2025 변호사.법무사 상법 판례강의

제1부 상법 판례 해설
[1] 2021년 상법 판례 총정리 11
제1편 총 칙 ·····························································································································11
➊ 부정한 목적으로 상호사용(대판 2021.7.15. 2016다25393) / 11
제2편 상행위 ······························································································································13
제1장 통 칙 ·····························································································································13
➊ 이익배당이나 중간배당의 법적 성격과 위법배당에 따른 부당이득반환청구권의 소멸시효(대판
2021.6.24. 2020다208621) / 13
➋ 근로계약상 보호의무 위반에 따른 근로자의 손해배상청구권과 상사소멸시효(대판 2021.8.19.
2018다270876) / 15
➌ 보험사고의 발생을 가장하여 청구 수령된 보험금 상당 부당이득반환청구권과 상사소멸시효(대판
2021.8.19. 2018다258074) / 16
➍ 부정취득한 보험금에 대한 부당이득반환청구권에 상사시효 적용여부(대판 2021.7.22. 2019다
277812. 전합) / 17
➎ 건설공사에 관한 도급계약에서, 수급인의 하자담보책임의 소멸시효기간 및 그 기산점(대판
2021.8.12. 2021다210195) / 20
➏ 상법상 유질계약에서 질권의 실행방법과 절차(대판 2021.11.25. 2018다304007) / 20
제2장 각 칙 ·····························································································································22
제3편 회사법 ······························································································································23
제1장 총 칙 ·····························································································································23
➊ 법인격부인(책임채권 발생시기): 신설회사에 대한 기존회사의 채무이행 청구(대판 2021.3.25.
2020다275942) / 23
➋ 법인격부인(역적용): 신설회사에 대한 개인이 부담한 채무이행 청구(대판 2021.4.15. 2019다
293449) / 24
제2장 합자회사 ··························································································································25
➊ 합자회사의 업무집행사원에 대한 권한상실선고 판결의 효력과 집행권의 부활(대판 2021.7.8.
2018다225289) / 25
제3장 주식회사 ··························································································································28
제1절 주식_주주권 ···································································································································28
➊ 주식의 양도의무와 경영권 양도의무와의 관계 및 압류된 주식양도청구권의 행사(대판 2021.7.29.
2017다3222) / 28
➋ 상법 제341조의 의미와 자기주식취득의 허용범위 및 요건(대판 2021.10.28. 2020다208058) / 29
➌ 주식회사가 배당가능이익이 아닌 차입금으로 자기주식을 취득할 수 있는지 여부(대판 2021.7.29.
2017두63337) / 32
제2절 기 관[주주총회/이사회/대표이사] ································································································33
➊ 주주총회결의에 의한 해임대상 이사에 퇴임이사 포함 여부(대판 2021.8.19. 2020다285406) / 33
➋ 주주총회결의의 부존재(무효) 확인을 구하는 소를 수인이 공동으로 제기한 경우의 법적 성격(대판
2021.7.22. 2020다284977 전합) / 35
➌ 이사회 결의 없는 전단적 대표행위를 믿은 제3자의 보호요건(대판 2021.2.18. 2015다45451 전합) / 36
➍ 주식회사의 경우 대표이사가 이사회 결의 없이 파산신청을 할 수 있는지 여부(대판 2021.8.26.
2020마5520) / 38
➎ 대표이사의[ 다른 업무담당이사에 대한 감시의무위반의 요건(대판 2021.11.11. 2017다222368) / 41
➏ 이사의 임무해태로 인한 손해배상책임의 성격과 지체책임 시기(대판 2021.5.7. 2018다275888) / 43
➐ 상법 제403조 제2항에 따른 서면에 기재되어야 하는 [이유]의 범위(대판 2021.5.13. 2019다
291399) / 45
➑ 주주대표소송에서 서면에 기재된 [이유]에 대한 법적 평가 및 청구추가 여부(대판 2021.7.15.
2018다298744) / 46
➒ 상장회사에서 주요주주 등 이해관계자와의 거래제한 규정을 위반한 신용공여의 법적 의미(대판
2021.4.29. 2017다261943) / 48
제4편 보험법 ······························································································································51
제1장 통 칙 ·····························································································································51
➊ 보험회사가 보험수익자와 보험금 지급책임의 존부 등에 다툼이 있는 경우 채무부존재확인을 구할
소의 이익(대판 2021.6.17. 2018다257958 전합) / 51
제2장 손해보험 ··························································································································53
➊ 상법 제682조(보험자대위)에서 정한 [제3자의 행위]에 고의 과실이 필요한지 여부(대판 2021.
6.10. 2020다298389) / 53
➋ 피보험자가 손해보험계약에 따라 수령한 보험금을 제3자의 손해배상책임액에서 공제 여부(대판
2021.6.30. 2018다288723) / 54
제3장 인보험 ······························································································································56
➊ 정신질환 등으로 자유로운 의사결정을 할 수 없는 상태에서의 사망과 보험약관 (대판 2021.2.4.
2017다281367) / 56
제5편 어음수표법 ······················································································································57
[2] 2022년 상법 판례 총정리 58
제1편 총 칙 ·····························································································································58
➊ 의사의 상인성 여부(대판 2022.5.26. 2022다200249) / 58
➋ 세무사의 상인성 여부(대판 2022.8.25. 2021다311111) / 59
➌ 영업양도인의 채권자가 채무인수 사실이 없음을 알게 된 경우와 영업양수인의 변제책임(대판
2022.4.28. 2021다305659) / 60
➍ 영업양도인의 경업금지를 주장할 수 있는 자의 범위(대판 2022.11.30. 2021다227629) / 62
제2편 상행위 ······························································································································65
제1장 통 칙 ·····························································································································65
➊ 지방자치단체가 기부자(회사)에게 갖는 기부채납채권과 상사소멸시효(대판 2022.4. 28. 2019다
272053) / 65
➋ 상행위인 투자계약상 주식매수청구권의 성질 등(대판 2022.7.14. 2019다271661) / 66
➌ 세무사 직무채권의 소멸시효(대판 2022.8.25. 2021다311111) / 68
➍ 토지보상법에 따른 부동산 매매계약과 소멸시효(대판 2022.7.14. 2017다242232) / 69
➎ 유치권의 불가분성과 유치권소멸청구의 범위(대판 2022.6.16. 2018다301350) / 70
제3편 회사법 ······························································································································72
제1장 주식회사 ··························································································································72
제1절 주식_주주권 ···································································································································72
➊ 주주가 영업양도의 무효확인을 구하는 사건(대판 2022.6.9. 2018다228462,228479) / 72
제2절 기 관[주주총회/이사회/대표이사] ································································································74
➊ 소수주주의 주주총회 소집청구에서 [이사회]와 [전자문서]의 의미(대판 2022.12.16. 2022그734)
/ 74
➋ 소수주주의 주주총회소집허가 신청과 회의목적사항의 범위(대판 2022.4.19. 2022그501) / 75
➌ 소수주주의 주주총회소집허가 신청과 회의 목적사항의 변경 등(대판 2022.9.7. 2022마5372) /
76
➍ 퇴임이사(대표이사)의 자격상실 사유(대판 2022.11.10. 2021다271282) / 79
제3절 회사의 회계 ····································································································································81
➊ 구체적인 배당금지급청구권(대판 2022.8.19. 2020다263574) / 81
➋ 중간배당금청구(대판 2022.9.7. 2022다223778) / 82
➌ 소수주주의 회계장부 등에 대한 열람 등사청구권과 이유기재의 정도 및 부당성에 관한 주장 증
명책임(대판 2022.5.13. 2019다270163) / 84
제4절 사채발행 ·········································································································································86
➊ 신주인수권부사채의 신주인수권의 행사로 신주가 발행된 사안에서 신주인수권부사채발행무효의
소와 신주발행무효의 소의 관계(대판 2022.10.27. 2021다201054) / 86
➋ 전환사채의 전환권의 행사로 신주가 발행된 사안에서 전환사채발행무효의 소와 신주발행무효의
소의 관계(대판 2022.11.17. 2021다205650) / 88
제4편 보험법 ······························································································································91
제1장 손해보험 ··························································································································91
➊ 보험자가 보험금을 지급한 경우에 구상권과 보험자대위의 관계(대판 2022.4.28. 2019다200843)
/ 91
➋ 신원보증보험계약의 법적성격과 구상책임의 범위(대판 2022.12.29. 2019다210697) / 92
제5편 어음수표법 ······················································································································96
➊ 어음금 지급행위의 부인과 소멸된 어음상채권 및 원인채권의 회복(대판 2022.5.13. 2018다
224781) / 96

[3] 2023년 상법 판례 총정리 97
제1편 총 칙 ·····························································································································97
➊ 변호사와 법무법인이 상법상 상인인지 여부(대판 2023.7.27. 2023다227418) / 97
➋ 영업양도 후 소멸시효 중단 등이 상호를 속용하는 양수인에 미치는 지 여부(대판 2023.12.7.
2020다225138) / 98
제2편 상행위 ···························································································································100
제1장 통 칙 ···························································································································100
제2장 각 칙 ···························································································································100
제3편 회사법 ···························································································································101
제1장 주식회사 ························································································································101
제1절 주식_주주권 ·································································································································101
➊ 주주평등의 원칙(금전지급약정)(대판 2023.7.13. 2022다224986) / 101
➋ 주주평등의 원칙(동의권 부여)(대판 2023.7.13. 2021다293213) / 104
➌ 명의개서대리인을 상대로 주주명부 열람 등사 가처분 신청(대판 2023.5.23. 2022마6500)
/ 107
제2절 기 관[주주총회/이사회/대표이사] ······························································································109
➊ 이사의 행위에 대하여 경영판단의 원칙을 적용하기 위한 요건 등(대판 2023.3.30. 2019다
280481) / 109
➋ 임기만료전 이사 해임시 손해배상책임 성립기준인 정당한 이유의 의미와 범위 (대판 2023.8.31.
2023다220639) / 112
➌ 상법 제398조의 입법 및 개정취지/사후승인의 효력(대판 2023.6.29. 2021다291712) / 113
➌-1 비교판례[법률개정전]: 사후 승인과 묵시적 추인[대판 2007.5.10. 2005다4284] / 115
➍ 업무집행지시자 등을 상대로 한 회사의 손해배상청구권의 소멸시효(대판 2023.10.26. 2020다
236848) / 116
➎ 법인의 소송대표자의 적법성 판단(대판 2023.6.29. 2023다210953) / 117
제3절 회사의 회계 ·································································································································118
제4절 사채발행 ·······································································································································118
제4편 보험법 ···························································································································119
제1장 통 칙 ···························································································································119
➊ 보험사고나 보험금액의 확정절차와 보험약관의 해석상 한계(대판 2023.10.12. 2020다232709) /
119
제2장 손해보험 ························································································································121
➊ 피해자의 직접청구권과 화재보험사가 보험자대위로 취득한 직접청구권 사이의 관계(대판
2023.4.27. 2017다239014) / 121
➋ 자동차보험계약의 자기신체사고에서 [자동차를 그 용법에 따라 사용]의 의미 (대판 2023.2.2.
2022다266522) / 124
제3장 인보험 ···························································································································125
➊ 상해사망보험과 면책약관의 의미(대판 2023.2.2. 2022다272169) / 125
➋ 상해보험에서 인과관계의 증명책임자와 증명정도(대판 2023.4.27. 2022다303216) / 127
➌ 무보험자동차에 의한 상해담보특약의 중복보험자 중 1인의 보험자대위 사건(대판 2023.6.1. 2019
다237586) / 129
➍ 자동차상해보험의 성격 보험약관의 해석원칙(대판 2023.6.15. 2021다206691) / 131
➎ 생명보험에 해당여부와 보험금청구권의 성격(대판 2023.6.29. 2019다300934) / 132
제5편 어음수표법 ····················································································································133
[4] 2024년 상법 판례 총정리 134
제1편 총 칙 ···························································································································134
제2편 상행위 ···························································································································134
제1장 통 칙 ···························································································································134
➊ 회사의 행위는 영업을 위하여 한 것으로 추정되는지 여부(대판 2024.3.12. 2021다309927) / 134
제3편 회사법 ···························································································································137
제1장 총 칙 ···························································································································137
➊ 기존회사가 채무면탈이라는 위법한 목적달성을 위해 회사제도를 남용한 경우 신설회사의 소멸시
효 완성 주장이 신의칙상 허용되는지 여부(대판 2024.3.28. 2023다265700) / 137
제4편 보험법 ···························································································································139
제1장 통 칙 ···························································································································139
제2장 손해보험 ························································································································139
➊ 상법 제682조에서 정한 보험자 대위의 상대방에 승낙피보험자가 포함되는지 여부(대판
2024.5.9. 2022다290648) / 139
제5편 어음수표법 ····················································································································140

제2부 선택형 예상문제
[1] 2021년 판례 선택형 예상문제 143
[2] 2022년 판례 선택형 예상문제 152
[3] 2023년 판례 선택형 예상문제 164
[4] 2024년 판례 선택형 예상문제 173
판례색인 ···································································································································175