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최영덕 탁마민사소송법 사례연습(제1판)

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작품 소개

민사소송법은 민사집행법과 함께 민사절차법으로 기타 절차법의 기본이 되는 중요한 법이다.
이것을 이해하고 실제 적용하는 것은 소송실무의 기본이 되며 권리실현의 최후의 단계에 해당한
다.

절차법은 기본적으로 실체법 공부하는 것과 학문적 차원이 다르다. 예를 들어 유적지의 의미를
역사로 배우는 것과 유적지를 찾아가는 과정을 이론으로 배운다고 생각하면 비유가 될 수 있을
까? 무조건 한 번이라도 유적지를 체험해 본다면 이론이 무슨 소용이라고 반문할 수도 있을 것이
다. 절차법이 마치 그와 같아서 이론을 안다고 하여 실제 소송을 자신할 수 없으므로 유사한 사
례를 이론을 바탕에 두고 풀어보는 과정이 반드시 필요하다. 특히 일반적 2차 고시 서술형 시험
에서는 말할 나위가 없을 것이다.

탁마민사소송법 사례연습은 기본강의을 마치고 이론의 실무적용을 위한 사례연습 교재이다. 저자
가 20여년 간 판례 사안을 참고하여 창작한 문제도 있으며, 각종 고시시험에 논의되었던 동일한
판례를 바탕으로 사안을 변형하지 아니하고 만든 사례도 있다. 단순히 고시 사례문제를 차용하지
아니하였다 점을 강조하며 그런 의미에서 편저가 아닌 저술이라고 할 수 있다.

이 책의 가장 의미있는 점은 채점자의 기준과 눈으로 답안작성을 하였다는 것이다.
변호사, 변리사와 법무사 수험생 중에 여기의 답안형식을 이해하고 작성하여 수석이나 우수한 성
적을 취득할 수 있었다는 수기는 강사생활에서 자주 목격할 수 있을 정도로 증명된 답안작성이라
고 감히 말할 수 있다. 동일한 자랑일 수 있는데, 요즘 변호사 채점기준표에 가장 최적화된 답안
을 구성한 책은 이 책이 유일하다는 점을 강조한다. 아울러 사례연습에 판례를 직접 목격하도록
각주 처리하였다 점을 설명한다..

이 탁마민사소송법 사례연습은 이미 7년 정도 로스쿨과 학원가에서 수업용 제본으로 사용하다가
변리사스쿨의 도움으로 새롭게 출판하는데, 그동안 법과대학 및 법학전문대학원, 고시학원의 수강
생들이 신뢰해준 민사소송법 사례연습 교재라는 것을 반증하는 것으로 이해할 수 있다. 합격에
도음이 되기를 바라는 마음으로 머릿글을 남긴다.

2024.3.3

저자 최영덕 씀

목차

[ PART 01 ] 총론 1

제1장 민사소송과 다른 소송절차의 관계 ························································ 2
1. 행정소송과 민사소송의 관계 ·································································· 2
2. 전문소송 변경의 이송 및 제척기간······················································· 6
3. 민사소송과 가사소송의 관계 ·································································· 9
4. 절차와 비송절차의 비교······································································· 12
제2장 신의성실의 원칙/소송요건의 지위 ······················································ 15
1. 소송절차에서 신의성실의 원칙 ···························································· 15
2. 집행단계에서 신의칙 적용 ··································································· 18
3. 소송요건의 소송법상 의미 ··································································· 20

[ PART 02 ] 소송의 주체와 객체 24

제1장 법원 ···································································································· 25
제01절 재판권 ··································································································· 25
1. 재판권의 인적 범위 ·············································································· 25
2. 국제재판관할권 ····················································································· 28
3. 국제소송에서 중복제소금지(소송경랍) ················································· 30
4. 국제재판관할합의 ·················································································· 33
5. 섭외소송에서 소송비용담보제도 ·························································· 35
제02절 관할과 이송 ·························································································· 37
1-1. 사물관할의 변론관할 성부 ······························································· 37
1-2. 사물관할과 관할항정의 원칙··························································· 39
2. 토지관할의 경합··················································································· 41
3-1. 변론관할과 관련재판적 ···································································· 45
3-2. 합의관할과 관련재판적 ···································································· 48
3-3. 관련재판적과 이송············································································ 50
4-1. 합의관할 유형 및 약관규제법························································· 53
4-2. 합의관할의 취소가부 ········································································ 55
5-1. 전속관할합의의 편의이송································································· 57
5-2. 특허소송의 전속관할과 이송··························································· 60
5-3. 이송에 대한 불복방법······································································ 62
6. 전속관할의 경합··················································································· 66
제03절 공정한 재판을 위한 제도/제척과 기피((§41~§50) ······························· 69
1. 제척사유 ································································································ 69
2. 기피절차 계속의 하자 치유 여부 ························································ 71
3. 기피제도와 항고절차 ············································································ 73
제2장 당사자(원고와 피고/소송대리인) ····················································· 76
제01절 소송법상 당사자 ··················································································· 76
1-1. 당사자확정과 표시정정 ···································································· 76
1-2. 법인의 당사자동일성과 표시정정 ···················································· 80
1-3. 비법인 사단의 당사자확정과 표시정정··········································· 85
2-1. 제소전 사망자 상대소송과 시효중단··············································· 89
2-2. 제소전 사망과 표시정정 ··································································· 92
3. 성명모용소송························································································· 95
4-1. 법인격 부인론 ··················································································· 97
4-2. 법인격부인론의 역적용 ·································································· 100
제02절 당사자능력=권리능력 ·········································································· 104
1-1. 법인과 조합의 당사자능력 ····························································· 104
1-2. 대립당사자주의와 당사자능력 ························································ 106
1-3. 법인격없는 단체와 조합의 당사자능력/적격································ 108
제03절 당사자적격(=관리처분권ㆍ소송수행권의 유무, 집행적격) ····················· 112
1. 합유와 당사자적격 ·············································································· 112
2. 총유의 당사자적격 ·············································································· 114
3. 이행의 소의 당사자적격···································································· 118
4. 파산자를 상대로 한 소송··································································· 121
5-1. 채권자대위소송의 적법요건과 직권조사항···································· 123
5-2. 채권자대위소송과 당사자적격 ······················································ 126
5-3. 채무자없는 채권자대위소송의 적부·············································· 132
5-4. 채권자대위소송의 당사자적격과 시효항변···································· 135
6-1. 압류와 추심소송의 당사자적격 ······················································ 138
6-2. 압류추심소송과 채권자대위소송 관계 ··········································· 140
7. 당사자적격과 상소심 판단 ································································· 142
8. 채권자취소소송의 소송물 ··································································· 145
9-1. 선정당사자의 행위의 효력 ····························································· 148
9-2. 선정당사자의 선임의 묵시적 철회 ················································ 150
9-3. 선정당사자의 지위와 중복제소 여부············································· 153
10. 무효확인의 소에서 당사자적격 ························································ 156
제04절 소송능력과 변론능력 ··········································································· 158
1. 미성년자의 소송행위 ·········································································· 158
2. 변론능력과 소송행위 ·········································································· 163
제05절 소송대리인과 대리권 ··········································································· 166
1. 법정대리인의 적식과 적법요건 ·························································· 166
2. 법정대리권의 상실과 효력 ································································· 168
3. 법인 대표자의 지위와 소송요건························································ 170
4. 법인의 대표권과 무효행위 추인························································ 172
5. 무권대리와 치유················································································· 176
6. 무권대리인의 행위 ·············································································· 179
7. 소송대리권의 범위 ·············································································· 181
제3장 소송의 객체와 권리보호요건 ························································· 183
제01절 소송물 ································································································ 183
1. 소송물과 공격방어방법의 구별 ·························································· 183
2. 소송물의 특정 ····················································································· 185
3. 채권양도에서 소송물의 특정과 효과 ················································· 187
제02절 권리보호요건 ······················································································ 190
1. 장래이행의 소의 권리보호이익 ·························································· 190
2-1. 확인의 소의 이익 ··········································································· 192
2-2. 확인의 이익과 지적의무 ································································ 194
2-3. 증서진부확인의 소익 ······································································ 197
2-4. 확인의 소의 이익 ··········································································· 199
3. 공유물분할소송에서 소의 이익 ·························································· 201
4. 채권자취소소송의 권리보호이익 ························································ 203

[ PART 03 ] 제1심 소송절차 205

제1장 소제기와 효과 ··············································································· 206
제01절 소송법상 당사자 ················································································· 206
1. 주소보정과 소장각하명령 ··································································· 206
2. 소송물과 소제기의 효과···································································· 208
3-1. 응소와 시효중단 및 일부청구······················································· 210
3-2. 일부청구와 청구취지확장의 시효중단 ··········································· 213
3-3. 일부청구와 시효중단 ······································································ 218
4-1. 추심의 소와 시효중단···································································· 222
4-2. 당사자적격과 시효중단 ·································································· 224
5. 채권양도와 시효중단 ·········································································· 226
6. 시효중단을 위한 재소의 이익 ··························································· 229
7. 채권지취소소송에서 제척기간···························································· 232
8-1. 채권자대위소송의 중복제소 ··························································· 235
8-2. 상계항변의 중복제소와 재소금지 ·················································· 239
제2장 변론과 심리 ··················································································· 242
제01절 변론절차 ····························································································· 242
1-1. 무변론청구기각판결 가부와 변론절차 ··········································· 242
1-2. 무변론청구기각판결 가부와 심급이익과 지적의무 ······················· 244
2. 진술간주와 재판상 자백···································································· 247
3. 소취하 간주 ························································································ 249
4. 자백간주 ······························································································ 251
5-1. 예고없는 사실의 주장금지 ····························································· 253
5-2. 자백간주와 진술간주 및 예고없는 사실 주장금지······················· 255
제02절 처분권주의(§203) ··············································································· 258
1-1. 일부청구와 처분권주의 위반························································· 258
1-2. 일부청구와 상계 ············································································· 260
2. 부진정연대채무에서 심판범위···························································· 262
3-1. 소극적 확인의 소의 심판범위······················································· 265
3-2. 소극적 확인의 소변경과 처분권주의············································· 268
4. 처분권주의와 상환이행판결 ······························································· 271
5. 건물철거청구소송에서 매수청구권의 행사 ········································ 273
6. 채권자대위소송에서 처분권주의 ························································ 277
제03절 변론주의 ····························································································· 280
1. 유권대리와 변론주의 ·········································································· 280
2. 주요사실과 간접사실의 사실인정 범위 ············································· 283
3-1. 변론주의에서 주요사실 ·································································· 287
3-2. 주장책임과 주요사실 ······································································ 289
3-3. 주요사실과 간접사실의 추단························································· 292
4. 석명의무 내지 지적의무···································································· 295
5. 변론재개의무와 지적의무 ··································································· 298
6. 동시이행항변과 지적의무 ··································································· 302
7. 실기한 공격방어 방법과 상계 ··························································· 305
제04절 소송행위 ····························································································· 308
1. 부인과 항변 ························································································ 308
2. 조건부 항변 ························································································ 310
3. 항변부제출의 효과 ·············································································· 312
4-1. 소송상 합의의 허부와 효력 ··························································· 315
4-2. 조건부 소취하계약의 효력 ····························································· 317
4-3. 부제소합의의 효력········································································· 320
5. 소송상형성권의 행사 ·········································································· 322
6. 소송행위의 철회와 취소···································································· 324
제05절 송달과 소송행위 추완 ········································································· 328
1-1. 보충송달·························································································· 328
1-2. 보충송달의 효력 ············································································· 331
2-1. 우편송달·························································································· 333
2-2. 항소취하 간주에서 발송송달························································· 336
3. 공시송달의 효력 등 ············································································ 340
4-1. 공시송달과 추완항소 ······································································ 344
4-2. 공시송달과 추완항소 ······································································ 347
4-3. 공시송달과 추완항소 ······································································ 349
제06절 절차의 중단 등 ··················································································· 351
1. 실종선고의 효력과 절차중단/추완 ···················································· 351
2. 소송절차의 중단과 수계···································································· 353
3. 누락한 상속인에 대한 중단판결의 효력 ··········································· 355
제3장 증거법 ··························································································· 357
제01절 증거조사와 방법 ················································································· 357
1-1. 유일한 증거신청과 증인신문························································· 357
1-2. 보조사실의 유일한 증거신청························································· 360
2. 증언거부권과 취재원 비닉권 ····························································· 362
3. 서면증언제도······················································································· 364
4. 증인불출석에 대한 제재···································································· 366
5. 당사자신문 ·························································································· 368
6. 녹취와 검증 ························································································ 370
제02절 서증 ···································································································· 372
1. 서증의 진정성립················································································· 372
2. 서증의 종류와 증명 ············································································ 378
3. 사본의 증거력 ····················································································· 382
4. 자기문서의 증거력 ·············································································· 385
5. 서증과 변론조서의 효력···································································· 388
6-1. 문서제출명령제도 ··········································································· 391
6-2. 비밀심리제도 ··················································································· 393
6-3. 문서제출명령과 비밀심리제도 ························································ 395
제03절 불요증사실 ·························································································· 397
1. 선행자백 ······························································································ 397
2. 간접사실과 자백················································································· 399
3. 재판상 자백의 취소와 철회······························································· 401
4. 현저한 사실과 경험칙 ········································································ 403
5. 불요증사실의 자백과 과실상계 ·························································· 405
제04절 자유심증주의와 증명책임 ···································································· 408
1. 자유심증주의의 증명도······································································ 408
2. 손해배상액 산정과 자유심증주의······················································ 410
3. 증거계약과 자유심증주의 ··································································· 413
4. 제3자의 서면 부제출과 증명방해 ······················································ 415
5-1. 의료과오소송에서 증명책임 ··························································· 417
5-2. 의사의 설명의무 존부와 증명책임 ················································ 419
6. 청구이의의 소/소극적확인의소의 증명책임 ······································ 422
7-1. 법률상 추정과 증명책임 ······························································ 424
7-2. 법률상 추정과 증명책임 ································································ 426
8. 공해소송과 간접반증이론 ··································································· 428

[ PART 04 ] 소송의 종료 431

제1장 당사자의 행위에 의한 종료 ·························································· 432
제01절 소취하 ································································································ 432
1. 소취하의 효력 ····················································································· 432
2. 소취하 효력과 발생시기···································································· 434
3. 소취하 부존재와 무효의 차이 ··························································· 436
4. 소취하계약과 재소금지······································································ 438
5-1. 재소금지 요건 충족 여부 ······························································ 442
5-2. 재소금지의 당사자 동일 여부······················································· 444
5-3. 채권자대위소송에서 재소금지 ························································ 447
예시 모범답안 448
6. 당사자적격과 재소금지······································································ 451
7. 재소금지와 선결적 법률관계 ····························································· 454
8. 교환적 변경과 재소금지···································································· 456
제02절 인낙/포기과 화해 등 ·········································································· 459
1. 인낙조서의 효력················································································· 459
2. 재판상 화해와 실체법적 문제 ··························································· 462
3. 화해조서의 효력················································································· 471
제2장 종국판결에 의한 종료 ··································································· 473
제01절 판결과 그 효력 ··················································································· 473
1. 판결경정제도와 항고 ·········································································· 473
2. 판결서기재 간이화특례······································································ 476
3. 가집행선고판결의 효력······································································ 478
4. 소송판결(당사자적격)의 기판력 발생 여부 ······································· 480
5-1. 외국판결의 승인과 판결의 효력 ···················································· 482
5-2. 외국판결의 승인과 판결의 효력 ···················································· 484
제02절 기판력의 주관적 범위 ········································································· 489
1. 채권자대위소송에서 주관적 범위······················································ 489
2. 변론종결후 승계인과 그 판단 ··························································· 491
3. 변론종결후 승계인의 범위 ································································· 495
4. 변론종결뒤의 승계인과 객관적 범위 ················································· 498
5. 기판력과 승계집행문 ·········································································· 500
6. 등기와 변론종결후 승계인 ································································· 502
7. 집행적격승계인 ··················································································· 504
8. 집행적격승계인 ··················································································· 506
9. 승계인과 집행 여부 ············································································ 509
제03절 객관적 범위(제216조) ········································································· 513
1. 소송물과 기판력················································································· 513
2. 일부청구와 기판력 ·············································································· 516
3. 채권자취소소송의 소송물과 기판력 ··················································· 518
4. 객관적 범위와 모순관계···································································· 520
5. 공물분할청구소송의 기판력 ······························································· 523
6. 전소 확정판결에서 이유의 효력························································ 526
7-1. 확인의 소와 기판력········································································ 529
7-2. 변종후사유로서 확인의 소 여부 ···················································· 533
8. 예비적 병합과 기판력 ········································································ 535
제04절 기판력의 시적 범위 ············································································ 538
1. 표준시································································································· 538
2. 동시이행항변권의 상계와 기판력······················································ 540
3-1. 형성권의 실권여부········································································· 542
3-2. 상계의 실권 여부 ··········································································· 544
4. 재상계항변의 기판력 ········································································ 546
5-1. 시적 범위와 변종후 새로운 사유 여부 ········································· 548
5-2. 변종후 새로운 사유의 범위 ··························································· 553
5-3. 주채무의 시효완성의 보증채무 확정판결에 대한 차단효 여부 ··· 555
6. 건물매수청구권의 실권 여부 ····························································· 557
7. 상속협의분할의 실권효······································································ 559
8-1. 변경의 소 ························································································ 561
8-2. 정기금 변경의 소와 승계인 ··························································· 564
제3장 판결의 편취 ··················································································· 566
1. 공시송달에 의한 판결편취의 구제···················································· 566
2-1. 허위송달에 의한 편취판결 ····························································· 571
2-2. 편취판결의 구제 방법···································································· 575
3. 참칭대표자의 사위판결과 재심 ·························································· 577

[ PART 05 ] 상소와 재심 579

제1장 상소 ······························································································· 580
제01절 항소 ···································································································· 580
1. 항소의 적식요건과 항소장 각하명령 ················································· 580
2-1. 항소의 이익 ·················································································· 582
2-2. 소송물과 항소이익········································································· 584
3. 상소의 효력 ························································································ 586
4. 항소의 효력과 단순병합···································································· 591
5. 청구취지의 확장과 부대항소/항소이익············································· 593
6. 항소취하 합의의 효력 ········································································ 596
7. 일부 항소취하 가부 ············································································ 598
8. 부대항소와 항소취하 ·········································································· 600
9. 재항소와 파기환송 후 항소취하 가부··············································· 602
10. 불이익변경금지와 소변경································································· 604
제02절 상고 ···································································································· 608
1. 상고이유서 제출기간의 의미 ····························································· 608
2. 환송판결의 효력················································································· 611
3. 상고심의 심판범위 ·············································································· 615
4-1. 파기환송심의 기속력 ······································································ 617
4-2. 파기환송의 기속력의 객관적 범위 ················································ 619
4-3. 병합소송과 파기환송의 기속력 ······················································ 621
제2장 항고 ······························································································· 625
1. 항고절차와 종류················································································· 625
2. 재도의 고안 ························································································ 627
제3장 재심 ······························································································· 629
1. 대리권 흠결과 재심기간···································································· 629
2. 재심대상과 재심사유 ·········································································· 632
3. 재심법원과 재심의 성질···································································· 636
4. 재심의 소에서 공동소송적 보조참가인의 행위의 효력···················· 641

[ PART 06 ] 병합소송 645

제1장 병합청구소송(청구의 복수) ···························································· 646
제01절 원시적 병합 ························································································ 646
제1관 단순병합·························································································· 646
1. 장래이행의 소의 단순병합 ································································· 646
2. 대상청구소송의 판단과 판결 ····························································· 648
3. 대상청구와 부진정 예비적 병합························································ 651
4-1. 단순병합과 선택적·예비적 병합···················································· 654
4-2. 단순병합의 선택적·예비적 병합···················································· 658
4-3. 관련성있는 단순병합의 예비적 병합············································· 660
제2관 선택적 병합····················································································· 665
1. 선택적 병합의 형태 ············································································ 665
2. 선택적 병합의 심판방법···································································· 668
3. 선택적 병합에서 변론과 심리 ··························································· 672
4. 선택적 병합에서 부진정 예비적 병합··············································· 675
5. 선택적 병합과 항소심 심판······························································· 679
6. 선택적 병합의 상고심 판단······························································· 681
제3관 예비적 병합····················································································· 683
1. 예비적 병합에서 소송물 특정 ·························································· 683
2-1. 예비적 병합의 심판방법 ································································ 685
2-2. 예비적 병합의 판단누락과 심판 ···················································· 688
3. 예비적 병합의 상고심의 심판 ··························································· 693
4. 예비적 병합의 항소심 인용판결························································ 696
제02절 후발적 병합 ························································································ 698
1. 항소심에서 청구의 변경···································································· 698
2. 교환적 변경 ························································································ 701
3. 반소관할 ······························································································ 703
4. 반소와 본소의 적법 여부··································································· 705
5. 예비적 반소 ························································································ 707
6. 부적법한 반소의 처리 ········································································ 709
7. 제3자 반소 가부 ················································································· 711
8. 반소의 병합과 항소심 ······································································ 713
제2장 다수당사자소송(주관적 병합) ························································ 718
제01절 공동소송 ····························································································· 718
1. 통상공동소송의 심판 방법-독립의 원칙 ··········································· 718
2. 부진정연대채무에서 공동소송···························································· 721
3. 공동소송과 장래이행의 소에 관한 판례 ··········································· 723
4. 통상공동소송에서 소송비용 부담······················································ 726
5. 공유물에 대한 소송 ············································································ 728
6. 필수적 공동소송과 당사자적격 ·························································· 732
7-1. 필수적 공동소송과 불이익변경금지원칙 ····································· 734
7-2. 필수적 공동소송에서 일부판결과 항소········································· 736
8-1. 유사필수적 공동소송에서 일부 항소취하 가부···························· 738
8-2. 유사필수적 공동소송에서 소취하 가부········································· 741
9. 공동소송의 선택적 소송 여부와 심판··············································· 745
10. 예비적·선택적 공동소송인의 추가··················································· 748
11-1. 예비적 공동소송의 심판방법······················································· 752
11-2. 예비적 공동소송에서 합일확정의 원칙······································· 755
12. 복합적 소송형태··············································································· 759
13. 중첩적(복합적) 병합소송의 항소심 심판········································· 762
14. 예비적 공동소송의 심판과 일부 소취하········································· 766
제02절 소송참가 ····························································································· 771
1. 단순보조참가······················································································· 771
2. 참가적 효력과 판결의 증명효 이론·················································· 773
3. 보조참가의 효력················································································· 775
4. 보조참가와 통상의 공동소송 비교···················································· 779
5. 보조참가인의 항소효력······································································ 782
6. 채권자대위소송에서 소송참가···························································· 784
7. 회사참가소송······················································································· 787
8-1. 독립당사자참가에서 권리주장참가 ················································ 791
8-2. 독립당사자참가에서 화해권고와 항소의 효력······························ 795
9-1. 채권자대위소송에서 채무자의 독립당사사참가소송 ····················· 799
9-2. 채권자대위소송에서 다른 채권자의 독립당사사참가소송 ············ 802
10. 채권자취소소송과 독립당사자참가 ·················································· 804
제03절 당사자변경과 승계 ·············································································· 807
1. 당사자적격과 당사자변경 ··································································· 807
2. 공유물분할 소송에서 당사자변경 가부 ············································· 810
3-1. 피고경정제도 ··················································································· 813
3-2. 피고경정과 표시정정 ······································································ 815
3-3. 피고경정 시기 ················································································· 818
4. 소송승계 가부 ····················································································· 821
5. 소송승계와 소송탈퇴 ·········································································· 824
6. 소송승계와 중복제소 및 재소금지···················································· 829
7. 소송승계의 소멸시효 중단 효력 등·················································· 832

저자 정보

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    • 학력 충남대학교 사법학과 졸업
      충남대학교 대학원 민사법 석사 학위 취득
      충남대학교 대학원 민사법 박사 학위 취득
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