최영덕 탁마민사소송법(제3판)

[ PART 1 ] 총론 1

제1장 민사소송법의 체계 ·············································································· 2
제01절 민사소송법 법적 체계 ··········································································· 2
Ⅰ. 민사소송법의 성격················································································ 2
Ⅱ. 민사소송법의 특질 ·············································································· 2
Ⅲ. 민사소송법의 규정················································································ 3
제02절 권리구제절차와 민사소송법 ··································································· 5
Ⅰ. 실체법과 절차법의 관계······································································· 5
Ⅱ. 민사소송절차와 다른 소송절차의 비교················································ 5
Ⅲ. 민사소송과 다른 민사절차의 구분 ······················································ 8
제03절 민사소송절차 개요 ·············································································· 14
Ⅰ. 절차의 개요························································································ 14
Ⅱ. 현대 정보통신매체와 전자민사소송절차 ··········································· 14
제2장 민사소송의 목적과 이상 ··································································· 15
제01절 민사소송의 목표 ·················································································· 15
Ⅰ. 민사소송의 목적 ··············································································· 15
Ⅱ. 민사소송의 이상 ··············································································· 15
제02절 신의성실의 원칙 ·················································································· 17
Ⅰ. 개요···································································································· 17
Ⅱ. 신의성실의 원칙의 성질····································································· 17
Ⅲ. 위반의 유형························································································ 18
Ⅳ. 위반의 효과························································································ 21

[ PART 2 ] 소송의 주체와 객체 23

제1장 법원 ··································································································· 24
제01절 민사재판관할 ······················································································· 24
Ⅰ. 민사재판권·························································································· 24
Ⅱ. 민사법원의 구성················································································· 26
/ 국제재판관할권 / 27
Ⅰ. 개설 27
Ⅱ. 국제재판관할권 결정의 기준 28
Ⅲ. 국제재판관할합의 30
Ⅳ. 국제적 중복제소금지(국제적 소송경합)32
Ⅴ. 민사재판권 또는 국제재판관할이 없는 경우 법원의 조치 33
제02절 공정한 재판을 위한 제도 ···································································· 34
Ⅰ. 법관의 공정한 재판의 의무································································ 34
Ⅱ. 법관의 제척························································································ 34
Ⅲ. 법관의 기피························································································ 36
Ⅳ. 제척⋅기피 신청의 효과(본안절차의 정지) ········································ 38
Ⅴ. 법관의 회피························································································ 40
Ⅵ. 법원사무관 등에 대한 배제································································ 40
제03절 법원의 관할 ························································································ 41
Ⅰ. 개관···································································································· 41
Ⅱ. 관할의 종류························································································ 42
/ 사물관할 / 45
/ 토지관할 / 49
/ 합의관할 / 54
Ⅰ. 개설 54
Ⅱ. 소송계약으로서 관할합의 효력 55
Ⅲ. 합의의 요건(제29조 제1항, 제2항) 55
Ⅳ. 관할합의의 모습 56
Ⅴ. 관할합의의 효과 57
/ 변론관할 / 59
Ⅰ. 개요 59
Ⅱ. 변론관할의 요건(제30조) 59
Ⅲ. 변론관할 성립효과 60
제04절 관할조사와 이송 ·················································································· 62
Ⅰ. 소송요건으로서 관할·········································································· 62
Ⅱ. 소송이송과 효력················································································· 64
제2장 당사자와 소송대리인 ········································································· 72
제01절 개설 ···································································································· 72
Ⅰ. 당사자의 의의····················································································· 72
Ⅱ. 당사자대립주의··················································································· 72
Ⅲ. 당사자권-절차적 기본권····································································· 74
제02절 당사자의 확정 ····················································································· 76
Ⅰ. 당사자확정·························································································· 76
Ⅱ. 사망한 당사자로 한 소송··································································· 79
Ⅲ. 성명모용소송······················································································· 82
Ⅳ. 법인격 부인론····················································································· 83
제02절 당사자자격 ·························································································· 88
제1관 당사자능력······················································································· 88
Ⅰ. 당사자능력(실체법상 권리능력) ·························································· 88
Ⅱ. 조합의 당사자능력과 소송수행··························································· 91
Ⅲ. 당사자능력의 조사와 흠결의 효과····················································· 93
제2관 당사자능력······················································································· 96
Ⅰ. 개요···································································································· 96
Ⅱ. 일반적 당사자적격·············································································· 96
Ⅲ. 제3자 소송담당-법정소송담당···························································· 98
Ⅳ. 임의적 소송담당(소송신탁) ······························································· 100
Ⅴ. 법원허가에 의한 소송담당(재정소송담당) ········································ 101
Ⅵ. 당사자적격 흠결의 효과··································································· 101
/ 채권자대위소송 / 103
Ⅰ. 서설 103
Ⅱ. 피보전채권(당사자적격) 흠결시 법원의 조치 104
Ⅲ. 채권자대위소송과 중복제소 105
Ⅳ. 채권자대위소송과 기판력의 주관적 범위 107
Ⅴ. 채권자대위소송과 재소금지 108
Ⅵ. 수인의 채권자의 공동소송의 형태 109
Ⅶ. 참가의 형태와 가부 109
Ⅷ. 압류와 추심채권자의 대위소송 111
제3관 소송능력························································································· 114
Ⅰ. 서설·································································································· 114
Ⅱ. 소송능력자························································································ 114
Ⅲ. 제한능력자의 소송행위의 효력························································ 114
Ⅳ. 소송능력을 간과한 판결의 효력······················································· 116
제4관 변론능력························································································· 117
Ⅰ. 개요·································································································· 117
Ⅱ. 변론무능력자···················································································· 117
Ⅲ. 변론능력 보충의 진술보조인제도····················································· 118
Ⅳ. 변론능력 흠결의 효과······································································ 118
제04절 소송상 대리인 ··················································································· 121
제1관 서설································································································ 121
Ⅰ. 대리인의 의의··················································································· 121
Ⅱ. 소송상 대리인의 종류······································································ 121
제2관 법정대리인····················································································· 122
Ⅰ. 종류·································································································· 122
Ⅱ. 법정대리인의 권한과 지위······························································· 125
Ⅲ. 법정대리인 지위··············································································· 127
Ⅳ. 대리권의 소멸··················································································· 127
제3관 임의대리인(소송대리인) ································································· 128
Ⅰ. 종류·································································································· 128
Ⅱ. 권한·································································································· 130
Ⅲ. 지위·································································································· 132
Ⅳ. 대리권의 소멸··················································································· 133
제4관 무권대리인····················································································· 134
Ⅰ. 의의·································································································· 134
Ⅱ. 대리권의 소송법상 지위··································································· 135
Ⅲ. 쌍방대리의 금지··············································································· 137
Ⅳ. 비변호사의 대리행위에 대한 취급··················································· 138
제3장 소송객체와 소의 이익 ····································································· 140
제01절 소송의 객체 ······················································································ 140
Ⅰ. 소송물의 개요··················································································· 140
Ⅱ. 소의 유형·························································································· 143
/ 일부청구 / 146
Ⅰ. 개요 146
Ⅱ. 일부청구의 소송물 146
Ⅲ. 일부청구와 기판력 147
Ⅳ. 일부청구와 시효중단 147
Ⅴ. 잔부청구의 중복소제기에 해당 여부 149
Ⅵ. 일부청구의 과실상계 및 상계 150
Ⅶ. 일부청구의 전부승소와 상소의 이익 152
Ⅷ. 일부청구와 잔부청구이론의 적용문제 153
제02절 소의 이익 ························································································· 155
Ⅰ. 소권이론··························································································· 155
Ⅱ. 소의 이익·························································································· 155
Ⅲ. 권리보호자격(공통적인 소의 이익) ··················································· 156
Ⅳ. 각종의 소에 특수한 소의 이익························································ 157
Ⅴ. 소송상의 취급··················································································· 160
/ 장래이행의 소 / 161
Ⅰ. 개요 161
Ⅱ. 권리보호자격의 객관적 범위=청구적격=대상적격 161
Ⅲ. 미리 청구할 필요(권리보호이익) 164
Ⅳ. 장래이행의 소의 심판과 집행 166
/ 확인의 소 / 168
Ⅰ. 서설 168
Ⅱ. 청구적격-현재 자기의 권리관계 168
Ⅲ. 증서진부확인의 소(제250조) 169
Ⅳ. 확인의 이익-즉시 확정의 법률상 이익 171
Ⅴ. 당사자적격과의 관계 173
Ⅵ. 소송상 취급 174

[ PART 3 ] 제1심 소송절차 175

제1장 소개시와 효과 ················································································· 176
제01절 소의 제기 ························································································· 176
Ⅰ. 소제기 방식······················································································ 176
Ⅱ. 소장의 기재사항··············································································· 177
제02절 재판장의 소장심사 ············································································ 181
Ⅰ. 개요·································································································· 181
Ⅱ. 소장심사··························································································· 182
Ⅲ. 보정명령의 효력··············································································· 182
제03절 소송요건과 조사 ················································································ 185
Ⅰ. 개설·································································································· 185
Ⅱ. 소송요건의 종류··············································································· 185
Ⅲ. 소송요건의 형태··············································································· 186
Ⅳ. 소송요건의 조사··············································································· 186
Ⅴ. 법원의 조치······················································································ 188
/ 직권조사사항 / 189
제04절 소제기 효과 ······················································································ 191
Ⅰ. 개요·································································································· 191
Ⅱ. 소송법상 효과··················································································· 191
Ⅲ. 실체법상의 효과··············································································· 191
/ 중복제소금지(제259조) / 195
Ⅰ. 개요 195
Ⅱ. 요건 195
Ⅲ. 효과 200
/ 시효의 중단 / 201
제05절 소송구조 ··························································································· 206
Ⅰ. 의의와 취지······················································································ 206
Ⅱ. 구조의 요건······················································································ 206
Ⅲ. 구조의 절차······················································································ 207
Ⅳ. 구조의 효과······················································································ 208
제2장 변론과 심리 ···················································································· 209
제01절 변론절차 ··························································································· 209
Ⅰ. 개요·································································································· 209
Ⅱ. 소장부본송달 및 답변서제출의무····················································· 211
Ⅲ. 답변서제출의무와 무변론판결·························································· 212
Ⅳ. 변론준비절차와 변론기일································································· 214
Ⅴ. 준비서면의 제출과 효과··································································· 216
Ⅵ. 관련문제-소취하 간주······································································ 220
제02절 심리의 원칙 ······················································································ 223
제1관 심리의 기본원칙············································································ 222
Ⅰ. 공개심리주의···················································································· 222
Ⅱ. 쌍방심문주의···················································································· 222
Ⅲ. 구술심리주의···················································································· 222
Ⅳ. 직접심리주의···················································································· 222
Ⅴ. 집중심리주의···················································································· 223
제2관 처분권주의····················································································· 223
Ⅰ. 개요·································································································· 223
Ⅱ. 절차의 개시······················································································ 223
Ⅲ. 심판대상과 범위··············································································· 224
Ⅳ. 절차의 종결······················································································ 228
Ⅴ. 처분권주의 위배의 효과··································································· 229
제3관 변론주의························································································· 229
Ⅰ. 개요·································································································· 229
Ⅱ. 변론주의의 내용··············································································· 230
Ⅲ. 변론주의의 한계··············································································· 231
Ⅳ. 변론주의의 보완과 수정··································································· 231
/ 소송자료와 증거자료의 준별 / 233
/ 주요사실과 간접사실의 구별 / 236
Ⅰ. 개요 236
Ⅱ. 구별의 기준 236
Ⅲ. 구별의 효과 237
Ⅳ. 개별적 검토 239
제4관 적시제출주의················································································· 242
Ⅰ. 개요·································································································· 242
Ⅱ. 구체적 내용······················································································ 242
Ⅲ. 실효성을 위한 제도·········································································· 242
Ⅳ. 기타 실효성 확보방안······································································ 246
제5관 법원의 소송지휘권········································································ 247
Ⅰ. 개요·································································································· 247
Ⅱ. 소송지휘권························································································ 247
Ⅲ. 석명권······························································································· 248
Ⅳ. 당사자의 이의권··············································································· 254
제03절 변론 ·································································································· 257
제1관 소송행위························································································· 257
Ⅰ. 개요·································································································· 257
Ⅱ. 소송행위··························································································· 257
Ⅲ. 소송행위의 하자 및 취소⋅철회······················································ 261
Ⅳ. 소송상 형성권의 행사······································································ 263
제2관 부인과 항변··················································································· 266
Ⅰ. 개요·································································································· 266
Ⅱ. 부인·································································································· 266
Ⅲ. 항변·································································································· 267
Ⅳ. 부인과 항변의 구별·········································································· 268
Ⅴ. 상계항변의 특수성············································································ 269
제3관 기일⋅기간 및 송달······································································ 271
Ⅰ. 기일·································································································· 271
Ⅱ. 기간·································································································· 272
Ⅲ. 소송행위의 추후보완········································································ 274
제4관 송달································································································ 279
Ⅰ. 개요·································································································· 279
Ⅱ. 송달기관··························································································· 280
Ⅲ. 송달받을 사람··················································································· 281
Ⅳ. 송달실시의 방법··············································································· 283
제04절 소송절차의 정지 ················································································ 293
Ⅰ. 개요·································································································· 293
Ⅱ. 소송절차의 중단과 수계··································································· 293
Ⅲ. 중단의 예외(제238조) ······································································ 295
Ⅳ. 중단의 해소······················································································ 297
Ⅴ. 중단의 효력(제247조) ······································································ 299
제3장 증거법 ····························································································· 301
제01절 증거와 증명 ······················································································ 301
Ⅰ. 증거의 필요성··················································································· 301
Ⅱ. 증거의 의의······················································································ 301
Ⅲ. 증거능력과 증거력············································································ 301
Ⅳ. 증거의 종류······················································································ 302
Ⅴ. 증명과 소명······················································································ 303
제02절 증거사실 ··························································································· 305
제1관 요증사실························································································· 305
Ⅰ. 사실의 범위······················································································ 305
Ⅱ. 경험법칙의 포함 여부······································································ 305
Ⅲ. 법규·································································································· 307
제2관 불요증사실····················································································· 308
Ⅰ. 의의·································································································· 308
Ⅱ. 재판상의 자백··················································································· 308
Ⅲ. 현저한 사실······················································································ 313
제03절 증거조사의 개시와 실시 ···································································· 319
제1관 증거조사의 개시 ·········································································· 319
Ⅰ. 증거신청··························································································· 319
Ⅱ. 증거의 채부결정··············································································· 320
Ⅲ. 직권증거조사···················································································· 323
제2관 증거조사 ······················································································· 323
Ⅰ. 개요·································································································· 323
Ⅱ. 증인신문··························································································· 325
Ⅲ. 감정·································································································· 331
Ⅳ. 서증·································································································· 334
/ 문서의 증거능력과 증거력 / 343
Ⅰ. 문서의 증거능력 343
Ⅱ. 문서의 형식적 증거력 (문서의 진정성립) 343
Ⅲ. 문서의 실질적 증거력 346
Ⅳ. 검증 349
Ⅴ. 당사자신문 350
Ⅵ. 그 이외의 증거 352
Ⅶ. 특별한 증거조사 353
제04절 자유심증주의 ····················································································· 355
Ⅰ. 개설·································································································· 355
Ⅱ. 증거원인··························································································· 355
Ⅲ. 자유심증의 정도-심증도··································································· 358
Ⅳ. 자유심증주의 예외············································································ 359
제05절 증명책임 ··························································································· 362
Ⅰ. 개요·································································································· 362
Ⅱ. 증명책임의 분배··············································································· 362
Ⅲ. 증명책임의 완화 내지 전환······························································ 363
Ⅳ. 일응의 추정과 간접반증··································································· 367
Ⅴ. 주장책임과 증명책임의 관계···························································· 370

[ PART 4 ] 소송의 종료 372

제1장 당사자에 의한 종료 ········································································ 373
제01절 서설 ·································································································· 373
Ⅰ. 소송종료사유···················································································· 373
Ⅱ. 소송종료선언···················································································· 374
제02절 청구의 포기⋅인낙 ············································································ 377
Ⅰ. 서설·································································································· 377
Ⅱ. 요건·································································································· 377
Ⅲ. 확정판결과 동일한 효과··································································· 379
제03절 소의 취하 ························································································· 381
Ⅰ. 개요·································································································· 381
Ⅱ. 요건·································································································· 382
Ⅲ. 효과·································································································· 385
Ⅳ. 관련 문제-각각의 서술참조······························································ 386
/ 재소금지 / 388
Ⅰ. 개요 388
Ⅱ. 요건 389
Ⅲ. 효과 392
제04절 재판상 화해 ······················································································ 393
Ⅰ. 개요·································································································· 393
Ⅱ. 법적 성질·························································································· 393
Ⅲ. 요건·································································································· 394
Ⅳ. 효과·································································································· 396
Ⅴ. 다투는 방법······················································································ 397
Ⅵ. 화해권고결정···················································································· 400
Ⅶ. 제소전 화해 ···················································································· 401
Ⅷ. 화해간주-조정 등············································································· 403
제2장 법원에 의한 종료 ············································································ 404
제01절 재판의 종류와 종료 ·········································································· 404
제1관 서설 ······························································································ 404
Ⅰ. 재판의 의의······················································································ 404
Ⅱ. 재판의 종류······················································································ 404
제2관 판결의 종류 ················································································· 405
Ⅰ. 중간판결··························································································· 406
Ⅱ. 종국판결··························································································· 407
제3관 판결의 성립과 판결서 ································································· 411
Ⅰ. 판결내용의 확정··············································································· 411
Ⅱ. 판결서······························································································· 411
Ⅲ. 판결의 선고······················································································ 413
Ⅳ. 판결의 송달······················································································ 414
제4관 판결의 효력 ················································································· 414
Ⅰ. 기속력······························································································· 414
Ⅱ. 형식적 확정력··················································································· 418
Ⅲ. 실질적 확정력-기판력······································································ 421
제5관 기타 판결의 효력 및 부수적 효력 ············································· 421
Ⅰ. 집행력······························································································· 421
Ⅱ. 형성력······························································································· 421
Ⅲ. 법률요건적 효력··············································································· 422
Ⅳ. 반사적 효력······················································································ 422
Ⅴ. 가집행선고부 판결의 효력······························································· 424
제02절 기판력(旣判力) ·················································································· 428
제1관 기판력 일반 ················································································· 428
Ⅰ. 개요·································································································· 428
Ⅱ. 기판력의 본질··················································································· 432
Ⅲ. 기판력의 발생과 작용······································································ 434
Ⅳ. 법원의 조치······················································································ 435
제2관 주관적 범위 ················································································· 438
Ⅰ. 기판력의 상대성의 원칙··································································· 438
Ⅱ. 당사자의 적격승계인 제3자····························································· 438
Ⅲ. 기판력의 제3자에 확장···································································· 444
제3관 객관적 범위 ················································································· 444
Ⅰ. 의의·································································································· 444
Ⅱ. 판결주문에 관한 판단······································································ 444
Ⅲ. 판결이유 중의 판단·········································································· 449
Ⅳ. 상계의 항변······················································································ 451
제4관 시적 범위 ····················································································· 452
Ⅰ. 개요·································································································· 452
Ⅱ. 실권효(차단효) ·················································································· 452
Ⅲ. 변론종결 후의 새로운 사유······························································ 453
Ⅳ. 정기금판결에 대한 변경의 소·························································· 454
Ⅴ. 변론종결 후의 형성권 행사······························································ 459
제03절 편취판결과 구제 ················································································ 461
Ⅰ. 개요·································································································· 461
Ⅱ. 소송법상의 구제책(집행전) ······························································· 462
Ⅲ. 편취판결의 실체법상의 구제책(집행후) ············································ 463
Ⅳ. 부당집행에 대한 구제책··································································· 464

[ PART 5 ] 상소와 재심 466

제1장 상소 ································································································· 467
제01절 상소 일반 ························································································· 467
Ⅰ. 상소의 개요······················································································ 467
Ⅱ. 상소의 종류······················································································ 467
Ⅲ. 상소요건··························································································· 468
Ⅳ. 불상소 합의······················································································ 474
Ⅴ. 상소의 효력-상소불가분의 원칙······················································· 476
Ⅵ. 심판의 범위-불이익변경금지의 원칙················································ 478
Ⅶ. 상소의 제한······················································································ 485
제02절 항소 ·································································································· 486
제1관 총설 ······························································································ 486
Ⅰ. 항소의 의의······················································································ 486
Ⅱ. 항소심의 구조··················································································· 486
Ⅲ. 항소의 적법요건··············································································· 486
Ⅳ. 항소의 당사자··················································································· 487
제2관 항소의 제기 ················································································· 487
Ⅰ. 항소제기의 방식··············································································· 487
Ⅱ. 재판장의 항소장심사권····································································· 488
Ⅲ. 항소제기의 효력··············································································· 489
Ⅳ. 항소의 취하······················································································ 489
Ⅴ. 항소취하의 효과··············································································· 491
Ⅵ. 항소취하의 간주··············································································· 492
Ⅶ. 부대항소··························································································· 492
제3관 항소의 심리와 재판 ····································································· 495
Ⅰ. 항소장각하명령················································································· 495
Ⅱ. 항소각하··························································································· 495
Ⅲ. 항소기각··························································································· 496
Ⅳ. 항소인용··························································································· 496
제03절 상고 ·································································································· 498
제1관 개요 ······························································································ 498
Ⅰ. 상고의 개념······················································································ 498
Ⅱ. 상고의 대상······················································································ 498
Ⅲ. 법률심으로서의 상고심····································································· 498
제2관 상고이유 ······················································································· 499
Ⅰ. 개요·································································································· 499
제3관 상고심의 절차 ·············································································· 500
Ⅰ. 상고의 제기······················································································ 500
Ⅱ. 심리불속행제도-심리속행사유의 심사·············································· 501
Ⅲ. 상고심의 본안심리············································································ 501
Ⅳ. 상고심의 종료··················································································· 503
Ⅴ. 파기환송심의 기속력········································································ 505
제2장 항고 ································································································· 509
Ⅰ. 항고의 의의······················································································ 509
Ⅱ. 항고의 종류······················································································ 509
Ⅲ. 항고의 적용범위··············································································· 510
Ⅳ. 항고절차··························································································· 511
Ⅴ. 재항고······························································································· 513
Ⅵ. 특별항고··························································································· 513
제3장 재심의 소 ························································································ 515
Ⅰ. 서설·································································································· 515
Ⅱ. 재심소송의 소송물············································································ 515
Ⅲ. 적법요건··························································································· 516
Ⅳ. 재심사유··························································································· 519
Ⅴ. 재심절차··························································································· 523
Ⅵ. 준재심······························································································· 527

[ PART 6 ] 병합소송 528

제1장 객관적 병합(청구의 복수) ······························································· 529
제01절 총설 ·································································································· 530
Ⅰ. 개요·································································································· 530
Ⅱ. 병합의 태양과 요건·········································································· 531
Ⅲ. 절차와 심판······················································································ 531
제02절 원시적 객관적 병합 ·········································································· 534
제1관 단순병합 ······················································································· 534
Ⅰ. 개요·································································································· 534
Ⅱ. 절차와 심판······················································································ 534
Ⅲ. 관련 문제-청구의 관련성과 병합청구 가부····································· 535
제2관 선택적 병합 ················································································· 541
Ⅰ. 개요·································································································· 541
Ⅱ. 절차와 심판······················································································ 542
제3관 예비적 병합 ················································································· 546
Ⅰ. 개요·································································································· 546
Ⅱ. 요건·································································································· 546
Ⅲ. 절차와 심판······················································································ 547
제03절 후발적 청구의 병합 ·········································································· 550
제1관 청구의 변경 ················································································· 550
Ⅰ. 개설·································································································· 550
Ⅱ. 소변경의 범위··················································································· 550
Ⅲ. 종류·································································································· 552
Ⅳ. 요건·································································································· 555
Ⅴ. 절차·································································································· 557
Ⅵ. 심판·································································································· 557
제2관 중간확인의 소 ·············································································· 560
Ⅰ. 개요·································································································· 560
Ⅱ. 요건·································································································· 560
Ⅲ. 절차와 심판······················································································ 561
제3관 반소 ······························································································ 562
Ⅰ. 서설·································································································· 563
Ⅱ. 법적 성질·························································································· 563
Ⅲ. 반소의 형태······················································································ 565
Ⅳ. 반소의 요건······················································································ 566
Ⅴ. 절차와 심판······················································································ 568
Ⅵ. 반소의 특수한 형태·········································································· 570
제2장 다수당사자소송(주관적 병합) ·························································· 573
제01절 공동소송 ··························································································· 574
제1관 총설 ······························································································ 574
Ⅰ. 개요·································································································· 574
Ⅱ. 발생원인과 소멸원인········································································ 574
Ⅲ. 공동소송의 일반요건········································································ 574
Ⅳ. 연대채무관계에서 공동소송관계의 특수문제···································· 576
제2관 통상의 공동소송 ·········································································· 577
Ⅰ. 개요·································································································· 577
Ⅱ. 공동소송인 독립의 원칙··································································· 577
Ⅲ. 공동소송인 독립의 원칙의 수정······················································· 578
제3관 필수적 공동소송 ·········································································· 580
Ⅰ. 개요·································································································· 580
Ⅱ. 고유필수적 공동소송········································································ 580
Ⅲ. 유사필수적 공동소송········································································ 583
Ⅳ. 필수적 공동소송의 심판방법···························································· 585
제4관 예비적⋅선택적 공동소송 ···························································· 588
Ⅰ. 개요·································································································· 588
Ⅱ. 예비적 공동소송의 요건··································································· 588
Ⅲ. 예비적⋅선택적 공동소송의 심판방법·············································· 590
Ⅳ. 예비적⋅선택적 공동소송의 형태····················································· 592
Ⅴ. 복합소송형태-중첩적 소송형태-교차적 병합··································· 593
Ⅵ. 관련 중요판례··················································································· 595
제5관 추가적 공동소송(후발적 주관적 병합) ········································ 598
Ⅰ. 개요·································································································· 598
Ⅱ. 명문의 규정이 있는 경우································································· 598
Ⅲ. 명문의 규정이 없는 경우································································· 599
제6관 선정당사자 ··················································································· 600
Ⅰ. 서설·································································································· 600
Ⅱ. 요건(제53조) ····················································································· 600
Ⅲ. 선정의 방법······················································································ 601
Ⅳ. 선정의 효과······················································································ 602
Ⅴ. 선정당사자 자격 흠결의 효과·························································· 605
제7관 집단소송제도 ················································································ 607
제02절 소송참가 ··························································································· 607
제1관 보조참가 ······················································································· 607
Ⅰ. 서설·································································································· 607
Ⅱ. 요건(제71조) ····················································································· 608
Ⅲ. 참가의 절차······················································································ 609
Ⅳ. 참가인의 소송상 지위······································································ 611
Ⅴ. 참가적 효력······················································································ 613
제2관 소송고지 ······················································································· 616
Ⅰ. 의의·································································································· 616
Ⅱ. 소송고지의 요건··············································································· 616
Ⅲ. 소송고지의 방식··············································································· 617
Ⅳ. 소송고지의 효력··············································································· 617
제3관 공동소송적 보조참가 ··································································· 619
Ⅰ. 서설·································································································· 619
Ⅱ. 참가의 요건······················································································ 620
Ⅲ. 참가인의 소송상 지위와 효과-제67조 준용(유사필수적 공동소송) ··· 620
Ⅳ. 공동소송참가와의 비교····································································· 622
제4관 공동소송참가 ················································································ 624
Ⅰ. 개요·································································································· 624
Ⅱ. 참가의 요건······················································································ 624
Ⅲ. 참가절차와 효과··············································································· 626
제5관 독립당사자참가 ············································································ 627
Ⅰ. 개요·································································································· 627
Ⅱ. 구조·································································································· 627
Ⅲ. 참가요건··························································································· 628
Ⅳ. 참가절차··························································································· 633
Ⅴ. 참가소송의 심판··············································································· 634
Ⅵ. 독립당사자참가소송의 붕괴원인과 그 효과 ··································· 637
제03절 소송승계 ··························································································· 641
제1관 당사자변경····················································································· 641
Ⅰ. 개요·································································································· 641
Ⅱ. 허용 여부·························································································· 641
Ⅲ. 법률상의 당사자의 변경··································································· 641
제2관 당연승계와 특정승계····································································· 644
Ⅰ. 개요·································································································· 644
Ⅱ. 당연승계··························································································· 645
Ⅲ. 특정승계··························································································· 647
제3관 참가승계와 인수승계····································································· 647
참가승계-승계참가·················································································· 647
인수승계-인수참가·················································································· 650
전주의 지위와 소송탈퇴 ········································································· 652

[ PART 7 ] 간이한 소송절차 654

제01절 지급명령 ··························································································· 655
Ⅰ. 의의 및 취지···················································································· 655
Ⅱ. 지급명령의 신청··············································································· 655
Ⅲ. 지급명령신청에 대한 재판······························································· 656
Ⅳ. 채무자의 이의신청············································································ 657
제02절 소액사건심판절차 ·············································································· 660
Ⅰ. 소액사건과 소액사건심판법······························································ 660
Ⅱ. 이행권고결정···················································································· 660
Ⅲ. 절차상의 특례··················································································· 661
Ⅳ. 심리절차상의 특칙············································································ 662
Ⅴ. 판결에 관한 특례············································································· 664