ⅩⅤ. 홍영기, 『법학논문작성법』, 제2판(2016)
― 2016년12월25일············································································ 475
ⅩⅥ. 한동일, 『교회법률용어사전7』 등― 2017년12월8일··············· 478
ⅩⅦ. 한인섭, 『가인김병로』(2018) ― 2018년1월10일····················· 480
ⅩⅧ. Young-Whan Kim, Rechtsphilosophie und Strafrecht in
Deutschland und Korea(2017) ― 2018년2월17일··················· 482
ⅩⅨ. 김영환, 『자유주의적 법치국가』(2018) ― 2018년6월10일···· 484
ⅩⅩ. 전광석, 『한국헌법학의 개척자들』(2015) ― 2018년7월8일·· 486

18. [자료] 최근의 일본민법 개정:
계약법 및 소멸시효법
A. 머리말···································································································· 489
1. 최근 일본민법 개정의 외적 경과·················································· 489
2. 일본민법의 제정과 그 후의 개정들·············································· 491
3. 이번 개정의 배경·············································································· 492
4. 이번 개정의 방향과 범위································································ 493
B. 개정의 중요 내용···················································································· 493
Ⅰ. 총 칙 편································································································· 493
1. 법률행위에 관한 규정······································································ 493
2. 소멸시효에 관한 규정······································································ 495
Ⅱ. 채권편 총칙··························································································· 500
1. 채무불이행·························································································· 500
2. 법정이율의 유동화············································································ 503
3. 채권자대위권······················································································ 504
4. 채권자취소권······················································································ 506
5. 보　　증······························································································ 509
6. 채권양도······························································································ 516
7. 병존적 채무인수, 면책적 채무인수 및 계약상 지위의 이전에
관한 규정 신설·················································································· 521
8. 유가증권에 관한 규정 신설···························································· 523
Ⅲ. 계약총칙······························································································· 526
1. 계약의 해제························································································ 526
2. 약관 (“定型約款”)에 관한 규정― 제548조의2 이하····················· 527
3. 위험부담···························································································· 529
Ⅳ. 계약각칙······························································································· 530
제1. 계약의 성립― 이른바 발신주의 (제526조 제1항
우리 민법 제531조)의폐지································································ 530
제2. 매　　매······························································································· 530
1. 담보책임의 원칙적 폐지― 일반채무불이행의 체계에 흡수···· 530
2. 매매 규정의 다른 개정···································································· 534
제3. 도　　급······························································································· 535
1. 수급인의‘담보책임’ ·········································································· 535
2. 그 외의 개정······················································································ 537
제4. 임대차······························································································· 538
1. 존속기간······························································································ 538
2. 임차인의 원상회복의무․수거의무················································· 539
3. 부동산임차인의 방해배제청구권···················································· 539
4. 임차인에 의한 수선·········································································· 540
5. 보증금(｢敷金｣) ····················································································· 541
C. 기타의 개정······························································································ 543
Ⅰ. 총 칙 편································································································· 543
1. 법률행위······························································································ 543
Ⅱ. 채권편 총칙··························································································· 553
1. 변5　　제······························································································ 553
2. 상5　　계······························································································ 560
3. 경　　개······························································································ 564
Ⅲ. 채권편 각칙 계약·············································································· 566
1. 제3자를 위한 계약·········································································· 566
2. 증　　여······························································································ 567
3. 소비대차······························································································ 567
4. 사용대차······························································································ 572
5. 위　　임······························································································ 574
6. 임　　치······························································································ 576
7. 조　　합······························································································ 580
D. 소　　결···································································································· 585
조문 색인········································································································ 589
재판례 색인··································································································· 595
사항․인명 색인··························································································· 600