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상법강의 / 제21판

상법강의 / 제21판 (Loan 16 times)

Material type
단행본
Personal Author
정찬형
Title Statement
상법강의 / 정찬형 저
판사항
제21판
Publication, Distribution, etc
서울 :   박영사,   2018-2019  
Physical Medium
2책(xcvii, 1418 ; lxxviii, 1234 p.) ; 26 cm
ISBN
9791130331874 (상) 9791130333823 (하) 9791130331867 (세트) 9791130333809 (세트)
Bibliography, Etc. Note
참고문헌과 색인수록
000 00000cam c2200205 c 4500
001 000045951440
005 20190515134554
007 ta
008 180823m20182019ulk b 001c kor
020 ▼a 9791130331874 (상) ▼g 94360
020 ▼a 9791130333823 (하) ▼g 94360
020 1 ▼a 9791130331867 (세트)
020 1 ▼a 9791130333809 (세트)
035 ▼a (KERIS)BIB000014769952
040 ▼a 211017 ▼c 211017 ▼d 211017 ▼d 211009
082 0 4 ▼a 346.51907 ▼2 23
085 ▼a 346.5307 ▼2 DDCK
090 ▼a 346.5307 ▼b 2018z3
100 1 ▼a 정찬형 ▼0 AUTH(211009)94032
245 1 0 ▼a 상법강의 / ▼d 정찬형 저
246 1 1 ▼a Lecture on commercial law
250 ▼a 제21판
260 ▼a 서울 : ▼b 박영사, ▼c 2018-2019
300 ▼a 2책(xcvii, 1418 ; lxxviii, 1234 p.) ; ▼c 26 cm
504 ▼a 참고문헌과 색인수록
900 1 0 ▼a Chung, Chan-hyung, ▼e
945 ▼a KLPA

Holdings Information

No. Location Call Number Accession No. Availability Due Date Make a Reservation Service
No. 1 Location Main Library/Law Library(Books/B1)/ Call Number 346.5307 2018z3 1 Accession No. 111795854 Availability Available Due Date Make a Reservation Service B M
No. 2 Location Main Library/Law Library(Books/B1)/ Call Number 346.5307 2018z3 2 Accession No. 111809573 Availability In loan Due Date 2021-07-12 Make a Reservation Available for Reserve R Service M

Contents information

Book Introduction

제20판 출간(2017년 3월 5일) 이후에 전부개정된 주식회사 등의 외부감사에 관한 법률(2017. 10. 31, 법 15022호, 시행: 2018. 11. 1.)을 반영하고, 또한 제20판 이후에 새로 나온 대법원 판례(판례공보를 기준으로 2017년 1월 1일부터 2017년 12월 15일까지 공표된 판례)를 반영하였으며, 또한 내용에서 미흡한 부분을 수정.보완하여, 이번에 제21판을 출간하였다.

제21판 서 문

제20판 출간(2017년 3월 5일) 이후에 전부개정된 주식회사 등의 외부감사에 관한 법률(2017. 10. 31, 법 15022호, 시행: 2018. 11. 1.)을 반영하고, 또한 제20판 이후에 새로 나온 대법원 판례(판례공보를 기준으로 2017년 1월 1일부터 2017년 12월 15일까지 공표된 판례)를 반영하였으며, 또한 내용에서 미흡한 부분을 수정.보완하여, 이번에 제21판을 출간하였다. 이번에 반영한 대법원 2017. 3. 23. 선고 2015 다 248342 전원합의체 판결은 주주명부상 기재 또는 명의개서의 효력에 대하여 종래의 판례인 실질설을 변경하여 형식설에 따른 것이고, 또한 대법원 2017. 3. 23. 선고 2016 다 251215 전원합의체 판결은 이사.감사의 지위의 취득에 임용계약 체결을 요한다는 종래의 판례를 변경하여 임용계약의 체결 여부와 관계 없이 주주총회의 선임 결의가 있고 선임된 사람의 동의만 있으면 된다고 보는 것으로서 중요한 의미를 갖는다고 본다.
이와 같은 수정과 보완으로 이 책의 내용이 매우 up-to-date하고 훨씬 충실하여졌다고 본다. 앞으로도 많은 애독자들의 변함 없는 사랑과 성원을 바라며, 미흡한 부분과 새로운 내용은 계속 수정하고 보완할 것을 다짐한다.
제21판의 출간을 위하여 도와주신 박영사 안종만 회장님, 조성호 이사 및 편집부 이승현 대리에게 깊은 감사를 드린다.

2018년 2월
정 찬 형 씀


Information Provided By: : Aladin

Author Introduction

정찬형(지은이)

저자약력 서울대학교 법과대학(법학과) 졸업 서울대학교 대학원(법학석사) 법학박사(서울대학교) 미국 워싱턴대학교 Law School 및 듀크대학교 Law School에서 상법연구(Visiting Scholar) 독일 뮌스터대학교 법과대학에서 상법연구(Gastprofessor) 충북대학교 법학과 전임강사 및 국립경찰대학 법학과 조교수․부교수 사법시험위원․공인회계사시험위원, 대한상사중재원 중재인 법무부 법무자문위원회 위원 고려대학교 법과대학 및 법학전문대학원 교수(상법 및 금융법 담당) 현 고려대학교 법학전문대학원 명예교수 저  서 어음․수표선의취득연구(박영사) 사례연구 어음․수표법(법문사) 어음법․수표법(공저)(서울대출판부) EC 회사법(박영사) 주석어음․수표법(Ⅰ)(Ⅱ)(Ⅲ)(공저)(한국사법행정학회) 주석 상법(제5판)(회사 Ⅲ)(회사 Ⅴ)(회사 Ⅵ)(공저)(한국사법행정학회) 회사법강의(제4판)(박영사) 어음․수표법강의(제7판)(박영사) 상법판례평석(홍문사) 상법개론(제18판)(법영사) 객관식 상법(제5판)(법영사) 판례상법(상)․(하)(제2판)(박영사) 상법강의(상)(제24판)(박영사) 상법강의(하)(제22판)(박영사) 상법사례연습(제4판)(박영사) 영미어음․수표법(고려대출판부) 은행법강의(제3판)(공저)(박영사) 주석 금융법 Ⅰ(은행법)․Ⅱ(보험업법)․Ⅲ(자본시장법)(공저)(한국사법행정학회) 백산상사법논집Ⅰ․Ⅱ(박영사) 로스쿨 금융법(공저)(박영사) 금융법강의(공저)(박영사) 로스쿨 회사법(제2판)(박영사) 로스쿨 어음․수표법(박영사) 로스쿨 상법총칙․상행위법(공저)(박영사)

Information Provided By: : Aladin

Table of Contents

[상]
주요목차 
상법강의(상) 
제 1 편 총 칙 
제 1 장 서 론 ? 3 
제 1 절 상법의 개념···································································································3 
제 2 절 상법의 지위·································································································12 
제 3 절 각국의 상법·································································································22 
제 4 절 상법의 이념과 특성····················································································29 
제 5 절 상법의 법원과 효력····················································································36 
제 2 장 상 인(기업의 주체) ? 56 
제 1 절 상인의 의의·································································································56 
제 2 절 상인자격의 취득과 상실·············································································75 
제 3 절 영업능력······································································································80 
제 4 절 영업의 제한·································································································83 
제 3 장 상업사용인(기업의 경영보조자) ? 86 
제 4 장 상 호(기업의 명칭) ? 112 
제 5 장 상 업 장 부 ? 139 
제 6 장 영 업 소 ? 148 
제 7 장 상업등기(기업의 공시) ? 151 
제 8 장 영업양도(기업의 이전) ? 169 
-xxix- 
xxx 주요목차 
제 2 편 상 행 위 
제 1 장 서 론 ? 203 
제 2 장 통 칙 ? 213 
제 1 절 서 설···································································································213 
제 2 절 민법 총칙편에 대한 특칙··········································································213 
제 3 절 민법 물권편에 대한 특칙··········································································219 
제 4 절 민법 채권편에 대한 특칙··········································································225 
제 5 절 유가증권에 관한 규정···············································································254 
제 6 절 상호계산····································································································256 
제 7 절 익명조합····································································································265 
제 8 절 합자조합····································································································277 
제 3 장 각 칙 ? 292 
제 1 절 대 리 상·····································································································292 
제 2 절 중 개 업·····································································································303 
제 3 절 위탁매매업································································································312 
제 4 절 운송주선업································································································326 
제 5 절 운 송 업·····································································································343 
제 1 관 총 설 ? 제 2 관 물건운송 ? 제 3 관 여객운송 
제 6 절 공중접객업································································································391 
제 7 절 창 고 업·····································································································397 
제 8 절 금융리스업································································································409 
제 9 절 가 맹 업·····································································································422 
제10절 채권매입업·································································································431 
주요목차 xxxi 
제 3 편 회 사 
제 1 장 총 설 ? 443 
제 2 장 회사법통칙 ? 458 
제 1 절 회사의 개념·······························································································458 
제 2 절 회사의 설립·······························································································489 
제 3 절 회사의 기구변경(구조조정)·····································································500 
제 4 절 회사의 해산 · 청산 · 해산명령(판결) · 계속·············································547 
제 3 장 합 명 회 사 ? 560 
제 1 절 총 설···································································································560 
제 2 절 설 립···································································································561 
제 3 절 기 구···································································································563 
제 1 관 총 설 ? 제 2 관 내부관계 ? 제 3 관 외부관계 
제 4 절 기구변경····································································································588 
제 1 관 정관변경 ? 제 2 관 사원변경(입사 · 퇴사) ? 
제 3 관 합 병 ? 제 4 관 조직변경 
제 5 절 해산과 청산·······························································································595 
제 1 관 해 산 ? 제 2 관 청 산 
제 4 장 합 자 회 사 ? 602 
제 1 절 총 설···································································································602 
제 2 절 설 립····································································································603 
제 3 절 기 구···································································································604 
제 1 관 내부관계 ? 제 2 관 외부관계 
제 4 절 기구변경····································································································610 
제 1 관 정관변경 ? 제 2 관 사원변경(입사 · 퇴사) 
제 3 관 합 병 ? 제 4 관 조직변경 
제 5 절 해산과 청산·······························································································612 
제 1 관 해 산 ? 제 2 관 청 산 
xxxii 주요목차 
제 5 장 유한책임회사 ? 613 
제 1 절 총 설···································································································613 
제 2 절 설 립···································································································619 
제 3 절 기 구···································································································622 
제 1 관 총 설 ? 제 2 관 내부관계 ? 제 3 관 외부관계 
제 4 절 기구변경····································································································633 
제 1 관 정관변경 ? 제 2 관 사원변경(가입〈입사〉 및 탈퇴〈퇴사〉) ? 
제 3 관 합 병 ? 제 4 관 조직변경 
제 5 절 회사의 회계·······························································································638 
제 6 절 해산과 청산·······························································································642 
제 1 관 해 산 ? 제 2 관 청 산 
제 6 장 주 식 회 사 ? 644 
제 1 절 총 설···································································································644 
제 2 절 주식회사의 설립·······················································································653 
제 1 관 총 설 ? 제 2 관 실체형성절차 ? 제 3 관 설립등기 ? 
제 4 관 설립하자(무효) ? 제 5 관 설립에 관한 책임 
제 3 절 주식과 주주·······························································································704 
제 1 관 주 식 ? 제 2 관 주 주 ? 제 3 관 주권과 주주명부 ? 
제 4 관 주식의 양도 ? 제 5 관 주식의 담보 ? 제 6 관 주식의 소각 ? 
제 7 관 주식의 포괄적 교환 및 이전 ? 
제 8 관 지배주주에 의한 소수주식의 강제매수 
제 4 절 기 관···································································································852 
제 1 관 총 설 
제 2 관 주주총회(기본사항의 의결기관) ? 
제 3 관 이사회 · 대표이사 또는 집행임원(업무집행기관) ? 
제 4 관 감사(監事) · 감사위원회 · 검사인 · (외부)감사인 · 준법지원인 · 준법감시인(감사기관) ? 
제 5 절 자본금의 증감(변동)···············································································1118 
제 1 관 총 설 ? 제 2 관 자본금의 증가(신주발행) ? 
제 3 관 자본금의 감소(감자〈減資〉) 
제 6 절 정관의 변경·····························································································1176 
제 7 절 회사의 회계·····························································································1181 
제 8 절 사 채·································································································1232 
제 1 관 일반사채 ? 제 2 관 특수사채 
제 9 절 조직변경 · 합병 및 분할··········································································1298 
주요목차 xxxiii 
제10절 해산과 청산······························································································1308 
제 7 장 유 한 회 사 ? 1315 
제 1 절 총 설·································································································1315 
제 2 절 설 립·································································································1318 
제 3 절 사원의 지위·····························································································1322 
제 4 절 회사의 관리·····························································································1325 
제 5 절 정관의 변경(자본금의 증감)··································································1335 
제 6 절 합병과 조직변경·····················································································1339 
제 7 절 해산과 청산·····························································································1340 
제 8 장 외 국 회 사 ? 1341 
제 9 장 벌 칙 ? 1345 
상법강의(하) 
제 4 편 어음법 · 수표법 
제 5 편 보 험 
제 6 편 해 상 
제 7 편 항공운 
세부목차 
제 1 편 총 칙 
제 1 장 서 론 
제 1 절 상법의 개념 3 
제 1 총 설·············································································································3 
제 2 실질적 의의의 상법····························································································4 
1. 총 설········································································································4 
2. 상의 개념·······································································································4 
⑴ 경제상의 상 ? ⑵ 법률상의 상 
3. 상법의 대상론································································································5 
⑴ 통일적 파악을 부정하는 견해 ? ⑵ 통일적 파악을 긍정하는 견해 
4. 실질적 의의의 상법·······················································································7 
⑴ 상법은 「기업」에 관한 법 ? ⑵ 상법은 기업에 관한 「사법(商私法)」 ? 
⑶ 상법은 기업에 관한 「특별」사법 ? ⑷ 상법은 기업에 「관한」 특별사법 
제 3 형식적 의의의 상법··························································································11 
제 4 양자의 관계·······································································································12 
1. 양자의 범위와 불일치·················································································12 
2. 양자의 관련··································································································12 
제 2 절 상법의 지위 12 
제 1 서 설···········································································································12 
제 2 상법과 민법과의 관계·······················································································12 
1. 민상이법(民商二法) 통일론(상법의 형식적 자주성)···································12 
⑴ 통일론의 발단 ? ⑵ 통일론의 이유와 비판 
2. 민법의 상화(商化)와 상법(상법의 실질적 자주성)·····································14 
⑴ 민법의 상화현상 ? ⑵ 상법의 실질적 자주성 
제 3 상법과 노동법과의 관계···················································································16 
1. 상법과 노동법의 분리·················································································16 
2. 상법과 노동법의 접근·················································································17 
-xxxiv- 
세부목차 xxxv 
제 4 상법과 경제법과의 관계···················································································18 
1. 경제법의 발생······························································································18 
2. 경제법의 의의······························································································18 
⑴ 소 극 설 ? ⑵ 적 극 설 
3. 상법과의 관계······························································································19 
⑴ 분리설(대립설) ? ⑵ 합일설(통합설) 
제 5 상법과 어음법 · 수표법과의 관계·····································································21 
제 6 상법과 기타의 법과의 관계··············································································21 
제 3 절 각국의 상법 22 
제 1 프랑스법계········································································································22 
1. 프 랑 스········································································································22 
2. 이탈리아·······································································································23 
3. 기 타······································································································23 
제 2 독일법계 ···········································································································23 
1. 독 일······································································································23 
2. 오스트리아···································································································25 
3. 스 위 스········································································································25 
4. 일 본······································································································25 
5. 기 타······································································································25 
제 3 영미법계············································································································26 
1. 영 국······································································································26 
2. 미 국······································································································26 
3. 캐 나 다········································································································27 
4. 호 주······································································································27 
제 4 상사에 관한 국제조약·······················································································28 
제 4 절 상법의 이념과 특성 29 
제 1 상법의 이념·······································································································29 
1. 기업의 유지강화··························································································29 
⑴ 영리성의 보장 ? ⑵ 자본집중의 촉진 ? ⑶ 자금조달의 원활화 ? 
⑷ 인력의 보충 ? ⑸ 위험부담의 완화 ? ⑹ 기업의 독립성의 확보 ? 
⑺ 소유와 경영의 분리 ? ⑻ 기업소멸의 회피 
2. 기업활동의 왕성과 거래의 안전·································································31 
⑴ 기업활동의 왕성 ? ⑵ 거래의 안전 
xxxvi 세부목차 
제 2 상법의 특성(경향)····························································································35 
1. 유동적 · 진보적 경향···················································································35 
2. 세계적 · 통일적 경향···················································································35 
제 5 절 상법의 법원과 효력 36 
제 1 상법의 법원(法源)····························································································36 
1. 상법의 법원의 의의와 상사에 관하여 적용될 법규···································36 
2. 상법의 법원의 종류·····················································································37 
⑴ 상사제정법 ? ⑵ 상관습법 ? ⑶ 상사자치법 ? ⑷ 보통거래약관 ? 
⑸ 상사판례법 · 상사학설법 ? ⑹ 조 리 
3. 법규적용의 순서··························································································51 
⑴ 상법전과 상관습법 ? ⑵ 상관습법과 민법전 ? ⑶ 상법전과 민법전 
제 2 상법의 효력(적용범위)·····················································································53 
1. 때(시)에 관한 효력······················································································53 
2. 곳(장소)에 관한 효력···················································································54 
3. 사람(인)에 관한 효력··················································································54 
4. 사항에 관한 효력·························································································54 
제 2 장 상 인(기업의 주체) 
제 1 절 상인의 의의 56 
제 1 총 설···········································································································56 
1. 서 설······································································································56 
2. 상인에 관한 입법주의·················································································56 
⑴ 실질주의(상행위법주의 · 객관주의 · 상사법주의) ? 
⑵ 형식주의(상인법주의 · 주관주의 · 상업법주의) ? 
⑶ 절충주의 
3. 우리 상법의 입법주의·················································································57 
⑴ 절충주의의 입법이라는 견해 ? ⑵ 형식주의의 입법이라는 견해 ? 
⑶ 형식주의에 가까운 절충주의의 입법이라는 견해 
제 2 당연상인············································································································59 
1. 의 의······································································································59 
⑴ 「자기명의」로 상행위를 하여야 한다 ? ⑵ 「상행위」를 하여야 한다 
2. 당연상인의 개념의 기초가 되는 상행위·····················································61 
⑴ 기본적 상행위(영업적 상행위) ? ⑵ 특별법상의 상행위 
세부목차 xxxvii 
제 3 의제상인(형식에 의한 상인)············································································70 
1. 의 의······································································································70 
2. 설비상인·······································································································71 
⑴ 상인적 설비 ? ⑵ 상인적 방법 
3. 민사회사·······································································································73 
제 4 소상인(간이기업)·····························································································73 
1. 소상인제도···································································································73 
2. 소상인의 의의······························································································74 
3. 소상인에게 적용되지 않는 상법의 규정·····················································74 
제 2 절 상인자격의 취득과 상실 75 
제 1 총 설···········································································································75 
1. 상인능력·······································································································75 
2. 상인자격(상인적격성)··················································································75 
3. 영업능력·······································································································75 
제 2 자연인의 상인자격····························································································76 
1. 상인자격의 취득··························································································76 
2. 상인자격의 상실··························································································77 
제 3 법인의 상인자격································································································78 
1. 상인자격의 취득··························································································78 
⑴ 사 법 인 ? ⑵ 공 법 인 
2. 상인자격의 상실··························································································80 
제 3 절 영업능력 80 
제 1 총 설···········································································································80 
제 2 미성년자············································································································80 
1. 미성년자가 스스로 영업을 하는 경우························································80 
2. 법정대리인이 영업을 대리하는 경우··························································81 
3. 미성년자가 인적회사의 무한책임사원인 경우···········································81 
제 3 피한정후견인·····································································································82 
제 4 피성년후견인·····································································································82 
제 4 절 영업의 제한 83 
제 1 총 설···········································································································83 
제 2 사법상 제한·······································································································83 
1. 계약에 의한 제한·························································································83 
xxxviii 세부목차 
2. 법률에 의한 제한·························································································83 
제 3 공법상 제한·······································································································84 
1. 공익상 및 국가재정상 이유에서 받는 제한················································84 
2. 경찰상 이유에서 받는 제한·········································································84 
3. 국민경제상 이유에서 받는 제한·································································84 
4. 특수신분상 이유에서 받는 제한·································································84 
제 3 장 상업사용인(기업의 경영보조자) 
제 1 총 설···········································································································86 
1. 상업사용인제도의 목적···············································································86 
2. 상업사용인의 의의와 종류··········································································87 
⑴ 상업사용인의 의의 ? ⑵ 상업사용인의 종류 
제 2 지 배 인·············································································································88 
1. 지배인의 의의······························································································88 
2. 지배인의 선임 · 종임···················································································89 
⑴ 선 임 ? ⑵ 종 임 ? ⑶ 등 기 
3. 지배인의 권한(지배권)················································································91 
⑴ 지배권의 내용 ? ⑵ 지배권의 범위(영역) 
4. 공동지배인···································································································94 
⑴ 의 의 ? ⑵ 능동대리(적극대리) ? ⑶ 수동대리(소극대리) ? 
⑷ 등 기 
5. 표현지배인···································································································96 
⑴ 의 의 ? ⑵ 요 건 ? ⑶ 효 과 
제 3 부분적 포괄대리권을 가진 상업사용인···························································99 
1. 의 의······································································································99 
2. 선임 · 종임··································································································100 
3. 대리권의 범위····························································································101 
4. 공동대리인 및 표현대리인········································································101 
제 4 물건판매점포사용인(의제상업사용인)··························································103 
1. 의 의····································································································103 
2. 선임 · 종임··································································································103 
3. 적용범위·····································································································104 
⑴ 장소적 제한 ? ⑵ 업무적 제한 ? ⑶ 악의의 자에 대한 제한 
세부목차 xxxix 
제 5 상업사용인의 의무(부작위의무, 광의의 경업피지의무)·······························105 
1. 총 설····································································································105 
2. 내 용····································································································106 
⑴ 경업금지의무(협의의 경업피지의무, 경업회피의무, 거래금지의무) ? 
⑵ 겸직금지의무(겸직회피의무, 특정지위취임금지의무) 
3. 의무위반의 효과························································································108 
⑴ 경업금지의무위반의 효과 ? ⑵ 겸직금지의무위반의 효과 
제 4 장 상 호(기업의 명칭) 
제 1 상호의 입법목적······························································································112 
제 2 상호의 의의·····································································································113 
제 3 상호의 선정·····································································································114 
1. 입법주의·····································································································114 
⑴ 상호자유주의 ? ⑵ 상호진실주의 ? ⑶ 절충주의 
2. 상법상의 상호선정·····················································································115 
⑴ 원칙(상호자유주의) ? ⑵ 예외(상호자유주의의 제한) 
3. 상호의 수(상호단일의 원칙)······································································117 
⑴ 개인기업(개인상인)의 경우 ? ⑵ 회사기업(회사상인)의 경우 
4. 상호의 등기································································································117 
⑴ 개인기업(개인상인)의 경우 ? ⑵ 회사기업(회사상인)의 경우 
제 4 상호의 보호·····································································································118 
1. 상호권의 의의····························································································118 
2. 상호권의 법적 성질···················································································118 
⑴ 재산권설 ? ⑵ 겸 병 설 
3. 상호권의 내용····························································································120 
⑴ 상호사용권 ? ⑵ 상호전용권 
4. 등기상호권자의 사전등기배척권······························································125 
⑴ 원 칙 ? ⑵ 예 외 
5. 가(假)등기 상호권자의 사전등기배척권··················································126 
⑴ 상호의 가등기의 요건 ? ⑵ 상호의 가등기의 효과 
제 5 상호의 이전과 폐지(변경)·············································································128 
1. 상호의 이전································································································128 
⑴ 상호의 양도 ? ⑵ 상호의 상속 
2. 상호의 폐지(변경)······················································································130 
xl 세부목차 
⑴ 의 의 ? ⑵ 등기상호에 관한 특칙 
제 6 명의대여자의 책임··························································································131 
1. 의 의····································································································131 
2. 요 건····································································································132 
⑴ 명의대여 ? ⑵ 외관존재 ? ⑶ 상대방의 선의 
3. 효 과····································································································136 
⑴ 책임의 성질 ? ⑵ 책임의 범위 
제 5 장 상 업 장 부 
제 1 서 언·········································································································139 
제 2 상업장부의 의의······························································································141 
제 3 상업장부의 종류······························································································141 
1. 회계장부·····································································································142 
⑴ 의 의 ? ⑵ 기재방법 · 기재사항 · 기재시기 
2. 대차대조표·································································································143 
⑴ 의 의 ? ⑵ 작성시기와 종류 ? ⑶ 작성방법 
제 4 상업장부에 관한 의무·····················································································144 
1. 작 성····································································································144 
⑴ 작성의무 ? ⑵ 작성기준 
2. 보 존····································································································145 
3. 제 출····································································································146 
4. 제 재····································································································146 
제 6 장 영 업 소 
제 1 영업소의 의의·································································································148 
⑴ 기업활동의 장소적 중심지 ? ⑵ 계 속 성 ? ⑶ 단 위 성 ? ⑷ 객 관 성 
제 2 영업소의 종류·································································································149 
제 3 영업소에 관한 법률상의 효과········································································149 
⑴ 일반적 효과 ? ⑵ 지점의 법률상의 효과 
세부목차 xli 
제 7 장 상업등기(기업의 공시) 
제 1 상업등기(기업공시)의 필요성·······································································151 
제 2 상업등기의 의의······························································································152 
제 3 등기사항··········································································································152 
1. 의 의····································································································152 
2. 종 류····································································································153 
⑴ 등기 주체에 의한 분류 ? ⑵ 강제 유무에 의한 분류 ? 
⑶ 법적 효과에 의한 분류 
3. 지점의 등기································································································154 
4. 변경 · 소멸의 등기·····················································································154 
제 4 상업등기의 절차······························································································154 
⑴ 신청주의 ? ⑵ 전산정보처리조직에 의한 상업등기 ? ⑶ 등기관할 ? 
⑷ 등기소의 심사권 ? ⑸ 등기의 경정과 말소 
제 5 상업등기의 공시······························································································158 
제 6 상업등기의 효력······························································································158 
1. 일반적 효력(확보적 효력 또는 선언적 효력)·············································158 
⑴ 등기 전의 효력 ? ⑵ 등기 후의 효력 ? ⑶ 일반적 효력이 미치는 범위 
2. 특수적 효력································································································163 
⑴ 창설적(설정적) 효력 ? ⑵ 보완적 효력 ? ⑶ 해제적(부수적) 효력 
3. 부실등기의 효력(공신력)···········································································164 
⑴ 의 의 ? ⑵ 요 건 ? ⑶ 효 과 
제 8 장 영업양도(기업의 이전) 
제 1 총 설·········································································································169 
1. 서 설····································································································169 
2. 영업의 의의································································································170 
⑴ 주관적 의의의 영업 ? ⑵ 객관적 의의의 영업 
3. 영업양도의 의의························································································171 
⑴ 영업양도의 법적 성질 ? ⑵ 영업양도의 의의 
제 2 영업양도의 절차······························································································180 
1. 양도계약의 당사자·····················································································180 
⑴ 양 도 인 ? ⑵ 양 수 인 
2. 양도계약의 체결························································································180 
⑴ 의사결정 ? ⑵ 계약의 체결 ? ⑶ 계약의 내용 ? ⑷ 계약의 성질 
xlii 세부목차 
3. 양도계약의 효과························································································182 
⑴ 영업재산의 이전의무 ? ⑵ 경영자지위의 이전의무 
제 3 영업양도의 효과······························································································185 
1. 대내관계(양도인의 경업피지의무)·····························································185 
⑴ 당사자간에 약정이 없는 경우 ? ⑵ 당사자간에 약정이 있는 경우 ? 
⑶ 의무위반의 효과 
2. 대외관계(영업상의 채권자 및 채무자의 보호)···········································188 
⑴ 영업상의 채권자의 보호 ? ⑵ 영업상의 채무자의 보호 
제 4 영업의 임대차·································································································196 
1. 의 의····································································································196 
2. 절 차····································································································196 
3. 효 력····································································································197 
제 5 영업의 경영위임······························································································197 
1. 의 의····································································································197 
2. 경영위임계약·····························································································198 
3. 경영관리계약·····························································································198 
제 6 영업(기업)의 담보와 강제집행······································································199 
제 2 편 상 행 위 
제 1 장 서 론 
제 1 총 설·········································································································203 
제 2 상행위법의 의의와 특성·················································································203 
1. 상행위법의 의의························································································203 
⑴ 실질적 의의의 상행위법 ? ⑵ 형식적 의의의 상행위법 ? ⑶ 양자의 관계 
2. 상행위법의 특성························································································205 
⑴ 민법에 대한 특성 ? ⑵ 기업조직법에 대한 특성 
제 3 상행위의 의의와 종류·····················································································206 
1. 상행위의 의의····························································································206 
⑴ 서 설 ? ⑵ 상행위에 관한 입법주의 ? ⑶ 상행위의 의의 
2. 상행위의 종류····························································································208 
세부목차 xliii 
⑴ 영업적 상행위와 보조적 상행위 ? ⑵ 일방적 상행위와 쌍방적 상행위 ? 
⑶ 사법인의 상행위와 공법인의 상행위 
제 2 장 통 칙 
제 1 절 서 설 213 
제 2 절 민법 총칙편에 대한 특칙 213 
제 1 상행위의 대리와 위임·····················································································213 
1. 대리의 방식(본인의 표시가 없는 경우)······················································214 
⑴ 민법의 규정(현명주의) ? ⑵ 상법의 규정(비현명주의) 
2. 본인의 사망과 대리권의 존속···································································215 
⑴ 민법의 규정 ? ⑵ 상법의 규정 
3. 상행위의 수임인의 권한············································································216 
⑴ 민법의 규정 ? ⑵ 상법의 규정 
제 2 소멸시효기간···································································································217 
⑴ 민법의 규정 ? ⑵ 상법의 규정 
제 3 절 민법 물권편에 대한 특칙 219 
제 1 상사유치권(일반상사유치권)·········································································220 
1. 민사유치권·································································································220 
2. 상사유치권(일반상사유치권)·····································································220 
⑴ 의 의 ? ⑵ 성립요건 ? ⑶ 효 력 
제 2 상사질권(유질계약의 허용)············································································224 
1. 민사질권(유질계약의 금지)········································································224 
2. 상사질권(유질계약의 허용)········································································224 
제 4 절 민법 채권편에 대한 특칙 225 
제 1 채권총칙에 대한 특칙·····················································································226 
1. 법정이율·····································································································226 
⑴ 민사법정이율 ? ⑵ 상사법정이율 
2. 연대채무·····································································································227 
⑴ 민법의 원칙(분할채무) ? ⑵ 상법의 특칙(연대채무) 
3. 연대보증·····································································································228 
⑴ 민법의 원칙 ? ⑵ 상법의 특칙 
4. 상사채무의 이행························································································231 
⑴ 채무이행의 장소 ? ⑵ 채무이행(청구)의 시기 
xliv 세부목차 
제 2 채권각칙에 대한 특칙·····················································································232 
1. 대화자간의 계약의 성립시기····································································232 
⑴ 민법의 원칙 ? ⑵ 상법의 특칙 
2. 계약의 청약을 받은 상인의 의무······························································233 
⑴ 민법의 원칙 ? ⑵ 상법의 특칙 
3. 상사매매·····································································································236 
⑴ 총 설 ? ⑵ 매도인의 공탁권 및 경매권 ? 
⑶ 확정기매매의 해제 ? ⑷ 매수인의 검사 · 통지의무 ? 
⑸ 매수인의 보관 · 공탁의무 
4. 소비대차의 이자························································································249 
⑴ 민법의 원칙 ? ⑵ 상법의 특칙 
5. 보수청구권·································································································249 
⑴ 민법의 원칙 ? ⑵ 상법의 특칙 
6. 체당금의 이자····························································································251 
⑴ 민법의 원칙 ? ⑵ 상법의 특칙 
7. 상사임치·····································································································252 
⑴ 민법의 원칙 ? ⑵ 상법의 특칙 
제 5 절 유가증권에 관한 규정 254 
제 6 절 상호계산 256 
제 1 총 설·········································································································256 
1. 상호계산제도의 목적 및 기능···································································256 
2. 상호계산제도의 보조적 상행위성·····························································256 
제 2 상호계산의 의의······························································································257 
제 3 상호계산의 효력······························································································260 
1. 상호계산기간중의 효력(소극적 효력, 상호계산불가분의 원칙)················260 
⑴ 당사자간의 효력 ? ⑵ 제 3 자에 대한 효력 
2. 상호계산기간만료 후의 효력(적극적 효력)··············································262 
⑴ 잔액채권의 성립 ? ⑵ 잔액채권의 확정 
제 4 상호계산의 종료······························································································264 
1. 종료원인·····································································································264 
⑴ 일반종료원인 ? ⑵ 특별종료원인 
2. 종료효과·····································································································264 
제 7 절 익명조합 265 
제 1 총 설·········································································································265 
세부목차 xlv 
1. 익명조합의 목적 및 기능··········································································265 
2. 익명조합과 유사제도와의 비교·································································265 
⑴ 소비대차와의 비교 ? ⑵ 민법상의 조합과의 비교 ? 
⑶ 합자회사와의 비교 ? ⑷ 합자조합과의 비교 
제 2 익명조합의 의의(설립)···················································································267 
제 3 익명조합의 효력······························································································269 
1. 대내적 효력································································································269 
⑴ 출 자 ? ⑵ 영업의 수행 ? ⑶ 손익의 분배 ? ⑷ 당사자지위의 이전 
2. 대외적 효력································································································274 
⑴ 영업자의 지위 ? ⑵ 익명조합원의 지위 
제 4 익명조합의 종료······························································································275 
1. 종료의 원인································································································275 
⑴ 약정종료원인 ? ⑵ 법정종료원인 
2. 종료의 효과································································································276 
⑴ 익명조합원이 손실을 분담하지 않는 경우 ? 
⑵ 익명조합원이 손실을 분담하는 경우 ? ⑶ 당사자가 파산한 경우 
제 8 절 합자조합 277 
제 1 총 설·········································································································277 
1. 합자조합의 목적 및 기능··········································································277 
2. 합자조합과 유사제도와의 비교·································································278 
⑴ 합자조합과 합자회사와의 비교 ? 
⑵ 합자조합과 민법상 조합과의 비교 
제 2 합자조합의 의의(설립)···················································································279 
1. 합자조합계약서의 작성·············································································279 
⑴ 합자조합의 의의 ? ⑵ 합자조합계약서의 법정기재사항 
2. 합자조합 설립의 등기···············································································282 
제 3 기 구·········································································································283 
1. 내부관계·····································································································283 
⑴ 출 자 ? ⑵ 업무집행 ? ⑶ 조합원의 의무 ? ⑷ 손익의 분배 ? 
⑸ 지 분 
2. 외부관계·····································································································286 
⑴ 대 리 ? ⑵ 책 임 
제 4 조합원의 변경(가입 · 탈퇴)············································································287 
1. 가 입····································································································287 
2. 탈 퇴····································································································288 
xlvi 세부목차 
⑴ 법적 근거 ? ⑵ 임의탈퇴 ? ⑶ 비임의탈퇴 ? ⑷ 탈퇴의 효과 
제 5 해산과 청산·····································································································290 
1. 해 산····································································································290 
2. 청 산····································································································291 
제 3 장 각 칙 
제 1 절 대 리 상 292 
제 1 총 설·········································································································292 
1. 대리상제도의 목적·····················································································292 
2. 경제상의 대리점························································································293 
제 2 대리상의 의의·································································································294 
제 3 대리상의 권리의무··························································································296 
1. 대리상과 본인과의 관계············································································296 
⑴ 대리상의 의무 ? ⑵ 대리상의 권리 
2. 대리상과 제 3 자와의 관계·········································································301 
⑴ 대리상의 의무 · 책임 ? ⑵ 대리상의 권리 
제 4 대리상계약의 종료··························································································302 
1. 일반종료원인·····························································································302 
2. 법정종료원인·····························································································302 
제 2 절 중 개 업 303 
제 1 총 설·········································································································303 
제 2 중개인의 의의·································································································303 
제 3 중개인의 의무·································································································306 
1. 견품보관의무·····························································································307 
2. 결약서(結約書) 교부의무··········································································307 
3. 장부작성 및 등본교부의무········································································308 
4. 성명 · 상호묵비의무···················································································309 
5. 개입(介入)의무(이행담보책임)··································································309 
제 4 중개인의 권리·································································································310 
1. 보수청구권·································································································310 
⑴ 발생요건 ? ⑵ 비 율 
2. 비용상환청구권의 부존재·········································································312 
세부목차 xlvii 
3. 급여수령권의 부존재·················································································312 
제 3 절 위탁매매업 312 
제 1 총 설·········································································································312 
제 2 위탁매매인의 의의··························································································313 
제 3 위탁매매계약의 법률관계···············································································315 
1. 외부관계·····································································································315 
⑴ 위탁매매인과 제 3 자(상대방)와의 관계 ? 
⑵ 위탁자와 제 3 자(상대방)와의 관계 ? 
⑶ 위탁자와 위탁매매인의 채권자와의 관계(위탁물의 귀속관계) 
2. 내부관계(위탁매매인과 위탁자와의 관계)·················································317 
⑴ 위탁매매인의 의무 ? ⑵ 위탁매매인의 권리 ? 
⑶ 매수위탁자가 상인인 경우의 특칙 
제 4 준위탁매매인···································································································325 
제 4 절 운송주선업 326 
제 1 총 설·········································································································326 
제 2 운송주선인의 의의··························································································327 
제 3 운송주선인의 의무 · 책임···············································································330 
1. 운송주선인의 의무·····················································································330 
⑴ 일반적 의무(주의의무) ? ⑵ 개별적 의무 
2. 운송주선인의 손해배상책임······································································331 
⑴ 책임발생원인 ? ⑵ 손해배상액 ? 
⑶ 불법행위책임과의 관계 ? ⑷ 고가물에 대한 특칙 ? 
⑸ 운송주선인의 책임의 시효 ? ⑹ 수하인에 대한 책임 
제 4 운송주선인의 권리··························································································335 
1. 보수청구권·································································································335 
⑴ 보수청구권의 발생 ? ⑵ 보수청구권의 행사시기 ? 
⑶ 보수청구권이 발생하지 않는 경우 
2. 비용상환청구권··························································································337 
3. 유 치 권······································································································337 
4. 개 입 권······································································································338 
⑴ 개입권의 의의 ? ⑵ 개입권행사의 요건 ? 
⑶ 개입권의 성질과 행사 ? ⑷ 개입권행사의 효과 ? ⑸ 개입의 의제 
5. 운송주선인의 채권의 소멸시효·································································340 
제 5 수하인의 지위·································································································340 
xlviii 세부목차 
제 6 순차운송주선에 관한 특칙·············································································340 
1. 순차운송주선의 형태·················································································340 
⑴ 부분운송주선 ? ⑵ 하수운송주선 ? ⑶ 중간(중계)운송주선 
2. 순차운송주선인의 법률관계······································································342 
⑴ 전자의 권리를 행사할 의무 ? ⑵ 전자의 권리의 취득 ? 
⑶ 운송인의 권리의 취득 
제 5 절 운 송 업 343 
제 1 관 총 설·····································································································343 
제 1 운송업의 목적·································································································343 
제 2 운송의 종류·····································································································344 
1. 물건운송 · 여객운송 · 통신운송(운송의 객체에 의한 분류)·······················344 
2. 육상운송 · 해상운송 · 항공(공중)운송(운송지역에 의한 분류)··················344 
제 3 법원(法源)······································································································345 
1. 육상운송·····································································································345 
2. 해상운송·····································································································345 
3. 항공(공중)운송···························································································346 
제 4 운송인의 의의·································································································346 
제 5 운송계약의 체결······························································································347 
1. 운송계약의 성질························································································347 
2. 운송계약의 당사자·····················································································348 
3. 운송계약의 체결························································································348 
제 2 관 물건운송·····································································································348 
제 1 운송인의 의무 · 책임·······················································································348 
1. 총 설····································································································348 
2. 화물상환증교부의무··················································································349 
3. 운송물의 보관 및 처분의무·······································································349 
⑴ 보관의무 ? ⑵ 처분의무 
4. 운송물인도의무··························································································351 
⑴ 화물상환증이 발행된 경우 ? ⑵ 화물상환증이 발행되지 않은 경우 
5. 운송인의 손해배상책임·············································································355 
⑴ 책임발생원인 ? ⑵ 손해배상액 ? ⑶ 고가물에 대한 특칙 ? 
⑷ 불법행위책임과의 관계 ? ⑸ 면책약관 ? ⑹ 손해배상책임의 소멸 
제 2 운송인의 권리·································································································363 
1. 운송물인도청구권······················································································363 
세부목차 xlix 
2. 화물명세서교부청구권··············································································363 
⑴ 의 의 ? ⑵ 기 능 ? ⑶ 성 질 ? ⑷ 기재사항 ? 
⑸ 부실기재의 책임 
3. 운임 및 기타 비용청구권··········································································365 
⑴ 운임청구권 ? ⑵ 비용 등의 상환청구권 
4. 유 치 권······································································································366 
5. 운송물의 공탁 · 경매권··············································································367 
⑴ 공 탁 권 ? ⑵ 경 매 권 
6. 운송인의 채권의 소멸시효········································································370 
제 3 화물상환증······································································································370 
1. 총 설····································································································370 
⑴ 의 의 ? ⑵ 성 질 ? ⑶ 효 용 
2. 발 행····································································································371 
⑴ 발행자와 청구권자 ? ⑵ 형 식 
3. 양 도····································································································371 
4. 효 력····································································································372 
⑴ 채권적 효력(문언증권성) ? ⑵ 물권적 효력(인도증권성) 
제 4 순차운송··········································································································380 
1. 순차운송의 의의 및 형태··········································································380 
⑴ 의 의 ? ⑵ 형 태 
2. 순차운송인의 법률관계·············································································381 
⑴ 순차운송인의 연대책임 ? ⑵ 순차운송인의 대위 
제 3 관 여객운송·····································································································383 
제 1 총 설·········································································································383 
제 2 여객운송계약의 특징······················································································383 
⑴ 물건운송계약과 다른 점 ? ⑵ 승차권의 법적 성질 
제 3 여객운송인의 손해배상책임···········································································385 
1. 여객이 입은 손해에 대한 책임··································································385 
2. 여객의 수하물에 대한 책임·······································································389 
3. 순차여객운송인의 책임·············································································390 
4. 손해배상책임의 소멸·················································································390 
제 4 여객운송인의 권리··························································································390 
1. 운임청구권·································································································390 
2. 유 치 권······································································································391 
l 세부목차 
제 6 절 공중접객업 391 
제 1 총 설·········································································································391 
제 2 공중접객업자의 의의······················································································392 
제 3 공중접객업자의 책임······················································································393 
1. 임치받은 물건에 대한 책임·······································································393 
⑴ 책임의 의의 ? ⑵ 임치받은 물건 ? 
⑶ 손해배상청구권자(고객) ? ⑷ 면책의 특약 
2. 임치받지 아니한 물건에 대한 책임··························································395 
⑴ 책임의 의의 ? ⑵ 주의의 정도 ? ⑶ 사 용 인 ? 
⑷ 손해배상청구권자(고객) ? ⑸ 면책의 특약 
3. 고가물에 대한 책임···················································································395 
4. 책임의 소멸시효························································································396 
제 7 절 창 고 업 397 
제 1 총 설·········································································································397 
1. 창고업의 효용····························································································397 
2. 창고업의 감독····························································································397 
제 2 창고업자의 의의······························································································398 
제 3 창고업자의 의무 · 책임···················································································399 
1. 보관의무·····································································································399 
2. 창고증권교부의무······················································································400 
3. 임치물의 검사 · 견품적취 · 보존처분에 따를 의무···································400 
4. 임치물의 반환의무·····················································································401 
5. 임치물의 훼손 · 하자 등의 통지의무························································401 
6. 손해배상책임·····························································································402 
⑴ 책임원인 ? ⑵ 책임의 소멸 
제 4 창고업자의 권리······························································································403 
1. 임치물인도청구권······················································································403 
2. 보관료 및 비용상환청구권········································································404 
⑴ 보관료청구권 ? ⑵ 비용상환청구권 
3. 유 치 권······································································································404 
4. 공탁 및 경매권···························································································405 
5. 손해배상청구권··························································································405 
6. 채권의 단기시효························································································405 
세부목차 li 
제 5 창고증권··········································································································405 
1. 의 의····································································································405 
2. 입법주의·····································································································406 
⑴ 단권주의 ? ⑵ 복권주의 ? ⑶ 병용주의 
3. 성 질····································································································407 
4. 발 행····································································································407 
⑴ 발행청구 ? ⑵ 기재사항 
5. 양 도····································································································408 
6. 효 력····································································································408 
⑴ 채권적 효력 및 물권적 효력 ? 
⑵ 창고증권에 의한 입질과 일부출고 
제 8 절 금융리스업 409 
제 1 총 설·········································································································409 
1. 우리나라에서 (금융)리스의 의의······························································409 
2. 금융리스의 경제적 기능············································································411 
⑴ 장 점 ? ⑵ 단 점 
제 2 리스의 종류·····································································································412 
1. 금융리스와 운용리스·················································································412 
⑴ 금융리스 ? ⑵ 운용리스 
2. 기타의 종류································································································412 
제 3 금융리스거래의 구조······················································································413 
1. 당 사 자······································································································413 
2. 금융리스거래의 과정·················································································413 
3. 금융리스계약의 법적 성질········································································414 
⑴ 임대차계약설(특수임대차계약설) ? 
⑵ 무명계약설(비전형계약설) ? ⑶ 금융리스계약의 형식 
제 4 금융리스업자의 의의······················································································416 
제 5 금융리스거래의 법률관계···············································································417 
1. 금융리스업자의 의무·················································································417 
⑴ 금융리스이용자가 금융리스물건을 수령할 수 있도록 할 의무 ? 
⑵ 금융리스이용자의 공급자에 대한 손해배상청구권의 행사에 협력할 의무 
2. 금융리스이용자의 의무·············································································418 
⑴ 금융리스물건 수령증 발급의무 ? ⑵ 금융리스료 지급의무 ? 
⑶ 금융리스물건의 유지 및 관리의무 
lii 세부목차 
3. 공급자의 의무····························································································419 
⑴ 금융리스물건의 인도의무 ? 
⑵ 공급자의 인도의무 불이행시 금융리스이용자의 직접청구권 
4. 금융리스계약의 해지·················································································420 
⑴ 금융리스업자의 해지 ? ⑵ 금융리스이용자의 해지 
제 9 절 가 맹 업 422 
제 1 총 설·········································································································422 
1. 우리나라에서 가맹업(프랜차이즈)의 의의················································422 
2. 가맹업의 경제적 기능···············································································423 
⑴ 장 점 ? ⑵ 단 점 
제 2 가맹업의 종류·································································································424 
1. 발생시점에 따른 분류···············································································424 
2. 대상사업에 따른 분류···············································································424 
3. 당사자에 따른 분류···················································································424 
제 3 가맹거래의 구조······························································································424 
1. 당 사 자······································································································424 
2. 가맹거래의 과정························································································425 
3. 가맹계약의 법적 성질···············································································425 
제 4 가맹업자 및 가맹상의 의의············································································425 
1. 가맹업자의 의의························································································425 
2. 가맹상의 의의····························································································426 
제 5 가맹거래의 법률관계······················································································426 
1. 내부관계·····································································································426 
⑴ 가맹업자의 의무 ? ⑵ 가맹상의 의무 ? 
⑶ 가맹상의 영업양도(가맹업자의 동의) ? ⑷ 가맹계약의 해지 
2. 외부관계·····································································································430 
⑴ 원 칙 ? ⑵ 예 외 
제10절 채권매입업 431 
제 1 총 설·········································································································431 
1. 우리나라에서 채권매입업(팩토링)3)의 의의·············································431 
2. 경제적 기능································································································432 
제 2 채권매입업의 종류··························································································433 
1. 상환청구권의 유무에 따른 분류·······························································433 
세부목차 liii 
2. 채권양도의 통지유무에 따른 분류···························································433 
3. 선급의 유무에 따른 분류··········································································434 
4. 기타의 분류································································································434 
제 3 채권매입거래의 구조······················································································434 
1. 당 사 자······································································································434 
2. 채권매입거래의 과정·················································································435 
3. 채권매입거래의 법적 성질········································································435 
제 4 채권매입업자의 의의······················································································437 
제 5 채권매입거래의 법률관계···············································································437 
1. 채권매입업자와 거래기업간의 법률문제··················································437 
2. 채권매입업자와 채무자간의 법률문제·····················································438 
제 3 편 회 사 
제 1 장 총 설 
제 1 회사제도의 경제적 기능·················································································443 
1. 공동기업형태·····························································································443 
2. 회사제도의 장점과 단점············································································443 
⑴ 장 점 ? ⑵ 단 점 
3. 회사의 종류와 기능의 차이·······································································444 
제 2 회사법의 개념·································································································445 
1. 실질적 의의의 회사법···············································································445 
2. 형식적 의의의 회사법···············································································445 
제 3 회사법의 특성·································································································446 
1. 단체법적(조직법적) 성질과 거래법적(행위법적) 성질·····························446 
2. 이익단체법적(영리적) 성질과 공동단체법적(사회적) 성질·····················446 
3. 강행법적 성질과 임의법적 성질·······························································448 
제 4 회사법의 법원(法源)······················································································448 
1. 상 법 전······································································································448 
2. 상법전 이외의 법원(法源)·········································································449 
liv 세부목차 
⑴ 조 약 ? ⑵ 특별법령 ? ⑶ 관 습 법 ? ⑷ 각 회사의 정관 
3. 법원(法源) 적용의 순위············································································450 
제 5 각국의 회사법·································································································450 
1. 독일법계·····································································································451 
⑴ 독 일 ? ⑵ 오스트리아 ? ⑶ 스 위 스 ? 
⑷ 중 국 ? ⑸ 일 본 
2. 프랑스법계·································································································453 
⑴ 프 랑 스 ? ⑵ 이탈리아 
3. 영미법계·····································································································454 
⑴ 영 국 ? ⑵ 미 국 
4. EU법계·······································································································456 
제 2 장 회사법통칙 
제 1 절 회사의 개념 458 
제 1 회사의 의의·····································································································458 
1. 영 리 성······································································································458 
2. 사 단 성······································································································460 
⑴ 사단성의 폐지 ? ⑵ 1인회사 
3. 법 인 성······································································································463 
⑴ 법인의 의의와 주소 ? ⑵ 법인의 속성 ? ⑶ 회사와 법인성 ? 
⑷ 법인격부인론 
4. 기 타····································································································472 
⑴ 상 인 성 ? ⑵ 준 칙 성 
제 2 회사의 종류·····································································································472 
1. 상법상의 종류····························································································473 
⑴ 합명회사 · 합자회사 · 유한책임회사 · 주식회사 · 유한회사(사원의 책임에 의한 종류) ? 
⑵ 상사회사 · 민사회사(영업목적에 의한 종류) ? 
⑶ 모회사 · 자회사(주식소유비율에 의한 종류) 
2. 설립근거법상의 종류·················································································476 
⑴ 내국회사 · 외국회사(설립준거법에 의한 종류) ? 
⑵ 일반법상의 회사 · 특별법상의 회사(설립법원〈法源〉에 의한 종류) 
3. 학설(강학)상의 종류··················································································477 
⑴ 인적회사 · 물적회사(사회학적 형태에 의한 종류) ? 
세부목차 lv 
⑵ 개인주의적 회사 · 단체주의적 회사(법률적 형태에 의한 종류) 
4. 경제상의 종류····························································································478 
⑴ 지배회사 · 종속회사(지배 · 종속관계에 의한 종류) ? 
⑵ 내자회사·외자회사·합작회사·초국적 회사(다국적회사)(자본금의 내외에 의한 종류) ? 
⑶ 상장회사 · 비상장회사(상장 여부에 의한 종류) ? 
⑷ 기업집단 · 계열회사 · 지주회사(독점규제 및 공정거래에 관한 법률에 의한 종류) ? 
⑸ 공공적 법인(산업내용에 의한 종류) 
제 3 회사의 능력·····································································································481 
1. 회사의 권리능력························································································481 
⑴ 성질에 의한 제한 ? ⑵ 법률에 의한 제한 ? ⑶ 목적에 의한 제한 
2. 의사능력 · 행위능력···················································································487 
3. 불법행위능력·····························································································488 
4. 공법상의 능력····························································································489 
제 2 절 회사의 설립 489 
제 1 회사설립에 관한 입법주의·············································································489 
⑴ 자유설립주의 ? ⑵ 특허주의 ? 
⑶ 면허주의 또는 허가주의 ? ⑷ 준칙주의 
제 2 회사의 설립절차······························································································490 
1. 설립행위의 의의 및 법적 성질··································································490 
⑴ 설립행위의 의의 ? ⑵ 설립행위의 법적 성질 
2. 회사의 실체형성절차·················································································492 
⑴ 정관작성 ? ⑵ 사원확정절차 ? 
⑶ 출자이행절차 ? ⑷ 기관구성절차 
3. 설립등기·····································································································494 
⑴ 등기사항 ? ⑵ 등기기간 ? 
⑶ 등기사항의 변경 ? ⑷ 설립등기의 효력 
제 3 회사설립의 하자(무효 · 취소)·········································································495 
1. 의 의····································································································495 
2. 합명회사의 설립하자·················································································496 
⑴ 소의 원인 ? ⑵ 주장방법 · 소의 당사자 · 제소기간 ? 
⑶ 소의 절차 ? ⑷ 판결의 효과 
3. 합자회사의 설립하자·················································································497 
4. 유한책임회사의 설립하자·········································································498 
lvi 세부목차 
5. 주식회사의 설립하자·················································································498 
⑴ 소의 원인 ? ⑵ 주장방법 · 소의 당사자 · 제소기간 ? 
⑶ 소의 절차 ? ⑷ 판결의 효과 
6. 유한회사의 설립하자·················································································499 
7. 사실상의 회사····························································································499 
⑴ 의 의 ? ⑵ 사실상의 회사의 법률관계 
제 3 절 회사의 기구변경(구조조정) 500 
제 1 총 설·········································································································500 
제 2 회사의 조직변경······························································································501 
1. 경제적 목적································································································501 
2. 의 의····································································································501 
3. 종 류····································································································502 
4. 절 차····································································································502 
⑴ 합명회사에서 합자회사로의 조직변경 ? 
⑵ 합자회사에서 합명회사로의 조직변경 ? 
⑶ 주식회사에서 유한회사 또는 유한책임회사로의 조직변경 ? 
⑷ 유한회사 또는 유한책임회사에서 주식회사로의 조직변경 
5. 효력발생·····································································································505 
6. 하 자····································································································505 
제 3 회사의 합병·····································································································506 
1. 총 설····································································································506 
2. 합병의 경제적 목적···················································································506 
3. 합병의 의의································································································507 
⑴ 합병의 개념 ? ⑵ 합병의 종류 ? ⑶ 합병의 성질 ? ⑷ 합병계약의 성질 
4. 합병의 자유와 제한···················································································511 
⑴ 합병의 자유 ? ⑵ 합병의 제한 
5. 합병의 절차································································································512 
⑴ 합병계약 ? ⑵ 합병결의(대내적 절차) ? 
⑶ 회사채권자의 보호(대외적 절차) ? ⑷ 그 밖의 절차 ? 
⑸ 합병등기 ? ⑹ 합병공시 
6. 합병의 효과································································································519 
⑴ 회사의 소멸과 회사의 설립(변경) ? 
⑵ 권리의무 및 사원의 포괄적 이전 ? ⑶ 소송법상의 효과 
7. 합병의 무효································································································521 
⑴ 총 설 ? ⑵ 무효의 원인 ? ⑶ 합병무효의 소 ? 
세부목차 lvii 
⑷ 합병무효판결의 효과 
제 4 회사의 분할·····································································································524 
1. 의 의····································································································524 
2. 분할의 경제적 목적···················································································526 
3. 분할의 종류································································································526 
⑴ 단순분할 · 분할합병 ? ⑵ 흡수분할 · 신설분할 ? 
⑶ 인적 분할 · 물적(재산) 분할 ? 
⑷ 보통분할 · 간이분할 또는 소규모분할 
4. 분할의 성질································································································531 
5. 분할의 자유와 제한···················································································532 
6. 분할의 절차································································································532 
⑴ 분할계획서 또는 분할합병계약서의 작성 ? 
⑵ 분할결의(대내적 절차) ? ⑶ 회사채권자의 보호(대외적 절차) ? 
⑷ 그 밖의 절차 ? ⑸ 분할등기 ? ⑹ 분할공시 
7. 분할의 효과································································································538 
⑴ 권리의무의 포괄적 이전 ? ⑵ 분할 후의 회사의 책임 
8. 분할의 무효································································································542 
⑴ 분할무효의 소의 절차 ? ⑵ 분할무효판결의 효과 
제 5 회사(기업)의 매수(M&A)··············································································544 
제 6 기업(회사)결합································································································546 
1. 의 의····································································································546 
2. 종류 및 법적 규제·····················································································547 
⑴ 계약에 의한 기업(회사)결합 ? 
⑵ 자본참가에 의한 기업(회사)결합 
제 4 절 회사의 해산 · 청산 · 해산명령(판결) · 계속 547 
제 1 해 산·········································································································547 
1. 해산의 의의································································································547 
2. 해산회사의 법적 성질···············································································548 
3. 해산사유·····································································································548 
⑴ 합명회사의 해산사유 ? ⑵ 합자회사의 해산사유 ? 
⑶ 유한책임회사의 해산사유 ? ⑷ 주식회사의 해산사유 ? 
⑸ 유한회사의 해산사유 
4. 해산의 효과································································································550 
제 2 청 산·········································································································550 
1. 청산의 의의································································································550 
lviii 세부목차 
2. 청 산 인······································································································551 
3. 청산의 절차································································································552 
⑴ 청산사무 ? ⑵ 청산절차의 방법 
4. 청산의 종결과 종결의제············································································552 
제 3 회사의 해산명령과 해산판결··········································································553 
1. 회사의 해산명령························································································553 
⑴ 회사의 해산명령의 의의 ? ⑵ 회사의 해산명령의 사유 ? 
⑶ 회사의 해산명령의 절차 ? ⑷ 회사의 해산명령의 효과 
2. 회사의 해산판결························································································555 
⑴ 회사의 해산판결의 의의 ? ⑵ 회사의 해산판결의 사유 ? 
⑶ 회사의 해산판결의 절차 ? ⑷ 회사의 해산판결의 효과 
제 4 회사의 계속·····································································································557 
1. 회사의 계속의 의의···················································································557 
2. 회사의 계속의 사유 및 절차·····································································557 
⑴ 각종 회사의 계속의 사유 및 절차 ? ⑵ 조직변경에 의한 회사의 계속 ? 
⑶ 회사의 계속등기 
3. 회사의 계속의 효과···················································································559 
제 3 장 합 명 회 사 
제 1 절 총 설 560 
제 1 의 의·········································································································560 
제 2 경제적 기능·····································································································560 
제 2 절 설 립 561 
제 1 설립절차··········································································································561 
1. 정관의 작성································································································561 
⑴ 절대적 기재사항 ? ⑵ 상대적 기재사항 ? ⑶ 임의적 기재사항 
2. 설립등기·····································································································562 
⑴ 등기사항 ? ⑵ 첨부서류 
제 2 설립하자(무효 · 취소)·····················································································563 
제 3 절 기 구 563 
제 1 관 총 설·····································································································563 
제 1 합명회사의 법률관계의 구조··········································································563 
제 2 합명회사에 관한 법규의 성격 및 적용순서···················································564 
세부목차 lix 
제 2 관 내부관계·····································································································564 
제 1 출 자·········································································································564 
1. 출자의 의의 및 종류··················································································564 
⑴ 출자의 의의 ? ⑵ 출자의 종류 
2. 출자의무의 발생과 소멸············································································566 
3. 출자의 이행································································································566 
⑴ 출자이행의 시기와 방법 ? ⑵ 출자불이행의 효과 
제 2 업무집행··········································································································567 
1. 업무집행의 의의························································································567 
2. 업무집행기관·····························································································567 
⑴ 업무집행권의 취득 ? ⑵ 업무집행권의 상실(정지) ? 
⑶ 업무집행기관과 회사와의 관계 
3. 업무집행의 방법························································································570 
⑴ 사원의 의사결정 ? ⑵ 업무집행의 실행 
4. 업무감시권·································································································571 
제 3 경업피지의무와 자기거래제한·······································································571 
1. 경업피지의무·····························································································571 
⑴ 의 의 ? ⑵ 의무위반의 효과 
2. 자기거래제한·····························································································572 
⑴ 의 의 ? ⑵ 의무위반의 효과 
제 4 손익의 분배·····································································································573 
1. 손익의 의의································································································573 
2. 손익분배의 표준························································································573 
3. 손익분배의 시기························································································573 
4. 손익분배의 방법························································································573 
제 5 지 분·········································································································574 
1. 지분의 의의································································································574 
2. 지분의 양도································································································575 
3. 지분의 상속································································································576 
4. 지분의 입질 · 압류·····················································································577 
⑴ 지분의 입질 ? ⑵ 지분의 압류 
제 3 관 외부관계·····································································································578 
제 1 회사대표··········································································································578 
1. 회사대표의 의의························································································578 
lx 세부목차 
2. 대표기관·····································································································579 
⑴ 대표권의 취득 ? ⑵ 대표권의 제한 및 상실 
3. 대표의 방법································································································580 
⑴ 원칙(단독대표) ? ⑵ 예외(공동대표) 
4. 대표기관의 권한························································································580 
5. 등 기····································································································582 
제 2 사원의 책임·····································································································582 
1. 사원의 책임의 성질···················································································582 
⑴ 인적 책임 ? ⑵ 연대책임 ? ⑶ 무한책임 ? ⑷ 직접책임 
2. 사원의 책임의 존속기간············································································583 
⑴ 회사성립 후에 입사한 사원의 책임 ? 
⑵ 퇴사(지분양도) · 해산 후의 사원의 책임 
3. 사원의 책임의 내용···················································································584 
⑴ 책임의 내용인 회사채무의 종류 ? ⑵ 책임이행의 조건 ? 
⑶ 회사채무의 내용과 사원책임의 내용과의 관계 ? 
⑷ 사원이 회사채권자인 경우 
4. 사원의 책임이행의 효과············································································587 
5. 자칭사원의 책임························································································588 
제 4 절 기구변경 588 
제 1 관 정관변경·····································································································588 
1. 의 의····································································································588 
2. 절 차····································································································588 
3. 등 기····································································································589 
제 2 관 사원변경(입사·퇴사)···················································································589 
제 1 입 사·········································································································589 
1. 의 의····································································································589 
2. 절 차····································································································590 
3. 등 기····································································································590 
4. 효 과····································································································590 
제 2 퇴 사·········································································································590 
1. 의 의····································································································590 
2. 퇴사원인·····································································································591 
⑴ 임의퇴사 ? ⑵ 강제퇴사 ? ⑶ 당연퇴사 
3. 퇴사절차·····································································································593 
세부목차 lxi 
4. 퇴사의 효과································································································594 
⑴ 회사채권자의 보호 ? ⑵ 회사와 퇴사원과의 관계 
제 3 관 합 병·····································································································595 
제 4 관 조직변경·····································································································595 
제 5 절 해산과 청산 595 
제 1 관 해 산·····································································································595 
1. 해산사유·····································································································595 
2. 해산등기·····································································································596 
3. 해산의 효과································································································596 
⑴ 청산절차의 개시 ? ⑵ 회사의 계속 
제 2 관 청 산·····································································································597 
1. 총 설····································································································597 
2. 임의청산·····································································································597 
⑴ 사 유 ? ⑵ 채권자보호절차 ? ⑶ 청산종결 
3. 법정청산·····································································································599 
⑴ 사 유 ? ⑵ 청 산 인 ? ⑶ 청산사무 ? ⑷ 청산종결 
제 4 장 합 자 회 사 
제 1 절 총 설 602 
제 1 의 의·········································································································602 
제 2 경제적 기능·····································································································603 
제 2 절 설 립 603 
1. 설립절차·····································································································603 
⑴ 정관작성 ? ⑵ 설립등기 
2. 설립하자(무효 · 취소)·················································································604 
제 3 절 기 구 604 
제 1 관 내부관계·····································································································604 
제 1 출 자·········································································································604 
제 2 업무집행··········································································································604 
1. 업무집행기관·····························································································604 
⑴ 무한책임사원 ? ⑵ 유한책임사원 ? ⑶ 업무집행권의 상실 
2. 업무집행의 방법························································································605 
lxii 세부목차 
3. 업무감시권·································································································605 
제 3 경업피지의무와 자기거래제한·······································································606 
1. 경업피지의무·····························································································606 
2. 자기거래제한·····························································································606 
제 4 손익의 분배·····································································································607 
제 5 지 분·········································································································607 
1. 지분의 양도································································································607 
2. 지분의 입질 · 압류·····················································································607 
제 2 관 외부관계·····································································································608 
제 1 회사대표··········································································································608 
1. 대표기관·····································································································608 
⑴ 무한책임사원 ? ⑵ 유한책임사원 ? ⑶ 대표권의 제한 및 상실 
2. 대표의 방법································································································609 
제 2 사원책임··········································································································609 
1. 무한책임사원의 책임·················································································609 
2. 유한책임사원의 책임·················································································609 
3. 사원의 책임의 변경···················································································610 
4. 자칭무한책임사원의 책임·········································································610 
제 4 절 기구변경 610 
제 1 관 정관변경·····································································································610 
제 2 관 사원변경(입사 · 퇴사)·················································································610 
제 3 관 합 병·····································································································611 
제 4 관 조직변경·····································································································612 
제 5 절 해산과 청산 612 
제 1 관 해 산·····································································································612 
제 2 관 청 산·····································································································612 
제 5 장 유한책임회사 
제 1 절 총 설 613 
제 1 의 의·········································································································613 
제 2 경제적 기능·····································································································614 
제 3 유한책임회사와 합명회사 및 유한회사와의 차이점······································615 
세부목차 lxiii 
1. 유한책임회사와 합명회사와의 차이점·····················································615 
2. 유한책임회사와 유한회사와의 차이점·····················································616 
제 2 절 설 립 619 
제 1 설립절차··········································································································619 
1. 정관의 작성································································································620 
⑴ 절대적 기재사항 ? ⑵ 상대적 등기사항 ? ⑶ 임의적 등기사항 
2. 출자의 이행································································································621 
3. 설립등기·····································································································621 
⑴ 등기사항 ? ⑵ 첨부서류 
제 2 설립하자(무효 · 취소)·····················································································622 
제 3 절 기 구 622 
제 1 관 총 설·····································································································622 
제 2 관 내부관계·····································································································623 
제 1 출자 및 지분····································································································623 
1. 출 자····································································································623 
2. 지 분····································································································623 
⑴ 지분의 의의 ? ⑵ 지분의 양도 ? ⑶ 자기지분의 양수금지 ? 
⑷ 지분의 상속 ? ⑸ 지분의 입질 · 압류 
제 2 업무집행··········································································································625 
1. 업무집행기관·····························································································625 
⑴ 업무집행권의 취득 ? ⑵ 업무집행권의 상실(정지) ? 
⑶ 업무집행자와 회사와의 관계 
2. 업무집행의 방법························································································627 
⑴ 사원의 의사결정 ? ⑵ 업무집행의 실행 
3. 업무감시권·································································································628 
제 3 경업피지의무와 자기거래제한·······································································628 
1. 경업피지의무·····························································································628 
⑴ 의 의 ? ⑵ 의무위반의 효과 
2. 자기거래제한·····························································································629 
⑴ 의 의 ? ⑵ 의무위반의 효과 
제 3 관 외부관계·····································································································629 
제 1 회사대표··········································································································629 
1. 대표기관·····································································································629 
⑴ 대표권의 취득 ? ⑵ 대표권의 제한 및 상실 
lxiv 세부목차 
2. 대표의 방법································································································631 
⑴ 원칙(단독대표) ? ⑵ 예외(공동대표) 
3. 대표기관의 권한························································································631 
4. 등 기····································································································631 
제 2 사원의 제 3 자에 대한 책임·············································································632 
제 3 대표소송··········································································································633 
제 4 절 기구변경 633 
제 1 관 정관변경·····································································································633 
제 2 관 사원변경(가입〈입사〉 및 탈퇴〈퇴사〉)························································634 
제 1 가입(입사)·······································································································634 
제 2 탈퇴(퇴사)·······································································································635 
1. 의 의····································································································635 
2. 탈퇴원인·····································································································635 
⑴ 임의퇴사 ? ⑵ 강제퇴사 ? ⑶ 당연퇴사 
3. 퇴사절차·····································································································636 
4. 퇴사의 효과································································································637 
⑴ 지분환급청구권 ? ⑵ 상호변경청구권 
제 3 관 합 병·····································································································637 
제 4 관 조직변경·····································································································638 
제 5 절 회사의 회계 638 
1. 총 설····································································································638 
2. 재무제표·····································································································639 
⑴ 작 성 ? ⑵ 비치 · 공시 
3. 자본금의 증가와 감소···············································································639 
⑴ 자본금의 의의 ? ⑵ 자본금의 증가 ? ⑶ 자본금의 감소 
4. 잉여금의 분배····························································································640 
⑴ 잉여금의 분배의 요건 ? ⑵ 잉여금 분배의 기준 ? 
⑶ 잉여금 분배의 청구 등 
제 6 절 해산과 청산 642 
제 1 관 해 산·····································································································642 
1. 해산사유·····································································································642 
2. 해산등기·····································································································642 
3. 해산의 효과································································································642 
세부목차 lxv 
⑴ 청산절차의 개시 ? ⑵ 회사의 계속 
제 2 관 청 산·····································································································643 
제 6 장 주 식 회 사 
제 1 절 총 설 644 
제 1 주식회사의 개념······························································································644 
1. 자 본 금······································································································644 
⑴ 자본금의 의의 ? ⑵ 자본금의 규모 ? ⑶ 자본금에 관한 입법례 ? 
⑷ 자본금에 관한 원칙 
2. 주 식····································································································650 
3. 주주의 유한책임························································································651 
제 2 주식회사의 경제적 기능·················································································652 
제 2 절 주식회사의 설립 653 
제 1 관 총 설·····································································································653 
제 1 주식회사 설립의 특색·····················································································653 
제 2 주식회사 설립의 방법·····················································································654 
1. 발기설립과 모집설립·················································································654 
2. 양자의 차이································································································655 
⑴ 설립절차상의 차이 ? ⑵ 설립경과조사상의 차이 ? 
⑶ 정관의 효력발생시기의 차이 
제 3 발기인 · 발기인조합 · 설립중의 회사·····························································656 
1. 발 기 인······································································································656 
⑴ 의 의 ? ⑵ 자격 및 수 ? 
⑶ 권 한 ? ⑷ 의무 · 책임 
2. 발기인조합·································································································658 
⑴ 의 의 ? ⑵ 권 한 ? 
⑶ 발기인 및 설립중의 회사와의 관계 
3. 설립중의 회사····························································································659 
⑴ 의 의 ? ⑵ 법적 성질 ? 
⑶ 성립시기 ? ⑷ 법률관계 ? ⑸ 권리의무의 이전 
제 2 관 실체형성절차·····························································································666 
제 1 정관의 작성·····································································································667 
1. 정관의 의의································································································667 
lxvi 세부목차 
⑴ 정관의 개념 ? ⑵ 정관의 종류 ? ⑶ 정관의 방식 
2. 정관의 기재사항························································································667 
⑴ 절대적 기재사항 ? ⑵ 상대적 기재사항 ? ⑶ 임의적 기재사항 
제 2 그 밖의 실체형성절차·····················································································674 
1. 주식발행사항의 결정절차(공통절차)························································675 
2. 주식인수절차·····························································································676 
⑴ 발기설립의 경우 ? ⑵ 모집설립의 경우 
3. 출자이행절차·····························································································681 
⑴ 발기설립의 경우 ? ⑵ 모집설립의 경우 
4. 기관구성절차(이사 · 감사의 선임)·····························································686 
⑴ 발기설립의 경우 ? ⑵ 모집설립의 경우 
5. 설립경과조사절차······················································································687 
⑴ 발기설립의 경우 ? ⑵ 모집설립의 경우 
제 3 관 설립등기·····································································································691 
제 1 등기시기··········································································································691 
제 2 등기절차··········································································································691 
제 3 등기사항··········································································································692 
제 4 등기효력··········································································································693 
⑴ 본질적 효력 ? ⑵ 부수적 효력 
제 4 관 설립하자(무효)···························································································693 
⑴ 설립무효의 원인 ? ⑵ 설립무효의 주장 ? ⑶ 그 밖의 사항 
제 5 관 설립에 관한 책임·····················································································694 
제 1 발기인의 책임·································································································695 
1. 회사가 성립한 경우···················································································695 
⑴ 회사에 대한 책임 ? ⑵ 제 3 자에 대한 책임 
2. 회사가 불성립한 경우···············································································701 
제 2 이사 · 감사 · 공증인 · 감정인의 책임······························································701 
⑴ 의 의 ? ⑵ 성 질 ? ⑶ 이행청구 
제 3 검사인의 책임·································································································703 
⑴ 의 의 ? ⑵ 성 질 
제 4 유사발기인의 책임··························································································703 
⑴ 의 의 ? ⑵ 성 질 ? ⑶ 내 용 ? ⑷ 이행청구 
제 3 절 주식과 주주 704 
제 1 관 주 식·····································································································704 
세부목차 lxvii 
제 1 주식의 의의·····································································································704 
1. 자본금의 구성단위로서의 주식·································································705 
⑴ 자본금의 구성단위 ? ⑵ 주식의 불가분성 ? ⑶ 주식의 공유 ? 
⑷ 주식의 분할 ? ⑸ 주식의 병합 
2. 주주의 지위(주주의 권리의무)로서의 주식···············································708 
⑴ 주식이 나타내는 권리(주주권) ? ⑵ 주식이 나타내는 의무 ? 
⑶ 주식의 평등성 
제 2 주식의 분류·····································································································713 
1. 액면주식 · 무액면주식···············································································713 
⑴ 액면주식 ? ⑵ 무액면주식 
2. 기명주식 · 무기명주식···············································································715 
⑴ 기명주식 ? ⑵ 무기명주식 
3. 종류주식·····································································································716 
⑴ 의 의 ? ⑵ 발 행 ? ⑶ 종류주식에 관한 특칙 ? 
⑷ 종류주식의 분류 
제 2 관 주 주·····································································································734 
제 1 주주의 의의·····································································································734 
⑴ 주주의 개념 ? ⑵ 주주의 자격 ? ⑶ 주주의 수 
제 2 주주의 종류·····································································································734 
⑴ 주식의 종류에 따른 분류 ? 
⑵ 주식소유의 수량에 따른 분류 ? 
⑶ 주식소유의 동기에 따른 분류 ? 
⑷ 주주명부에의 주식소유자의 등재명의에 따른 분류 ? 
⑸ 주식소유자가 누구이냐에 따른 분류 
제 3 주주의 권리의무······························································································735 
1. 주주의 권리································································································735 
⑴ 의 의 ? ⑵ 종 류 
2. 주주의 의무································································································736 
⑴ 출자의무 ? ⑵ 유한책임 
제 4 실질주주··········································································································738 
1. 의 의····································································································738 
⑴ 광의의 실질주주 ? ⑵ 협의의 실질주주 
2. 주권의 예탁································································································740 
⑴ 주권의 예탁절차 ? ⑵ 예탁(계좌부기재)의 효력 
3. 권리행사·····································································································740 
⑴ 실질주주의 권리행사 ? ⑵ 명의주주(한국예탁결제원)의 권리행사 
lxviii 세부목차 
제 3 관 주권과 주주명부·······················································································741 
제 1 주 권·········································································································741 
1. 의의와 성질································································································741 
⑴ 주권의 의의 ? ⑵ 주권의 성질 
2. 분 류····································································································742 
⑴ 기명주권 · 무기명주권 ? ⑵ 단일주권 · 병합주권 
3. 발 행····································································································742 
⑴ 주권의 발행시기 ? ⑵ 주권의 효력발생시기 ? ⑶ 주권의 기재사항 
4. 주식의 전자등록························································································747 
⑴ 인정이유 ? ⑵ 주식의 발행에 관한 전자등록 ? 
⑶ 주식의 이전 등에 관한 전자등록 ? 
⑷ 전자등록의 권리추정적 효력 및 선의취득 
5. 주권의 불소지제도·····················································································751 
⑴ 인정이유 ? ⑵ 주주의 불소지신고 ? ⑶ 회사의 처리 ? ⑷ 주권의 발행 
6. 주권의 상실과 선의취득············································································753 
제 2 주주명부··········································································································754 
1. 의 의····································································································754 
2. 기재사항·····································································································754 
3. 비치 · 공시··································································································754 
4. 효 력····································································································755 
⑴ 대 항 력 ? ⑵ 추정력(자격수여적 효력) ? 
⑶ 면 책 력 ? ⑷ 그 밖의 효력 
5. 전자주주명부·····························································································758 
6. 주주명부의 폐쇄와 기준일········································································758 
⑴ 의 의 ? ⑵ 주주명부의 폐쇄 ? ⑶ 기 준 일 
7. 실질주주명부·····························································································761 
⑴ 의 의 ? ⑵ 작 성 ? ⑶ 효 력 
제 4 관 주식의 양도·······························································································762 
제 1 주식양도의 의의······························································································762 
제 2 주식양도자유의 원칙······················································································763 
제 3 주식양도의 제한······························································································764 
1. 법률에 의한 제한·······················································································764 
⑴ 상법상의 제한 ? ⑵ 특별법상의 제한 
2. 정관에 의한 제한·······················································································789 
⑴ 인정이유 ? ⑵ 양도제한의 요건 ? ⑶ 양도승인의 절차 ? 
세부목차 lxix 
⑷ 승인거부의 효력 
제 4 주식양도의 방법······························································································798 
1. 주권발행 전의 양도방법············································································798 
2. 주권발행 후의 양도방법············································································799 
⑴ 상법상의 양도방법(주권의 교부) ? 
⑵ 자본시장과 금융투자업에 관한 법률상의 특칙 
3. 명의개서(〈기명〉주식 양도의 회사에 대한 대항요건)································801 
⑴ 의의 및 필요성 ? ⑵ 명의개서의 절차 ? ⑶ 명의개서의 효력 ? 
⑷ 명의개서 미필주주(광의의 실기주주)의 지위 ? 
⑸ 명의개서대리인 
제 5 주식매수선택권·······························································································808 
1. 의의 및 성질······························································································808 
⑴ 의 의 ? ⑵ 성 질 
2. 장점과 단점································································································808 
⑴ 장 점 ? ⑵ 단 점 
3. 연혁 및 각국의 주식매수선택권제도························································809 
⑴ 미 국 ? ⑵ 프 랑 스 ? ⑶ 일 본 ? ⑷ 우리나라 
4. 부여의 주체와 대상자···············································································810 
⑴ 부여의 주체 ? ⑵ 부여의 대상자 
5. 부여방법·····································································································811 
⑴ 신주인수권방식 ? ⑵ 자기주식교부방식 ? ⑶ 주가차액교부방식 
6. 부여한도·····································································································812 
7. 행사가격·····································································································812 
8. 부여요건·····································································································813 
⑴ 정관의 규정 ? ⑵ 주주총회의 특별결의 ? ⑶ 부여계약 ? 
⑷ 등기 및 공시 
9. 행 사····································································································814 
⑴ 행사요건 ? ⑵ 행사효과 
10. 양도제한···································································································816 
11. 취 소··································································································816 
제 5 관 주식의 담보·······························································································817 
제 1 의 의·········································································································817 
제 2 주식담보의 자유와 제한·················································································817 
1. 주식담보자유의 원칙·················································································817 
2. 주식담보의 제한························································································818 
lxx 세부목차 
⑴ 권리주의 담보 ? ⑵ 주권발행 전의 주식의 담보 ? 
⑶ 자기주식의 담보 ? ⑷ 자회사에 의한 모회사주식의 담보 
제 3 주식의 입질·····································································································821 
1. 성 질····································································································821 
2. 주식의 입질방법························································································821 
⑴ 약 식 질 ? ⑵ 등 록 질 
제 4 주식의 양도담보······························································································824 
제 5 주권예탁결제제도에서의 주식담보································································825 
제 6 관 주식의 소각·······························································································826 
제 1 의 의·········································································································826 
제 2 종 류·········································································································826 
제 3 배당가능이익으로써 취득한 자기주식의 소각··············································827 
1. 목 적····································································································827 
2. 배당가능이익으로써 자기주식을 취득하기 위한 요건····························827 
⑴ 재원상 제한 ? ⑵ 방법상 제한 
3. 자기주식 소각의 방법···············································································828 
4. 자기주식 소각의 효과···············································································828 
⑴ 자본금에 미치는 영향 ? ⑵ 수권주식수에 미치는 영향 
제 7 관 주식의 포괄적 교환 및 이전··································································828 
제 1 서 언·········································································································828 
제 2 주식의 포괄적 교환························································································829 
1. 의 의····································································································829 
2. 절 차····································································································830 
⑴ 주식교환계약서의 작성 ? ⑵ 주주총회의 승인결의 ? 
⑶ 그 밖의 절차 ? ⑷ 변경등기 ? ⑸ 공 시 ? 
⑹ 주권상장법인에 대한 특칙 
3. 효 과····································································································838 
⑴ 완전모회사가 되는 회사의 자본금의 증가 ? 
⑵ 완전자회사가 되는 회사의 설립 및 그 회사의 구(舊) 주권의 실효 
4. 주식교환무효의 소·····················································································839 
⑴ 주식교환무효의 소의 절차 ? ⑵ 주식교환무효판결의 효과 
제 3 주식의 포괄적 이전························································································840 
1. 의 의····································································································840 
2. 절 차····································································································841 
⑴ 주식이전계획서의 작성 ? ⑵ 주주총회의 승인결의 ? 
세부목차 lxxi 
⑶ 그 밖의 절차 ? ⑷ 설립등기 ? ⑸ 공 시 ? 
⑹ 주권상장법인에 대한 특칙 
3. 효 과····································································································844 
⑴ 완전모회사의 설립 ? 
⑵ 완전자회사가 되는 회사의 설립 및 그 회사의 구(舊) 주권의 실효 
4. 주식이전무효의 소·····················································································845 
제 8 관 지배주주에 의한 소수주식의 강제매수···············································845 
제 1 서 언·········································································································845 
제 2 지배주주의 주식매도청구권···········································································846 
1. 의 의····································································································846 
2. 주식매도청구권의 법적 성질····································································846 
3. 주식매도청구권의 당사자·········································································847 
⑴ 주식매도청구권자(지배주주) ? 
⑵ 주식매도청구의 상대방(소수주주) 
4. 주식매도청구의 행사요건·········································································848 
⑴ 경영상 목적을 달성하기 위하여 필요 ? ⑵ 사전 주주총회의 승인 ? 
⑶ 소수주주에 대한 사전 공고 · 통지 
5. 주식매도청구의 행사효과·········································································849 
⑴ 소수주주의 주식매도의무 ? ⑵ 주식매도가액의 결정 ? 
⑶ 주식의 이전시기 
제 3 소수주주의 주식매수청구권···········································································850 
1. 의 의····································································································850 
2. 주식매수청구권의 법적 성질····································································850 
3. 주식매수청구권의 당사자·········································································851 
⑴ 주식매수청구권자(소수주주) ? 
⑵ 주식매수청구의 상대방(지배주주) 
4. 주식매수청구의 행사요건·········································································851 
5. 주식매수청구의 행사효과·········································································851 
⑴ 지배주주의 주식매수의무 ? ⑵ 주식매수가액의 결정 ? 
⑶ 주식의 이전시기 
제 4 절 기 관 852 
제 1 관 총 설·····································································································852 
제 1 서 설·········································································································852 
제 2 주식회사 기관의 연혁적 고찰········································································853 
제 3 주식회사 기관의 비교법적 고찰·····································································856 
lxxii 세부목차 
1. 주주총회·····································································································856 
⑴ 한 국 ? ⑵ 독 일 ? ⑶ 프 랑 스 ? ⑷ 영 미 
2. 업무집행기관·····························································································858 
⑴ 한 국 ? ⑵ 독 일 ? ⑶ 프 랑 스 ? ⑷ 영 미 
3. 감독(사)기관······························································································862 
⑴ 한 국 ? ⑵ 독 일 ? ⑶ 프 랑 스 ? ⑷ 영 미 
4. 종합비교·····································································································865 
제 2 관 주주총회(기본사항의 의결기관)·································································871 
제 1 의 의·········································································································871 
제 2 권한(결의사항)································································································872 
1. 상법상의 권한····························································································873 
⑴ 기관구성과 관련한 권한 ? ⑵ 회계와 관련한 권한 ? 
⑶ 업무감독과 관련한 권한 ? ⑷ 기본기구의 변경과 관련한 권한 
2. 특별법상의 권한························································································873 
3. 정관상의 권한····························································································874 
제 3 소 집·········································································································875 
1. 소집권자·····································································································875 
⑴ 원 칙 ? ⑵ 예 외 
2. 소집시기·····································································································877 
⑴ 정기총회 ? ⑵ 임시총회 
3. 소집지와 소집장소·····················································································878 
⑴ 소 집 지 ? ⑵ 소집장소 
4. 소집절차·····································································································879 
⑴ 통지의 필요성 ? ⑵ (기명)주주에 대한 통지 ? 
⑶ 연기와 속행 ? ⑷ 소집절차를 흠결한 총회 
제 4 주주제안권······································································································884 
1. 의 의····································································································884 
2. 당 사 자······································································································884 
⑴ 제안권자 ? ⑵ 상 대 방 
3. 행사방법·····································································································885 
4. 효 과····································································································885 
제 5 의 결 권···········································································································886 
1. 의의 및 성질······························································································886 
⑴ 의 의 ? ⑵ 성 질 
2. 의결권의 수································································································887 
세부목차 lxxiii 
⑴ 원 칙 ? ⑵ 예 외 
3. 의결권의 행사방법·····················································································893 
⑴ 총 설 ? ⑵ 의결권의 대리행사 ? ⑶ 의결권의 불통일행사 ? 
⑷ 서면에 의한 의결권의 행사 ? ⑸ 전자적 방법에 의한 의결권의 행사 ? 
⑹ 의결권행사방법과 관련한 그 밖의 사항 
제 6 의사와 결의·····································································································903 
1. 의 사····································································································903 
⑴ 의사방법 ? ⑵ 의 장 ? ⑶ 의 사 록 
2. 결 의····································································································904 
⑴ 결의의 의의 및 법적 성질 ? ⑵ 결의방법 ? 
⑶ 결의요건(결의능력) 
제 7 주주총회결의 반대주주의 주식매수청구권···················································915 
1. 의 의····································································································915 
2. 주식매수청구권의 법적 성질····································································916 
3. 연혁 및 각국의 주식매수청구권·······························································917 
4. 주식매수청구권의 당사자·········································································918 
⑴ 주식매수청구권자 ? ⑵ 주식매수청구의 상대방 
5. 주식매수청구권의 행사절차······································································919 
⑴ 사전반대통지 ? ⑵ 사후매수청구 
6. 주식매수청구권의 행사효과······································································921 
⑴ 회사의 주식매수의무 ? ⑵ 주식매수가액의 결정 
7. 주식매수청구권의 실효(失效)···································································924 
제 8 종류주주총회···································································································924 
1. 의의 및 효력······························································································924 
2. 종류주주총회의 결의를 요하는 경우························································925 
3. 주주총회와의 이동(異同)··········································································926 
제 9 주주총회결의의 하자······················································································926 
1. 총 설····································································································926 
2. 결의취소의 소····························································································927 
⑴ 소의 원인 ? ⑵ 소의 당사자 ? ⑶ 제소기간 ? ⑷ 소의 절차 ? 
⑸ 판결의 효력 ? ⑹ 소의 성질 
3. 결의무효확인의 소·····················································································934 
⑴ 소의 원인 ? ⑵ 소의 당사자 ? ⑶ 제소기간 ? 
⑷ 소의 절차 ? ⑸ 판결의 효력 ? ⑹ 소의 성질 
4. 결의부존재확인의 소·················································································938 
lxxiv 세부목차 
⑴ 소의 원인 ? ⑵ 소의 당사자 ? ⑶ 제소기간 ? 
⑷ 소의 절차 ? ⑸ 판결의 효력 ? ⑹ 소의 성질 
5. 부당결의취소 · 변경의 소··········································································942 
⑴ 소의 원인 ? ⑵ 소의 당사자 ? ⑶ 제소기간 ? 
⑷ 소의 절차 ? ⑸ 판결의 효력 ? ⑹ 소의 성질 
제 3 관 이사회·대표이사 또는 집행임원(업무집행기관)································943 
제 1 총 설·········································································································943 
제 2 이 사·········································································································948 
1. 의 의····································································································948 
⑴ 개 념 ? ⑵ 회사와의 관계 
2. 선임 · 종임··································································································949 
⑴ 선 임 ? ⑵ 종 임 
3. 권 한····································································································967 
4. 이사의 보수································································································968 
⑴ 보수의 개념 ? ⑵ 보수액의 결정방법 ? ⑶ 퇴 직 금 
제 3 이 사 회···········································································································972 
1. 의 의····································································································972 
2. 소 집····································································································973 
⑴ 소집권자 ? ⑵ 소집절차 
3. 권 한····································································································975 
⑴ 집행임원 비설치회사에서의 이사회의 권한 ? 
⑵ 집행임원 설치회사에서의 이사회의 권한 
4. 결 의····································································································980 
⑴ 결의요건(결의능력) ? ⑵ 결의와 관련된 제반사항 ? 
⑶ 결의의 하자 
5. 의 사 록······································································································984 
⑴ 의사록의 작성의무 ? ⑵ 의사록의 기재사항 ? 
⑶ 의사록의 열람 또는 등사청구 
6. 이사회내 위원회························································································986 
⑴ 의 의 ? ⑵ 구 성 ? ⑶ 소 집 ? 
⑷ 권 한 ? ⑸ 결 의 ? ⑹ 의 사 록 
제 4 대표이사··········································································································990 
1. 의 의····································································································990 
2. 선임·종임····································································································991 
⑴ 선 임 ? ⑵ 종 임 
세부목차 lxxv 
3. 권 한····································································································993 
⑴ 업무집행권 ? ⑵ 대 표 권 
4. 표현대표이사···························································································1004 
⑴ 의의 및 인정이유 ? ⑵ 타제도와의 관계 ? 
⑶ 요 건 ? ⑷ 효 과 ? ⑸ 적용범위 
제 5 집행임원········································································································1017 
1. 의 의··································································································1017 
2. 지 위··································································································1020 
3. 선임·해임··································································································1021 
4. 권 한··································································································1023 
⑴ 업무집행권 ? ⑵ 대 표 권 
제 6 이사 · 집행임원의 의무(이사 · 집행임원과 회사간의 이익조정)················1024 
1. 일반적 의무(선관의무와 충실의무)··························································1024 
2. 경업피지의무···························································································1028 
⑴ 경업금지의무(협의의 경업피지의무) ? ⑵ 겸직금지의무 
3. 회사기회유용금지의무············································································1031 
⑴ 의 의 ? ⑵ 회사의 사업기회 ? 
⑶ 회사의 사업기회 유용금지의 대상 ? 
⑷ 이사회의 승인 ? ⑸ 상법 제397조의 2 위반의 효과 
4. 자기거래금지의무····················································································1038 
⑴ 의 의 ? ⑵ 적용범위 ? ⑶ 이사회의 승인 ? 
⑷ 상법 제398조 위반의 효과 ? ⑸ 상장회사에 대한 특칙 
5. 보고의무···································································································1049 
⑴ 의의 및 인정이유 ? ⑵ 내 용 ? ⑶ 위반효과 
6. 비밀유지의무···························································································1051 
7. 감시의무···································································································1051 
⑴ 인정여부 ? ⑵ 인정범위 ? ⑶ 위반효과 
제 7 이사 · 집행임원의 책임·················································································1054 
1. 회사에 대한 책임·····················································································1055 
⑴ 손해배상책임 ? ⑵ 자본금 충실의 책임 
2. 제 3 자에 대한 책임··················································································1068 
⑴ 의의 및 인정이유 ? 
⑵ 대표이사·대표집행임원의 제 3 자에 대한 책임과의 관계 ? 
⑶ 책임의 원인 ? ⑷ 책임의 성질 ? ⑸ 제 3 자의 범위 ? 
⑹ 책임의 부담자 
lxxvi 세부목차 
제 8 이사 · 집행임원의 위법행위에 대한 주주의 직접감독································1076 
1. 총 설··································································································1076 
2. 위법행위 유지청구권···············································································1077 
⑴ 의 의 ? ⑵ 요 건 ? ⑶ 당 사 자 ? 
⑷ 행사방법 ? ⑸ 효 과 
3. 대표소송···································································································1080 
⑴ 의 의 ? ⑵ 성 질 ? ⑶ 인정범위 ? ⑷ 당 사 자 ? 
⑸ 요 건 ? ⑹ 절 차 ? ⑺ 효 과 
제 4 관 감사(監事)·감사위원회·검사인·(외부)감사인·준법지원인· 
준법감시인(감사기관)····························································································1087 
제 1 감사(監事)····································································································1088 
1. 감사제도의 발생······················································································1088 
2. 감사(監事)의 의의···················································································1088 
3. 감사(監事)의 선임 · 종임·········································································1089 
⑴ 선 임 ? ⑵ 종 임 
4. 감사(監事)의 권한···················································································1094 
⑴ 업무 및 회계감사권 ? ⑵ 그 밖의 권한 
5. 감사(監事)의 의무···················································································1097 
⑴ 선관의무 ? ⑵ 그 밖의 의무 
6. 감사(監事)의 책임···················································································1098 
제 2 감사위원회····································································································1100 
1. 의 의··································································································1100 
2. 설 치··································································································1102 
3. 구 성··································································································1103 
⑴ 위원의 수 ? ⑵ 위원의 자격 · 선임 · 종임 ? ⑶ 위원의 임기 
4. 운 영··································································································1105 
⑴ 대표 · 공동대표 ? ⑵ 소집 · 결의 등 ? ⑶ 전문가의 도움 
5. 권 한··································································································1106 
⑴ 업무 및 회계감사권 ? ⑵ 그 밖의 권한 
6. 의 무··································································································1106 
⑴ 선관의무 ? ⑵ 그 밖의 의무 
7. 책 임··································································································1107 
제 3 검 사 인·········································································································1107 
1. 의 의··································································································1107 
2. 선임기관 및 직무권한·············································································1107 
세부목차 lxxvii 
⑴ 법원이 선임하는 경우 ? ⑵ 주주총회가 선임하는 경우 
3. 자격 · 원수(員數) · 임기 · 등기································································1108 
⑴ 자 격 ? ⑵ 원수(員數) ? ⑶ 임 기 ? ⑷ 등 기 
4. 책 임··································································································1109 
제 4 (외부)감사인·································································································1109 
1. 감사인의 의의 · 선임···············································································1109 
⑴ 의 의 ? ⑵ 선 임 
2. 감사인의 권한 · 의무 · 책임·····································································1111 
⑴ 권 한 ? ⑵ 의 무 ? ⑶ 책 임 
제 5 준법지원인····································································································1113 
1. 준법지원인의 의의···················································································1113 
2. 지 위··································································································1114 
3. 선임 · 해임································································································1115 
4. 의 무··································································································1116 
⑴ 선관주의의무 ? ⑵ 보고의무 ? 
⑶ 영업비밀준수의무 ? ⑷ 경업피지의무 
5. 책 임··································································································1117 
6. 준법지원인과 관련한 회사의 의무·························································1117 
제 6 준법감시인····································································································1117 
제 5 절 자본금의 증감(변동) 1118 
제 1 관 총 설···································································································1118 
제 2 관 자본금의 증가(신주발행)········································································1121 
제 1 보통의 신주발행····························································································1121 
1. 의 의··································································································1121 
2. 신주인수권·······························································································1122 
⑴ 의 의 ? ⑵ 주주의 신주인수권 ? ⑶ 제 3 자의 신주인수권 
3. 신주발행의 절차······················································································1135 
⑴ 신주발행사항의 결정 ? 
⑵ 신주배정기준일 공고 및 청약최고(신주인수권자가 있는 경우) ? 
⑶ 모집절차(신주인수권자가 없는 경우) ? ⑷ 인 수(청약과 배정) ? 
⑸ 납입 및 현물출자의 이행 ? ⑹ 신주발행의 효력발생 ? ⑺ 등 기 
4. 이사의 책임······························································································1143 
⑴ 자본금 충실책임 ? ⑵ 손해배상책임 
5. 신주의 할인발행(액면미달발행)······························································1144 
lxxviii 세부목차 
⑴ 할인발행의 의의 ? ⑵ 할인발행의 요건 ? 
⑶ 회사채권자의 보호절차 
6. 신주의 위법 · 불공정발행에 대한 조치···················································1146 
⑴ 총 설 ? ⑵ 주주의 신주발행 유지청구권 ? 
⑶ 통모인수인의 책임 ? ⑷ 신주발행의 무효 
제 2 특수한 신주발행····························································································1156 
1. 준비금의 자본금 전입에 의한 신주발행·················································1156 
⑴ 의 의 ? ⑵ 자본금 전입의 대상 ? ⑶ 자본금 전입의 결의기관 ? 
⑷ 자본금 전입의 결의시기 · 효력발생시기 ? 
⑸ 자본금 전입에 의한 무상주교부 ? 
⑹ 신주의 효력발생시기(무상신주의 주주가 되는 시기) ? 
⑺ 단주(端株)의 처리 ? ⑻ 무상주교부의 통지 및 물상대위 ? 
⑼ 등 기 
2. 주식배당에 의한 신주발행······································································1162 
3. 전환주식 또는 전환사채의 전환에 의한 신주발행································1163 
4. 신주인수권부사채의 신주인수권의 행사에 의한 신주발행···················1164 
5. 회사의 흡수합병 또는 분할합병으로 인한 신주발행·····························1164 
6. 주식의 포괄적 교환으로 인한 신주발행·················································1165 
7. 주식의 병합 또는 분할에 의한 신주발행···············································1166 
제 3 관 자본금의 감소(감자〈減資〉)····································································1167 
제 1 의 의·······································································································1167 
제 2 감자의 방법···································································································1167 
1. 액면주식에서 주금액의 감소 또는 무액면주식에서 
자본금의 액의 감소·················································································1168 
⑴ 액면주식에서 주금액의 감소 ? 
⑵ 무액면주식에서 자본금의 액의 감소 
2. 주식수의 감소··························································································1168 
⑴ 액면주식에서 주식수의 감소 ? 
⑵ 무액면주식에서 주식수의 감소 
제 3 감자의 절차···································································································1169 
1. 주주총회의 특별결의···············································································1169 
2. 채권자보호절차························································································1170 
3. 주식에 대한 조치·····················································································1170 
⑴ 액면주식에서 주금액의 감소의 경우 ? 
⑵ 주식수의 감소의 경우 
세부목차 lxxix 
4. 등 기··································································································1172 
제 4 감자의 효력···································································································1172 
1. 감자의 효력발생시기···············································································1172 
2. 감자차익금(減資差益金)의 처리·····························································1173 
제 5 감자의 무효···································································································1173 
1. 의 의··································································································1173 
2. 감자무효의 소··························································································1174 
⑴ 무효원인 ? ⑵ 소의 요건 ? 
⑶ 감자무효의 소와 주주총회결의취소의 소 등과의 관계 ? 
⑷ 소의 절차 ? ⑸ 판결의 효력 
제 6 절 정관의 변경 1176 
제 1 정관변경의 의의····························································································1176 
제 2 정관변경의 절차····························································································1177 
1. 주주총회의 특별결의···············································································1177 
2. 종류주주총회의 결의···············································································1178 
3. 등 기··································································································1178 
제 3 정관변경의 효력····························································································1178 
제 4 정관변경에서의 특수한 문제········································································1179 
1. 수권주식총수의 증감···············································································1179 
2. 액면주식에서 주금액의 변경··································································1180 
⑴ 액면주식에서 주금액의 인상 ? ⑵ 액면주식에서 주금액의 인하 
제 7 절 회사의 회계 1181 
제 1 회계규정의 필요성························································································1181 
제 2 회계절차········································································································1183 
1. 재무제표 등의 작성·················································································1183 
⑴ 상업장부의 작성 ? ⑵ 재무제표 및 그 부속명세서의 작성 ? 
⑶ 영업보고서의 작성 
2. 재무제표 등의 감사와 비치 · 공시··························································1187 
⑴ 재무제표 등의 감사 ? ⑵ 재무제표 등의 비치 · 공시 
3. 재무제표 등의 승인 · 공고·······································································1189 
⑴ 정기총회에서의 승인 ? ⑵ 재무제표의 승인의 효과 ? 
⑶ 대차대조표의 공고 
제 3 재무제표의 기재사항····················································································1191 
1. 총 설··································································································1191 
lxxx 세부목차 
2. 자 본 금····································································································1192 
3. 준 비 금····································································································1193 
⑴ 총 설 ? ⑵ 법정준비금 ? ⑶ 임의준비금 
제 4 이익배당········································································································1197 
1. 총 설··································································································1197 
2. 이익배당(협의의 이익배당 또는 현금배당)··············································1198 
⑴ 의 의 ? ⑵ 이익배당의 요건 ? ⑶ 이익배당의 확정 ? 
⑷ 이익배당의 기준 ? ⑸ 이익배당금의 지급 ? ⑹ 위법배당의 효과 
3. 현물배당···································································································1203 
⑴ 현물배당의 의의 · 효용 ? ⑵ 현물배당의 요건 
4. 주식배당···································································································1204 
⑴ 주식배당의 의의 · 효용 ? ⑵ 주식배당의 본질 ? 
⑶ 주식배당의 요건 ? ⑷ 주식배당의 절차 ? 
⑸ 주식배당의 효과 ? ⑹ 위법한 주식배당 
5. 중간배당···································································································1217 
⑴ 중간배당의 의의 및 성질 ? ⑵ 중간배당의 요건 ? 
⑶ 중간배당의 확정 ? ⑷ 중간배당의 기준 ? 
⑸ 중간배당금의 지급 ? ⑹ 위법중간배당의 효과 
제 5 주주의 경리감독····························································································1222 
1. 총 설··································································································1222 
2. 재무제표와 그 부속명세서 · 영업보고서 및 감사보고서의 
열람권(단독주주권)·················································································1222 
3. 회계장부열람권(소수주주권)···································································1223 
⑴ 인정이유 ? ⑵ 열람권자 ? ⑶ 권리의 내용 ? ⑷ 열람의 거부 
4. 검사인을 통한 회사의 업무 · 재산상태조사권(소수주주권)···················1225 
⑴ 인정이유 ? ⑵ 검사인의 선임 ? ⑶ 검사인의 업무처리 
제 6 회사의 회계에 관한 기타규정······································································1227 
1. 회사의 이익공여금지···············································································1227 
⑴ 이익공여금지의 취지 ? ⑵ 이익공여의 요건 ? 
⑶ 이익공여의 효과(이익반환의무) 
2. 회사사용인의 우선변제권·······································································1230 
제 8 절 사 채 1232 
제 1 관 일반사채···································································································1232 
제 1 사채(社債)의 개념························································································1232 
1. 사채의 의의······························································································1232 
세부목차 lxxxi 
⑴ 사채의 경제적 의의 ? ⑵ 사채의 법률적 의의 
2. 사채와 주식의 이동(異同)·······································································1233 
⑴ 양자의 공통점 ? ⑵ 양자의 차이점 ? ⑶ 양자의 접근 
3. 사채의 종류······························································································1235 
⑴ 사채권자에게 부여된 권리의 내용에 따른 분류(일반〈보통〉사채 · 특수사채) ? 
⑵ 사채권(社債券)에 사채권자의 성명이 기재되어 있는지 여부에 따른 분류(기명사채 · 무기명사채) ? 
⑶ 사채를 위하여 물상담보가 설정되어 있는지 여부에 따른 분류(무담보사채 · 담보부사채) ? 
⑷ 사채의 등록여부에 따른 분류(현물사채 · 등록사채) 
4. 사채계약의 법적 성질·············································································1236 
제 2 사채의 모집(발행)························································································1237 
1. 총 설··································································································1237 
2. 사채모집의 방법······················································································1238 
⑴ 총액인수 ? ⑵ 공 모 
3. 사채모집의 절차······················································································1240 
⑴ 이사회의 결의 ? ⑵ 사채계약의 성립(인수) ? ⑶ 납 입 ? 
⑷ 등 기 ? ⑸ 일정규모 이상의 사채발행에 관한 특칙 
제 3 채권(債券)과 사채원부 · 사채등록부···························································1242 
1. 채권(債券)································································································1242 
⑴ 채권(債券)의 의의 · 성질 ? ⑵ 채권(債券)의 종류 ? 
⑶ 채권(債券)의 발행 ? ⑷ 등록사채에 있어서의 채권(債券)의 불발행 ? 
⑸ 채권(債券)의 재발행 
2. 사채원부···································································································1244 
3. 사채등록부·······························································································1244 
제 4 사채의 양도와 입질······················································································1244 
1. 무기명사채의 양도와 입질······································································1245 
2. 기명사채의 양도와 입질··········································································1245 
⑴ 기명사채의 양도 ? ⑵ 기명사채의 입질 
3. 선의취득···································································································1247 
제 5 사채의 이자지급과 상환···············································································1247 
1. 사채의 이자지급······················································································1247 
⑴ 이자지급 ? ⑵ 이권(利券) 
2. 사채의 상환······························································································1248 
lxxxii 세부목차 
⑴ 의 의 ? ⑵ 상환의 기한 ? ⑶ 상환의 방법 ? 
⑷ 사채관리회사가 있는 경우의 상환 ? ⑸ 상환청구권의 소멸시효기간 ? 
⑹ 기채회사의 불공정행위에 대한 사채관리회사의 취소의 소 
제 6 사채권자의 공동단체성················································································1250 
1. 사채관리회사···························································································1251 
⑴ 사채관리회사의 의의 ? ⑵ 사채관리회사의 자격 ? 
⑶ 사채관리회사의 선임 · 해임 ? ⑷ 사무승계자 ? 
⑸ 보수 · 비용 ? ⑹ 사채관리회사의 권한 ? 
⑺ 사채관리회사의 의무 · 책임 ? 
⑻ 둘 이상의 사채관리회사의 권한 · 의무 
2. 사채권자집회···························································································1254 
⑴ 의의 · 소집 · 구성 ? ⑵ 사채권자집회의 결의 ? 
⑶ 사채권자집회의 대표자 ? ⑷ 비용의 부담 
제 2 관 특수사채···································································································1258 
제 1 상법상의 특수사채························································································1259 
1. 전환사채···································································································1259 
⑴ 의 의 ? ⑵ 발 행 ? ⑶ 전환의 절차 ? ⑷ 전환의 효력 
2. 신주인수권부사채····················································································1267 
⑴ 개 념 ? ⑵ 발 행 ? ⑶ 양 도 ? ⑷ 행 사 
3. 이익참가부사채························································································1279 
⑴ 개 념 ? ⑵ 발 행 ? ⑶ 이익배당참가의 내용 
4. 교환사채···································································································1282 
⑴ 개 념 ? ⑵ 발 행 ? ⑶ 교환의 절차 
5. 상환사채···································································································1284 
⑴ 의 의 ? ⑵ 발 행 ? ⑶ 상환의 절차 
제 2 특별법상의 특수사채····················································································1285 
1. 담보부사채·······························································································1285 
⑴ 의 의 ? ⑵ 신탁계약 ? ⑶ 물상담보의 종류 ? 
⑷ 담보부사채의 발행 ? ⑸ 수탁회사 ? ⑹ 사채권자집회 
2. 파생결합사채···························································································1287 
⑴ 총 설 ? ⑵ 상법상 파생결합사채 ? 
⑶ 자본시장과 금융투자업에 관한 법률상 파생상품 
3. 조건부자본증권························································································1288 
⑴ 총 설 ? 
⑵ 전환형 조건부자본증권의 발행 및 주식으로의 전환 ? 
⑶ 상각형 조건부자본증권의 발행 및 채무재조정 
세부목차 lxxxiii 
4. 전자증권···································································································1291 
⑴ 총 설 ? ⑵ 전자등록의 적용대상 ? ⑶ 제도운영기관 ? 
⑷ 계좌의 개설 등 ? ⑸ 주식등의 전자등록 ? 
⑹ 전자등록주식등에 대한 권리행사 ? 
⑺ 전자등록의 안전성 확보 ? ⑻ 기 타 
제 9 절 조직변경 · 합병 및 분할 1298 
제 1 조직변경········································································································1298 
제 2 합 병·······································································································1299 
1. 총 설··································································································1299 
2. 합병계약의 내용······················································································1300 
⑴ 흡수합병의 합병계약서의 기재사항 ? 
⑵ 신설합병의 합병계약서의 기재사항 
3. 합병의 절차······························································································1304 
⑴ 합병계약서의 작성 ? ⑵ 합병계약서 등의 공시 ? 
⑶ 합병계약서의 승인 ? ⑷ 채권자보호절차 ? 
⑸ 주식병합 또는 회사설립의 절차 ? ⑹ 이사 · 감사(監事)의 임기 ? 
⑺ 보고총회 또는 창립총회의 소집 ? ⑻ 주권상장법인에 대한 특칙 ? 
⑼ 합병의 등기 ? ⑽ 합병에 관한 서류의 사후공시 
4. 합병의 무효······························································································1307 
제 3 분 할·······································································································1308 
제10절 해산과 청산 1308 
제 1 해 산·······································································································1308 
1. 해산원인···································································································1308 
2. 해산의 공시······························································································1309 
3. 회사의 계속······························································································1309 
4. 휴면회사의 해산······················································································1309 
제 2 청 산·······································································································1310 
1. 총 설··································································································1310 
2. 관할법원···································································································1310 
3. 청 산 인····································································································1310 
⑴ 의 의 ? ⑵ 선임 · 해임 ? ⑶ 직무권한 
4. 감사(監事) 또는 감사위원회의 감사보고서제출의무····························1313 
5. 청산의 종결······························································································1313 
⑴ 청산종결 후의 절차 ? ⑵ 휴면회사의 청산종결의제 
lxxxiv 세부목차 
제 7 장 유 한 회 사 
제 1 절 총 설 1315 
제 1 유한회사의 의의····························································································1315 
제 2 유한회사의 경제적 기능···············································································1316 
제 3 유한회사의 특색····························································································1317 
⑴ 자본단체성 ? ⑵ 소규모폐쇄성 
제 2 절 설 립 1318 
제 1 설립의 특색···································································································1318 
제 2 설립절차········································································································1319 
1. 정관의 작성······························································································1319 
2. 출자의 이행······························································································1319 
3. 이사 · 감사(監事)의 선임·········································································1320 
4. 설립등기···································································································1320 
제 3 설립의 하자(무효와 취소)············································································1320 
제 4 설립관여자의 책임························································································1320 
1. 사원의 현물출자 등의 부족재산가격 전보책임(변태설립사항)··············1321 
2. 사원과 이사 및 감사(監事)의 출자미필액 전보책임(출자불이행)·········1321 
제 3 절 사원의 지위 1322 
제 1 사원의 자격과 원수(員數)···········································································1322 
1. 사원의 자격······························································································1322 
2. 사원의 원수(員數)···················································································1322 
제 2 사원의 권리의무····························································································1322 
1. 사원의 권리······························································································1322 
2. 사원의 의무······························································································1323 
제 3 사원의 지분···································································································1323 
1. 지분의 의의······························································································1323 
2. 지분의 양도······························································································1324 
3. 지분의 입질······························································································1325 
4. 자기지분의 취득 및 질취의 제한····························································1325 
제 4 절 회사의 관리 1325 
제 1 총 설·······································································································1325 
제 2 사원총회········································································································1326 
세부목차 lxxxv 
1. 의 의··································································································1326 
2. 소 집··································································································1326 
⑴ 소집권자 ? ⑵ 소집절차 ? ⑶ 소집시기 
3. 의 결 권····································································································1327 
4. 의사(議事) · 결의·····················································································1328 
⑴ 의 사 ? ⑵ 결의요건 ? ⑶ 서면결의 
5. 결의의 하자······························································································1329 
제 3 이 사·······································································································1329 
1. 의 의··································································································1329 
2. 선임 · 해임································································································1330 
⑴ 선 임 ? ⑵ 해 임 
3. 권 한··································································································1330 
⑴ 업무집행권 ? ⑵ 대 표 권 
4. 의 무··································································································1331 
5. 책 임··································································································1331 
⑴ 손해배상책임 ? ⑵ 자본금 전보책임(자본금 충실책임) 
6. 사원의 이사에 대한 위법행위 유지청구권과 대표소송권·····················1332 
제 4 감사(監事)?검사인 및 감사인····································································1332 
1. 감 사··································································································1332 
2. 검 사 인····································································································1333 
3. (외부)감 사 인··························································································1333 
제 5 회사의 회계···································································································1333 
1. 총 설··································································································1333 
2. 재무제표···································································································1334 
⑴ 작성 · 제출 ? ⑵ 내 용 ? ⑶ 비치 · 공시 
3. 이익의 배당······························································································1334 
4. 기타의 경리문제······················································································1334 
제 5 절 정관의 변경(자본금의 증감) 1335 
제 1 총 설·······································································································1335 
제 2 자본금 증가···································································································1335 
1. 의 의··································································································1335 
2. 증자의 절차······························································································1336 
⑴ 사원총회의 특별결의 ? ⑵ 출자의 인수 ? ⑶ 출자의 이행 ? 
⑷ 증자의 등기 
lxxxvi 세부목차 
3. 증자에 관한 책임·····················································································1337 
⑴ 사원의 현물출자 등의 부족재산가격 전보책임(변태설립사항) ? 
⑵ 이사 및 감사(監事)의 자본금 충실책임 
4. 사후증자···································································································1338 
제 3 자본금 감소···································································································1338 
제 4 증자 · 감자의 무효·························································································1338 
제 6 절 합병과 조직변경 1339 
제 1 합 병·······································································································1339 
제 2 조직변경········································································································1339 
제 7 절 해산과 청산 1340 
제 1 해 산·······································································································1340 
제 2 청 산·······································································································1340 
제 8 장 외 국 회 사 
제 1 외국회사의 의의····························································································1341 
제 2 외국회사의 권리능력····················································································1342 
제 3 외국회사에 대한 감독규정···········································································1342 
1. 등 기··································································································1342 
2. 등기 전의 계속거래의 금지·····································································1343 
3. 대차대조표 등의 공고 의무·····································································1343 
4. 외국회사의 주권 또는 채권(債券)의 발행과 유통·································1344 
5. 영업소의 폐쇄와 청산·············································································1344 
제 9 장 벌 칙 
제 1 총 설·······································································································1345 
제 2 피처벌자········································································································1345 
1. 형벌규정이 적용되는 자··········································································1345 
2. 행정벌(과태료)이 적용되는 자································································1347 
제 3 제재의 종류···································································································1347 
1. 형 벌··································································································1347 
2. 행 정 벌····································································································1348 
제 4 가벌행위········································································································1348 
세부목차 lxxxvii 
1. 특별배임행위···························································································1348 
2. 회사재산을 위태롭게 하는 행위·····························································1349 
⑴ 부실보고 등의 행위 ? 
⑵ 부정한 자기주식(지분)의 취득 또는 질취(質取)행위 ? 
⑶ 법령 또는 정관에 위반한 이익의 배당행위 ? 
⑷ 투기에 의한 회사재산의 처분행위 
3. 자회사에 의한 모회사의 주식취득제한을 위반한 행위·························1350 
4. 주식 또는 사채의 모집 및 매출에 관한 부실문서의 행사·····················1350 
5. 납입가장행위···························································································1350 
6. 주식의 초과발행행위···············································································1351 
7. 증(贈) · 수뢰(收賂)행위···········································································1351 
⑴ 임원의 독직(瀆職)행위 ? 
⑵ 권리행사방해 등에 관한 증(贈) · 수뢰(收賂)행위 
8. 납입책임 면탈행위···················································································1352 
9. 주주의 권리행사에 관한 이익공여행위··················································1353 
10. 회사법상의 질서위반행위······································································1353 
색 인 
Ⅰ. 판례색인············································································································1355 
Ⅱ. 사항색인············································································································1355

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