000 | 00000nam c2200205 c 4500 | |

001 | 000045985474 | |

005 | 20190603171552 | |

007 | ta | |

008 | 190603s2019 ulk b 001c kor | |

020 | ▼a 9791130333465 ▼g 93360 | |

040 | ▼a 211009 ▼c 211009 ▼d 211009 | |

082 | 0 4 | ▼a 346.519066 ▼2 23 |

085 | ▼a 346.53066 ▼2 DDCK | |

090 | ▼a 346.53066 ▼b 2019z2 | |

100 | 1 | ▼a 이철송 ▼g 李哲松, ▼d 1948- ▼0 AUTH(211009)54468 |

245 | 1 0 | ▼a 會社法講義 / ▼d 李哲松 著 |

250 | ▼a 第27版 | |

260 | ▼a 서울 : ▼b 博英社, ▼c 2019 | |

300 | ▼a xxxvi, 1273 p. ; ▼c 26 cm | |

504 | ▼a 참고문헌(p. xxxi-xxxvi)과 색인수록 | |

945 | ▼a KLPA |

### 소장정보

No. | 소장처 | 청구기호 | 등록번호 | 도서상태 | 반납예정일 | 예약 | 서비스 |
---|---|---|---|---|---|---|---|

No. 1 | 소장처 중앙도서관/법학도서실(법학도서관 지하1층)/ | 청구기호 346.53066 2019z2 | 등록번호 111810541 | 도서상태 대출중 | 반납예정일 2021-02-15 | 예약 예약가능 | 서비스 |

### 컨텐츠정보

#### 책소개

제27판은 근년 들어 가장 큰 폭으로 수정.보완하여 개정하였다. 새로운 제도를 해설하였고, 아울러 작년에 나온 새로운 판례와 문헌들을 반영하고, 부족한 설명을 보완하였다.

**제27판 머리말**

이번 개정판은 근년 들어 가장 큰 폭으로 수정.보완된 것이다. 株券과 債券을 電子登錄으로 갈음할 수 있도록 하기 위해 2011년에 신설된 상법 제356조의2 및 제478조 제 3 항, 그리고 이 제도를 구체적으로 운영하기 위해 2016년 3월에 제정된 「주식.사채 등의 전자등록에 관한 법률」이 금년 9월 16일부터 시행되도록 시행령이 마련되었으므로 이 새로운 제도를 해설하기 위해서이다. 전자등록제의 시행으로 인한 회사법제의 변화는 매우 크다. 제도의 핵심은 주권과 채권의 역할을 전자등록으로 바꾼다는, 어찌 보면 간단한 내용이지만, 이 변화는 회사법 곳곳에 영향을 준다. 주식과 사채에 관한 제도는 과거 수백 년간 유체물인 주권과 채권의 발행을 전제로 운영되어 왔는데, 이 전제가 송두리째 사라지고 주식과 사채에 관한 권리의 공시방법이 근본적으로 달라지면서, 주식.사채의 발행.유통에 수반되는 모든 관련 제도에 변화가 생기기 때문이다. 물론 형식상으로는 전자등록제의 시행을 회사가 선택할 수 있지만, 상장증권에 관해서는 전자등록제의 채택이 강제되므로 전자등록은 사실상 주식과 사채의 주된 공시 및 관리방법이 되었다고 할 수 있다. 나아가 주식과 사채의 존재양식에 관한 우리의 관념에도 대전환을 요구하는 중요한 제도이므로 이번 개정판에서 전자등록에 관해 상당한 지면을 할애하여 해설하였다. 하지만 아직은 낯선 제도의 기초적인 설명에 그치고, 향후 실무계의 적응을 보아가며 이론을 보완해 나갈 계획이다.

그리고 2017년 10월에 「주식회사의 외부감사에 관한 법률」이 명칭의 변경과 더불어 전면개정되었는데, 동개정법이 2018년 11월 11일부터 시행되었다. 이 법률은 상법은 아니지만, 회사에 관련된 중요한 부속법률이므로 이 책에서도 해설하고 있다. 지난 판에서는 개정법의 해설을 시행이후로 미루어 놓았었는데, 이미 시행에 들어갔으므로 이번 판에서 달라진 내용을 소개하였다.

아울러 작년에 나온 새로운 판례와 문헌들을 반영하고, 부족한 설명을 보완한 것은 예년의 개정작업과 다름없다.

이번 개정작업에서는 수년전 한양대학교에서 법학석사과정을 마치고 군복무후 著者의 연구실에서 공부하고 있는 具滋一 君의 도움이 컸다. 著者의 원고에 있는 오류를 다 바로잡아 주고, 이 책에 인용된 다른 학자들의 문헌을 새것으로 교체하고, 인용과정에서 생긴 오류도 고쳐주었다. 이번 판에도 새로운 내용과 수정한 부분이 많아 원고가 늦어졌지만, 박영사의 金善敏 부장이 각별한 정성으로 편집해 준 덕에 새 학기에 맞추어 말끔한 모습의 책을 내놓을 수 있게 되었다.

늘 고마운 생각을 가지고 있다. 끝으로 우리나라의 法書界를 선도하며, 법학의 발전에 버팀목이 되어 주는 박영사의 安鍾萬 회장께 감사드린다.

2019년 2월

著者 識

정보제공 :

#### 저자소개

#### 목차

제 1 장 서 론 | 1 제 1 절 현대사회와 회사 ·····························································································3 제 2 절 기업조직의 형태와 회사 ···············································································4 1. 개인기업의 한계 5 2. 공동기업의 법적 형태 5 제 3 절 회사법의 성격 ·································································································6 Ⅰ. 회사법의 의의 ····························································································6 Ⅱ. 회사법의 특색 ····························································································7 1. 단체법적 성질 7 2. 거래법적 성질 8 제 4 절 회사법의 법원 ·································································································8 Ⅰ. 종 류 ·····································································································8 Ⅱ. 법원적용의 순서 ·······················································································10 Ⅲ. 상장회사 특례규정의 지위 ······································································10 1. 의 의 10 2. 우선적용의 의미 11 3. 소수주주권에 관한 특례의 성격 13 제 5 절 회사법의 역사 ·······························································································14 Ⅰ. 회사제도의 발달 ·······················································································14 1. 공동기업의 기원 14 2. 가족적 영속기업의 등장 14 3. 주식회사의 생성 15 4. 자본단체의 폐단과 반성 16 Ⅱ. 각국 회사법의 현황 ·················································································16 1. 독일법계 16 2. 프랑스법계 17 3. 영미법계 18 4. 유럽회사와 EU 가맹국의 회사법개정 20 Ⅲ. 우리나라 회사법의 형성과 발전 ·····························································24 1. 근대상법의 계수 24 2. 상법의 제정 25 3. 상법(회사편)의 개정 25 제 6 절 회사법의 기본과제 ·······················································································35 제 2 장 통 칙 | 39 제 1 절 회사의 개념 ····································································································41 Ⅰ. 사 단 성 ····································································································42 1. 재단과의 비교 42 2. 조합과의 비교 43 Ⅱ. 법 인 성 ····································································································44 Ⅲ. 영 리 성 ····································································································45 제 2 절 회사개념의 현대적 수정 ·············································································46 Ⅰ. 1인회사 ·····································································································46 1. 사단성의 입법적 수정 46 2. 1인회사의 법률관계 47 Ⅱ. 법인격부인론 ····························································································48 1. 유한책임의 남용과 규제 48 2. 법인격부인론의 법리적 근거 52 3. 적용요건 53 4. 적용범위 56 5. 법인격부인론의 확장(판례의 경향) 59 6. 부인효과 60 Ⅲ. 현대회사의 사회성(기업의 사회적 책임론) ···········································64 1. 의 의 64 2. 사회적 책임론의 발전 67 3. 우리나라의 동향 69 4. 사회적 책임론에 대한 비판 69 제 3 절 회사의 능력 ····································································································74 Ⅰ. 권리능력 ···································································································74 1. 성질에 의한 제한 74 2. 법령에 의한 제한 75 3. 목적에 의한 제한 76 Ⅱ. 의사능력과 행위능력 ···············································································81 Ⅲ. 불법행위능력 ····························································································81 제 4 절 회사의 종류 ····································································································82 Ⅰ. 인적회사와 물적회사 ···············································································82 Ⅱ. 상법전상의 분류 ·······················································································83 1. 분류의 기준(사원의 책임) 83 2. 회사별 특색 85 3. 이용실태 88 Ⅲ. 법원상의 분류 ··························································································89 Ⅳ. 민사회사·상사회사 ·················································································89 Ⅴ. 내국회사·외국회사·합작회사 ······························································90 Ⅵ. 공개회사·폐쇄회사 ·················································································90 Ⅶ. 상장법인·비상장법인 ·············································································91 Ⅷ. 소규모회사 ································································································92 제 5 절 회사설립의 일반론 ·······················································································93 Ⅰ. 설립에 관한 입법주의 ··············································································93 Ⅱ. 설립행위의 개념과 성질 ··········································································94 1. 학 설 95 2. 비 판 95 Ⅲ. 정관의 성질과 효력 ·················································································98 1. 정관의 의의와 성질 98 2. 정관의 효력 99 3. 정관의 작성 100 Ⅳ. 회사법상의 등기 ·····················································································100 1. 등기제도의 의의 100 2. 등기의 효력 101 3. 미등기의 효력 101 제 6 절 회사법상의 소 ·····························································································102 Ⅰ. 의 의 ·································································································102 Ⅱ. 회사법상의 소의 종류 ············································································102 1. 모든 회사에 공통되는 소송 102 2. 인적회사에 특유한 소송 103 3. 물적회사에 특유한 소송 103 Ⅲ. 소의 특색 ································································································105 1. 소의 성질 105 2. 제소권자의 제한 105 3. 소 절 차 106 4. 재량기각 107 5. 원고패소판결의 효력 109 6. 원고승소판결의 효력 110 Ⅳ. 회사소송에서의 가처분 ·········································································111 1. 의 의 111 2. 보전의 필요성 111 3. 회사가처분의 특성과 한계 114 4. 가처분결정의 회사에 대한 효력 116 제 7 절 합 병 ·······································································································118 Ⅰ. 의 의 ·································································································118 1. 합병의 법체계 118 2. 개념과 종류 118 3. 경제적 의의 119 Ⅱ. 합병의 본질론 ························································································120 Ⅲ. 합병과 합병계약 ·····················································································121 1. 학 설 122 2. 사 2 견 122 Ⅳ. 합병의 제한 ····························································································124 Ⅴ. 합병의 절차 ····························································································126 Ⅵ. 합병의 효과 ····························································································128 Ⅶ. 합병무효의 소 ························································································129 제 8 절 조직변경 ·······································································································131 Ⅰ. 의 의 ·································································································131 Ⅱ. 조직변경의 유형 ·····················································································132 Ⅲ. 각 회사의 조직변경 ···············································································133 Ⅳ. 조직변경의 효력발생 ·············································································135 Ⅴ. 조직변경의 무효 ·····················································································135 제 9 절 해산명령과 해산판결 ·················································································136 Ⅰ. 해산명령 ·································································································136 1. 의 의 136 2. 사 유 136 3. 절 차 138 4. 효 과 139 Ⅱ. 해산판결 ·································································································139 1. 의 의 139 2. 청구사유 140 3. 청구권자 141 4. 절 차 141 제10절 회사의 계속 ··································································································142 Ⅰ. 의 의 ·································································································142 Ⅱ. 계속이 가능한 해산사유 ········································································142 1. 합명회사 142 2. 합자회사 143 3. 유한책임회사 143 4. 주식회사 143 5. 유한회사 144 Ⅲ. 회사계속의 가능시기 ·············································································144 Ⅳ. 계속등기 ·································································································144 Ⅴ. 계속의 효과 ····························································································145 제 3 장 합명회사 | 147 제 1 절 총 설 ·······································································································149 Ⅰ. 연 혁 ·································································································149 Ⅱ. 특 색 ·································································································150 Ⅲ. 법률관계의 구조 ·····················································································150 제 2 절 회사의 설립 ··································································································151 Ⅰ. 설립상의 특색 ························································································151 Ⅱ. 설립절차 ·································································································152 1. 정관작성 152 2. 설립등기 153 Ⅲ. 설립의 취소와 무효 ···············································································153 1. 설립의 취소 153 2. 설립의 무효 154 3. 채권자에 의한 설립취소의 소 155 제 3 절 내부관계 ·······································································································155 Ⅰ. 법률관계의 성격과 법규범 ····································································155 Ⅱ. 출 자 ·································································································156 Ⅲ. 업무집행 ·································································································157 Ⅳ. 의사결정 ·································································································160 Ⅴ. 회사와 사원의 이익충돌방지 ································································161 Ⅵ. 손익분배 ·································································································162 Ⅶ. 정관의 변경 ····························································································163 Ⅷ. 지분 및 사원의 변동 ··············································································164 1. 개 설 164 2. 입 6 사 164 3. 지분의 양도 165 4. 지분의 상속 166 5. 퇴 사 166 6. 지분의 압류와 입질 171 제 4 절 외부관계 ·······································································································172 Ⅰ. 회사의 대표 ····························································································172 Ⅱ. 사원의 책임 ····························································································174 제 5 절 해산과 청산 ··································································································177 Ⅰ. 해 산 ·································································································177 Ⅱ. 청 산 ·································································································177 1. 의 의 177 2. 임의청산 178 3. 법정청산 179 제 4 장 합자회사 | 183 제 1 절 총 설 ·······································································································185 Ⅰ. 연 혁 ·································································································185 Ⅱ. 특 색 ·································································································186 제 2 절 회사의 설립 ··································································································186 제 3 절 내부관계 ·······································································································187 Ⅰ. 출 자 ·································································································187 Ⅱ. 업무집행·감시 ·······················································································187 Ⅲ. 경업·자기거래의 제한 ··········································································189 Ⅳ. 손익의 분배 ····························································································189 Ⅴ. 지분의 양도, 사원의 변동 ·····································································189 제 4 절 외부관계 ·······································································································191 1. 회사의 대표 191 2. 유한책임사원의 책임 192 3. 책임의 변경 193 제 5 절 회사의 해산 및 계속 ··················································································193 제 6 절 회사의 청산 ··································································································194 제 5 장 유한책임회사 | 195 제 1 절 총 설 ·······································································································197 Ⅰ. 의 의 ································································································197 Ⅱ. 법률관계의 구조와 특색 ······································································198 제 2 절 회사의 설립 ··································································································199 Ⅰ. 설립상의 특색 ·······················································································199 Ⅱ. 설립절차 ································································································199 Ⅲ. 설립의 취소·무효 ················································································200 제 3 절 내부관계 ·······································································································201 Ⅰ. 내부관계의 특색 ···················································································201 Ⅱ. 업무집행 ································································································201 1. 유한책임회사의 업무집행 방법론 201 2. 업무집행자의 선임 202 3. 사원운영회사의 가능성 203 4. 수인의 업무집행방법 203 5. 법인인 업무집행자 203 6. 직무대행자 204 7. 업무집행자의 권한상실선고 204 8. 회사와 업무집행자의 이익충돌방지 204 9. 사원의 감시권 205 10. 업무집행자의 책임 205 Ⅲ. 의사결정 ·································································································205 1. 결정방법 205 2. 의결권의 배분 206 3. 의사결정기구 206 Ⅳ. 정관변경 ································································································207 Ⅴ. 회 계 ································································································207 1. 자 본 금 207 2. 재무제표의 작성과 보존 208 3. 잉여금의 분배 208 Ⅵ. 사원 및 지분의 변동 ·············································································209 1. 입 사 209 2. 지분의 양도 209 3. 자기지분의 취득금지 210 4. 퇴 1사 210 5. 지분의 상속 212 제 4 절 외부관계 ·······································································································212 Ⅰ. 회사의 대표 ···························································································212 Ⅱ. 사원의 책임 ···························································································213 제 5 절 해산과 청산 ··································································································213 제 6 장 주식회사 | 215 제 1 절 주식회사의 의의와 본질 ···········································································217 Ⅰ. 자 본 금 ··································································································218 1. 의 의 218 2. 자본금의 3원칙 218 Ⅱ. 주 식 ·································································································220 Ⅲ. 주주의 유한책임 ·····················································································221 1. 의 의 221 2. 기 능 222 3. 정당성의 근거 223 제 2 절 설 립 ·······································································································224 제 1 관 총 설 ·································································································224 Ⅰ. 설립절차의 특색 ·····················································································224 Ⅱ. 설립절차의 개관 ·····················································································225 Ⅲ. 발 기 인 ··································································································227 1. 의 의 227 2. 발기인의 자격과 수 228 3. 발기인조합 228 4. 발기인의 의사결정방법 229 Ⅳ. 설립중의 회사 ························································································229 1. 의 의 229 2. 성 질 230 3. 성립시기 231 4. 설립중의 회사의 법률관계 233 제 2 관 정관의 작성 ···························································································235 Ⅰ. 절대적 기재사항과 수권자본제 ····························································236 1. 절대적 기재사항 236 2. 수권자본제 241 Ⅱ. 상대적 기재사항 ·····················································································242 1. 변태설립사항 242 2. 기타의 상대적 기재사항 248 Ⅲ. 정관의 효력발생 ·····················································································248 제 3 관 자본금과 기관의 구성 ··········································································249 Ⅰ. 주식발행사항의 결정 ·············································································249 Ⅱ. 발기설립 ·································································································250 1. 발기인의 주식인수 250 2. 출자의 이행 251 3. 임원의 선임 251 4. 설립경과의 조사 252 5. 변태설립사항의 조사 252 6. 대표이사의 선임 255 Ⅲ. 모집설립 ·································································································255 1. 발기인의 주식인수 255 2. 주주의 모집 255 3. 주식의 인수 256 4. 출자의 이행 259 5. 창립총회 260 6. 대표이사의 선임 262 제 4 관 설립등기 ·································································································262 Ⅰ. 의 의 ·································································································262 Ⅱ. 등기시기 ·································································································262 Ⅲ. 등기사항 ·································································································263 Ⅳ. 설립등기의 효과 ·····················································································264 제 5 관 가장납입(가장설립) ··············································································264 제 6 관 설립에 관한 책임 ··················································································267 Ⅰ. 서 언 ·································································································267 Ⅱ. 발기인의 책임 ························································································268 1. 회사성립의 경우 268 2. 회사불성립의 경우 272 Ⅲ. 기타 설립관계자의 책임 ········································································274 Ⅳ. 유사발기인의 책임 ·················································································274 제 7 관 설립의 무효 ···························································································275 Ⅰ. 원 인 ·································································································275 Ⅱ. 무효의 소 ································································································276 제 3 절 주식과 주주 ··································································································277 제 1 관 주 식 ·································································································277 Ⅰ. 주식의 개념 ····························································································277 Ⅱ. 주식의 본질(사원권) ··············································································278 Ⅲ. 주식과 자본금(액면주식과 무액면주식) ··············································279 1. 의 의 279 2. 무액면주식의 기능 279 3. 무액면주식의 발행 281 4. 액면주식과 무액면주식의 전환 281 Ⅳ. 종류주식 ·································································································284 1. 개 설 284 2. 이익배당에 관한 종류주식 288 3. 의결권제한에 관한 종류주식 291 4. 주식의 상환에 관한 종류주식 296 5. 주식의 전환에 관한 종류주식 302 제 2 관 주주·주주권 ·························································································311 Ⅰ. 의 의 ·································································································311 Ⅱ. 주주의 권리 ····························································································311 1. 의 의 311 2. 권리의 근거와 제한 312 3. 권리의 분류 312 Ⅲ. 주식평등의 원칙(주주의 비례적 이익) ················································316 1. 절대적 평등과 비례적 평등 316 2. 근 거 316 3. 내용과 예외 319 Ⅳ. 주주의 의무 ····························································································319 1. 출자의무 319 2. 지배주주의 책임 320 Ⅴ. 주식불가분과 주식의 공유 ····································································322 Ⅵ. 타인명의에 의한 주식인수의 법률관계 ···············································323 1. 총 설 323 2. 납입의무 324 3. 주주의 확정 324 제 3 관 주식의 유체적 관리(주권 또는 전자등록과 주주명부) ··················325 Ⅰ. 관리체계 ·································································································325 Ⅱ. 주 권 ·································································································326 1. 의 의 326 2. 주권의 성질 327 3. 주권의 발행 329 4. 주권의 효력발생시기 330 5. 주권의 불소지제도 331 6. 주권의 실효 335 Ⅲ. 주식의 전자등록 ·····················································································339 1. 의 의 339 2. 전자등록의 관리구조 340 3. 전자등록제도의 채택 342 4. 계좌개설 344 5. 전자등록된 주식의 권리변동 346 6. 전자등록의 효력 348 7. 주식의 권리행사 348 Ⅳ. 주주명부(주식의 관리) ··········································································350 1. 의 의 350 2. 비치ㆍ공시 351 3. 기재사항 351 4. 주주명부의 효력 352 5. 주주명부의 폐쇄와 기준일 354 6. 전자주주명부 358 7. 실질주주명부 360 제 4 관 주주권의 변동 ·······················································································360 Ⅰ. 주주권변동의 원인 ·················································································360 Ⅱ. 주식의 양도 ····························································································362 1. 주식양도의 개념 362 2. 주식의 양도성 363 3. 주식의 양도방법 364 4. 명의개서(주식양도의 대항요건) 367 5. 명의개서미필주주의 지위 372 6. 주권의 선의취득 378 Ⅲ. 정관에 의한 주식양도의 제한 ·······························································381 Ⅳ. 주주간의 양도제한 약정 ········································································393 Ⅴ. 법령에 의한 주식양도의 제한 ·······························································395 1. 권리주의 양도제한 395 2. 주권발행전주식의 양도제한 396 3. 자기주식취득의 제한 401 4. 상호주소유의 규제 422 5. 특별법상의 주식거래제한 435 6. 주식취득의 통지의무 437 Ⅵ. 주식의 담보·대차 ·················································································440 1. 서 설 440 2. 입 4질 440 3. 주식의 양도담보 446 4. 주식담보의 특수문제 448 Ⅶ. 주식의 소각·분할·병합 ······································································449 1. 총 설 449 2. 주식의 소각 449 3. 주식의 분할 455 4. 주식의 병합 458 제 5 관 자본시장(증권시장) ··············································································459 Ⅰ. 서 설 ·································································································459 Ⅱ. 발행시장 ·································································································461 Ⅲ. 유통시장 ·································································································463 Ⅳ. 유통거래상의 특수문제 ·········································································464 1. 총 설 464 2. 예탁결제(특수한 교부)와 실질주주 464 3. 내부자거래의 제한 470 Ⅴ. 경영권의 경쟁 ························································································482 1. 경영권분쟁의 배경 482 2. 기업매수관련 규정 483 3. 경영권방어의 법리 484 제 4 절 주식회사의 기관 ·························································································488 제 1 관 기관의 구조 ···························································································488 Ⅰ. 기관의 의의와 분화 ···············································································488 Ⅱ. 기관구성의 논리 ·····················································································489 1. 소유와 경영의 분리 489 2. 주주의 보호와 경영통제 492 3. 기관운영의 이상 493 Ⅲ. 의사결정의 논리 ·····················································································493 제 2 관 현대주식회사의 지배구조 ···································································494 Ⅰ. 지배요건의 완화경향 ·············································································495 Ⅱ. 경영자지배론 ··························································································495 Ⅲ. 우리나라 회사의 지배구조 ····································································497 제 3 관 주주총회 ·································································································500 Ⅰ. 의 의 ·································································································500 Ⅱ. 주주총회의 권한 ·····················································································502 1. 상법상의 권한 502 2. 특별법상의 권한 503 3. 정관에 의한 권한 확장 503 4. 주주의 권한행사와 책임 504 5. 권한의 전속성 505 Ⅲ. 회의의 소집 ····························································································506 1. 소집의 결정 506 2. 주주총회의 시기 510 3. 소집의 통지 511 4. 회의일시ㆍ소집장소 515 5. 회의의 목적사항 517 6. 주주제안권 518 7. 소집절차상의 하자의 치유 524 8. 소집의 철회ㆍ변경 526 9. 연기와 속행 527 10. 검사인의 선임 528 Ⅳ. 의 결 권 ··································································································531 1. 의결권의 귀속 531 2. 의결권의 수 533 3. 의결권 없는 주식 535 4. 의결권의 일시적 제한 535 5. 의결권의 행사절차ㆍ방법 540 6. 의결권의 불통일행사 540 7. 의결권의 대리행사 및 대리행사의 권유 542 8. 의결권행사에 관한 거래 553 Ⅴ. 의사진행 ·································································································557 1. 의사의 방법과 공정질서 557 2. 의 장 558 3. 주주질문권, 임원의 설명의무 560 Ⅵ. 결 의 ·································································································562 1. 의 의 562 2. 결의의 법적 성질 562 3. 결의의 요건 565 4. 출석주주의 결의방법 570 5. 서면투표 572 6. 전자투표 574 7. 소규모회사의 서면결의와 전원동의 576 8. 정족수와 의결권의 계산 577 9. 다수결의 역기능과 시정 581 10. 의 사 록 583 11. 결의의 성립 및 효력발생시기 585 Ⅶ. 주요 특별결의사항 ·················································································585 1. 영업의 양도와 양수 586 2. 중요재산의 처분 589 3. 영업의 임대 등 593 4. 간이영업양도 등의 특례 594 5. 사후설립 595 Ⅷ. 반대주주의 주식매수청구권 ··································································597 1. 의 7 의 597 2. 이론적 근거 597 3. 요 9 건 599 4. 주주의 반대절차 601 5. 매수청구 602 6. 매수가격의 결정 603 7. 매수의 효력발생 606 8. 매수주식의 처분 607 9. 채권자의 보호 607 Ⅸ. 주주총회결의의 하자 ·············································································607 1. 총 7설 607 2. 결의취소의 소 610 3. 결의무효확인의 소 621 4. 결의부존재확인의 소 626 5. 소절차와 판결 634 6. 부당결의취소ㆍ변경의 소 641 7. 소의 종류와 소송물 642 8. 다른 소송과의 관계 644 9. 번복결의ㆍ추인결의 644 10. 결의존재의 확인(소극결의의 부정) 646 Ⅹ. 결의결여의 효력 ·····················································································647 1. 원 칙 647 2. 무효주장의 제한 648 ㆍ. 종류주주총회 ··························································································649 1. 취 지 649 2. 종류주주총회의 결의가 필요한 경우 649 3. 결의의 요건 652 4. 소집과 운영 652 5. 결의의 하자 652 6. 종류주주총회 흠결의 효과 653 제 4 관 이사·이사회·대표이사 ······································································655 Ⅰ. 서 언 ·································································································655 Ⅱ. 이 사 ·································································································655 1. 의 의 655 2. 이사의 선임과 퇴임 657 3. 이사의 보수 677 4. 주식매수선택권 685 Ⅲ. 이 사 회 ··································································································694 1. 의 의 694 2. 이사회의 권한 694 3. 이사회의 독립성 699 4. 이사회의 소집 700 5. 이사회의 결의 702 6. 이사회의 의사록과 공시 708 7. 이사회결의의 하자 711 8. 이사회 내 위원회 713 Ⅳ. 대표이사 ·································································································716 1. 의 의 716 2. 선정과 퇴임 717 3. 대표이사의 업무집행권 720 4. 대 표 권 721 5. 대표이사의 불법행위 728 6. 공동대표이사제도 729 7. 표현대표이사 735 Ⅴ. 소규모회사의 관리구조 ·········································································743 1. 의 의 743 2. 소규모회사제도의 채택절차 744 3. 대표권의 귀속 744 4. 이사회의 기능대체 744 5. 감사의 기능대체 745 Ⅵ. 이사의 의무 ····························································································746 1. 선관의무 746 2. 이사의 감시의무 747 3. 이사회출석의무 751 4. 기업비밀준수의무 752 5. 충실의무 755 6. 의무와 책임의 독자성 759 Ⅶ. 이사와 회사의 이익충돌방지 ································································761 1. 제도의 의의 761 2. 경업금지 761 3. 회사기회의 유용금지 767 4. 이사 등의 자기거래 774 Ⅷ. 이사의 책임 ····························································································786 1. 경영구조와 이사책임의 의의 786 2. 회사에 대한 손해배상책임 786 3. 제 3 자에 대한 책임 810 4. 업무집행관여자의 책임 817 Ⅸ. 이사의 견제와 책임추궁 ········································································825 1. 개 설 825 2. 유지청구권 825 3. 대표소송 830 Ⅹ. 직무집행정지 및 직무대행자 ································································840 1. 의 의 840 2. 직무집행정지가처분 841 3. 직무대행자 844 4. 기타 지위에의 준용 847 ㆍ. 집행임원 ·································································································847 제 5 관 감사제도 ·································································································858 Ⅰ. 개 설 ·································································································858 Ⅱ. 감 사 ·································································································859 1. 의 의 859 2. 선임 및 종임 860 3. 겸직제한 863 4. 감사와 회사의 관계 863 5. 감사의 직무ㆍ권한 864 6. 감사의 의무 872 7. 감사의 책임 873 Ⅲ. 감사위원회 ······························································································876 1. 의 의 876 2. 설치근거와 구성 877 3. 감사위원회의 운영 879 4. 감사위원회의 권한과 의무 879 5. 감사위원의 책임 880 Ⅳ. 외부감사제도 ··························································································881 1. 취 지 881 2. 적용대상 881 3. 감사인의 자격 881 4. 감사인의 선임 881 5. 감사인의 서류열람 및 업무ㆍ재산상태조사권 882 6. 감사인의 의무 882 7. 감사인의 감독 883 8. 감사인의 손해배상책임 883 Ⅴ. 검 사 인 ··································································································885 제 6 관 준법통제 ·································································································887 Ⅰ. 의 7의 ·································································································887 Ⅱ. 준법통제기준 ··························································································887 Ⅲ. 준법지원인 ······························································································888 제 5 절 자본금의 변동 ·····························································································890 제 1 관 서 설 ·································································································890 Ⅰ. 자본금변동의 법적 의의 ········································································890 1. 액면주식을 발행하는 회사 890 2. 무액면주식을 발행하는 회사 891 Ⅱ. 자본금의 변동과 주식·재산과의 관계 ················································892 1. 신주발행의 경우 892 2. 자본금감소의 경우 894 3. 자본금에 영향 없는 주식ㆍ재산의 감소 894 제 2 관 신주발행 ·································································································894 Ⅰ. 의 의 ·································································································894 1. 개 념 894 2. 자본조달방법으로서의 신주발행 895 3. 신주발행의 중요문제 895 Ⅱ. 신주발행사항의 결정 ·············································································896 1. 결정기관 896 2. 결정사항 896 Ⅲ. 발행가액 ·································································································898 1. 액면미달발행 898 2. 시가발행 899 Ⅳ. 신주인수권 ······························································································900 1. 의 의 900 2. 주주의 신주인수권 901 3. 제 3 자의 신주인수 907 4. 신주인수권의 침해 913 5. 구체적 신주인수권의 양도 914 6. 신주인수권증서 916 Ⅴ. 신주발행의 절차 ·····················································································919 Ⅵ. 신주발행의 효력발생 ·············································································928 Ⅶ. 이사의 자본충실책임 ·············································································928 Ⅷ. 신주발행유지청구권 ··············································································929 Ⅸ. 불공정한 가액으로 인수한 자의 책임 ··················································932 1. 취 지 932 2. 책임발생의 요건 933 3. 적용범위 933 4. 인수인의 책임 934 Ⅹ. 신주발행무효의 소 ·················································································935 1. 총 설 935 2. 무효원인 935 3. 타소송과의 관계 940 4. 당 사 자 940 5. 제소기간 941 6. 소 절 차 941 7. 무효판결의 효과 941 8. 원고패소판결의 효과 943 ㆍ4. 신주발행의 부존재 ·················································································943 ㆍ. 인수행위의 하자와 주장 ········································································945 제 3 관 자본금의 감소 ·······················································································946 Ⅰ. 의 의 ·································································································946 Ⅱ. 감자의 구분 ····························································································947 1. 실질감자와 명목감자 947 차 례 xxi 2. 결손보전감자와 통상의 감자 948 Ⅲ. 자본금감소의 방법 ·················································································949 1. 액면주식을 발행한 경우 949 2. 무액면주식을 발행한 경우 951 Ⅳ. 자본금감소의 절차 ·················································································952 Ⅴ. 자본금감소의 부수적 효과 ····································································957 Ⅵ. 감자무효의 소 ························································································957 제 6 절 정관의 변경 ··································································································960 Ⅰ. 총 설 ·································································································960 Ⅱ. 정관변경의 절차 ·····················································································961 Ⅲ. 정관변경의 한계 ·····················································································962 Ⅳ. 정관변경의 효력발생 ·············································································963 제 7 절 회사의 회계 ··································································································964 제 1 관 회사회계의 논리 ···················································································964 Ⅰ. 총 설 ·································································································964 Ⅱ. 「회사의 회계」의 목적과 기능 ······························································966 Ⅲ. 상법상 회계규정의 체계 ········································································967 Ⅳ. 계산구조(손익계산주의) ········································································968 Ⅴ. 회계의 원칙 ····························································································969 제 2 관 재무제표 및 영업보고서 ······································································970 Ⅰ. 재무제표의 의의와 종류 ········································································970 1. 대차대조표(재무상태표) 970 2. 손익계산서 971 3. 기타의 재무제표 971 4. 연결재무제표 972 5. 재무제표부속명세서 973 Ⅱ. 영업보고서 ······························································································973 Ⅲ. 재무제표의 승인절차 ·············································································974 1. 재무제표 등의 작성 974 2. 감 사 975 3. 재무제표의 비치ㆍ공시 977 4. 재무제표의 승인 977 5. 승인에 의한 책임해제 978 제 3 관 준 비 금 ··································································································982 Ⅰ. 개 설 ·································································································982 Ⅱ. 법정준비금의 적립 ·················································································983 1. 이익준비금 983 2. 자본준비금 984 3. 합병ㆍ3분할에 의한 자본준비금의 승계 984 Ⅲ. 법정준비금의 사용 ·················································································985 1. 결손의 보전 985 2. 자본전입 985 Ⅳ. 법정준비금의 감소 ·················································································989 1. 의 의 989 2. 요 건 989 3. 절 차 990 4. 결손보전의 병행 991 5. 준비금감소의 무효 991 제 4 관 이익배당 ·································································································992 Ⅰ. 개 설 ·································································································992 Ⅱ. 정기배당 ·································································································993 1. 이익배당의 요건(배당가능이익) 993 2. 배당의안의 독립성 994 3. 이익배당의 결정기관 994 4. 현물배당 995 Ⅲ. 중간배당 ·································································································998 1. 중간배당의 요건 998 2. 배당의 제한 1000 3. 이사의 책임 1000 4. 주주의 반환의무 1002 5. 기타의 법률관계 1003 Ⅳ. 이익배당청구권 ···················································································· 1003 Ⅴ. 이익배당의 기준 ··················································································· 1005 Ⅵ. 배당금지급시기와 시효 ······································································· 1006 Ⅶ. 주식배당 ······························································································· 1007 1. 주식배당의 개념과 성질 1007 2. 주식배당의 요건 1010 3. 주식배당의 절차 1011 4. 주식배당의 효과 1013 Ⅷ. 위법배당의 효과 ··················································································· 1014 1. 총 설 1014 2. 금전배당(또는 현물배당)의 위법 1014 3. 주식배당의 위법 1017 4. 이사 등의 책임과 벌칙 1017 제 5 관 재무제표 등의 공시와 주주·채권자의 권리 ································· 1017 Ⅰ. 서 설 ······························································································· 1017 Ⅱ. 공시제도 ······························································································· 1018 Ⅲ. 재무관련 소수주주권 ··········································································· 1021 1. 주주의 회계장부열람권 1021 2. 검사인선임청구권 1026 제 6 관 주주권행사와 관련한 이익공여금지 ··············································· 1027 Ⅰ. 입법취지 ······························································································· 1027 Ⅱ. 금지내용 ······························································································· 1027 Ⅲ. 위반의 효과 ·························································································· 1030 Ⅳ. 증명책임의 전환 ··················································································· 1031 제 7 관 사용인의 우선변제권 ········································································· 1032 제 8 절 사 채 ····································································································· 1032 Ⅰ. 의 의 ······························································································· 1032 1. 사채의 의의 1032 2. 경제적 의의 1033 3. 주식과 사채의 비교 1034 Ⅱ. 사채계약의 성질 ··················································································· 1035 Ⅲ. 사채발행의 방법 ··················································································· 1036 Ⅳ. 사채발행의 절차 ··················································································· 1038 Ⅴ. 사채의 유통 ·························································································· 1040 Ⅵ. 사채의 원리금상환 ··············································································· 1042 1. 이자와 이권 1042 2. 사채의 상환 1043 3. 시 효 1045 Ⅶ. 사채 관련 기구 ···················································································· 1046 1. 사채관리회사 1046 2. 사채권자집회 1051 3. 사채관리 관련자의 보수ㆍ비용 1055 Ⅷ. 특수한 사채 ·························································································· 1056 1. 전환사채 1056 2. 신주인수권부사채 1067 3. 기타 특수사채 1074 제 9 절 해산과 청산 ································································································ 1083 Ⅰ. 해 산 ······························································································· 1083 1. 해산사유 1083 2. 휴면회사의 해산의제 1083 3. 해산의 공시 1084 4. 해산의 효과 1085 5. 회사의 계속 1085 Ⅱ. 청 산 ······························································································· 1085 1. 총 설 1085 2. 청산회사의 권리능력 1086 3. 청 산 인 1086 4. 청산인회ㆍ대표청산인 1087 5. 청산인의 직무 1088 6. 청산의 종결 1090 제10절 회사의 조직개편 ······················································································· 1091 제 1 관 총 설 ······························································································· 1091 제 2 관 합 병 ······························································································· 1092 Ⅰ. 합병과 분할의 기능적 상관성 ····························································· 1092 Ⅱ. 절 차 ······························································································· 1093 1. 합병계약서의 작성 1093 2. 합병계약서의 공시 1103 3. 합병승인결의 1103 4. 주식매수청구 1104 5. 채권자보호절차 1104 6. 주식의 병합과 주권의 제출 1104 7. 총회의 개최 1104 8. 주식ㆍ유한회사 합병에 관한 특칙 1105 9. 등 기 1105 10. 임원의 임기 1106 11. 사후공시 1106 12. 질권의 효력 1106 Ⅲ. 특수절차(간이합병과 소규모합병) ····················································· 1106 1. 간이합병 1107 2. 소규모합병 1108 Ⅳ. 합병의 공정성과 주주의 보호 ····························································· 1110 1. 합병에 관한 주주의 이해의 본질 1110 2. 합병절차상의 주주보호제도 1112 차 례 xxv 3. 합병비율의 불공정과 합병무효 1112 4. 공정성의 판단기준 1114 5. 합병비율에 관한 이사의 주의의무 1116 Ⅴ. 합병무효의 소 ······················································································ 1117 제 3 관 회사분할 ······························································································· 1118 Ⅰ. 의 의 ······························································································· 1118 Ⅱ. 분할의 방법 ·························································································· 1119 1. 분할방법의 개관 1119 2. 단순분할 1120 3. 분할합병 1122 4. 단순분할과 분할합병의 병용 1125 5. 물적 분할 1125 6. 해산회사의 분할 제한 1126 Ⅲ. 분할의 성질 ·························································································· 1128 1. 분할회사에서의 분할의 성질 1128 2. 분할합병의 상대방회사에서의 분할의 성질 1128 3. 분할의 대상 1129 4. 존속분할ㆍ영업의 현물출자ㆍ물적분할의 구별 1129 Ⅳ. 분할절차 ······························································································· 1131 1. 분할의 의사결정(공통절차) 1132 2. 단순분할절차 1133 3. 분할합병절차 1141 4. 채권자보호절차 1146 5. 주식매수청구권 1148 6. 물적분할절차 1148 Ⅴ. 분할의 등기(효력발생시기) ································································ 1149 Ⅵ. 분할의 공시 ·························································································· 1150 Ⅶ. 분할의 효과 ·························································································· 1151 1. 법인격에 관한 효과 1151 2. 권리와 의무의 이전 1151 3. 주식의 귀속 1153 4. 이사, 감사의 선임 및 정관변경의 효과 1153 5. 분할회사의 채무의 승계와 책임 1153 6. 질권자의 권리 1162 Ⅷ. 분할의 무효 ·························································································· 1162 1. 무효의 원인 1163 2. 소의 성질 1163 3. 제소권자 1163 4. 피 고 1163 5. 기타 절차 1163 6. 무효판결의 효력 1164 제 4 관 주식의 포괄적 교환과 포괄적 이전 ················································ 1165 Ⅰ. 총 설 ······························································································· 1165 1. 입법배경 1165 2. 효 용 1167 3. 입 법 례 1169 4. 법적 구성 1169 Ⅱ. 주식의 포괄적 교환 ············································································· 1170 1. 의 의 1170 2. 절 차 1171 3. 주식의 이전과 신주발행 1176 4. 반대주주의 주식매수청구권 1179 5. 특수절차(간이교환과 소규모교환) 1180 6. 주식교환의 효과 1181 7. 주식교환무효의 소 1183 Ⅲ. 주식의 포괄적 이전 ············································································· 1185 1. 의 의 1185 2. 절 차 1185 3. 공동의 주식이전 1188 4. 모회사설립과 주식이전 1188 5. 반대주주의 주식매수청구권 1190 6. 주식이전의 효과 1190 7. 주식이전무효의 소 1190 제 5 관 주식의 강제매도·매수 청구 ··························································· 1191 Ⅰ. 의 의 ······························································································· 1191 Ⅱ. 지배주주의 매도청구 ·········································································· 1193 1. 매도청구의 요건 1193 2. 매도청구의 상대방과 평등의 원칙 1195 3. 공시와 매도청구 1195 4. 소수주주의 매도의무 1196 5. 매도가격의 결정 1197 Ⅲ. 소수주주의 매수청구 ·········································································· 1197 Ⅳ. 주식의 이전시기 ················································································· 1198 제 7 장 유한회사 | 1199 제 1 절 서 론 ····································································································· 1201 제 2 절 회사의 설립 ································································································ 1202 Ⅰ. 설립절차 ······························································································· 1202 1. 총 설 1202 2. 정 관 1203 3. 이사ㆍ감사의 선임 1204 4. 출자의 이행 1204 5. 설립등기 1204 Ⅱ. 설립에 관한 책임 ················································································· 1204 Ⅲ. 설립의 무효와 취소 ············································································· 1205 제 3 절 사원 및 지분 ······························································································ 1205 Ⅰ. 사 원 ······························································································· 1205 1. 사원의 권리 1205 2. 사원의 의무 1206 Ⅱ. 지 분 ······························································································· 1206 1. 의 의 1206 2. 지분의 양도 1206 3. 지분의 입질 1208 4. 자기지분취득의 제한 1208 제 4 절 회사의 관리 ································································································ 1208 제 1 관 회사의 기관 ························································································ 1208 Ⅰ. 이 사 ······························································································· 1208 1. 선임ㆍ퇴임 1209 2. 업무집행 1209 3. 회사의 대표 1209 4. 의 무 1210 5. 책 2 임 1210 6. 준용규정 1210 Ⅱ. 감사 및 감시제도 ················································································· 1211 1. 감 사 1211 2. 검 사 인 1211 3. 기타 감시제도 1212 Ⅲ. 사원총회 ······························································································· 1212 1. 총 설 1212 2. 권 한 1212 3. 소 집 1213 4. 의ㆍ결ㆍ권 1213 5. 결의방법 1213 6. 서면결의 1214 7. 준용규정 1214 제 2 관 회사의 회계 ························································································· 1214 Ⅰ. 총 설 ······························································································· 1214 Ⅱ. 유한회사의 재무제표 ··········································································· 1215 Ⅲ. 주식회사계산규정 중 준용되는 것 ····················································· 1215 Ⅳ. 주식회사계산규정 중 준용되지 않는 것 ············································ 1215 Ⅴ. 유한회사의 계산에 관한 특칙 ····························································· 1216 제 5 절 정관의 변경 ································································································ 1216 Ⅰ. 총 설 ······························································································· 1216 Ⅱ. 자본금의 증가 ······················································································ 1216 Ⅲ. 자본금의 감소 ······················································································ 1218 Ⅳ. 증자·감자의 무효 ··············································································· 1219 제 6 절 합병과 조직변경 ······················································································· 1219 Ⅰ. 합 병 ······························································································· 1219 Ⅱ. 조직변경 ······························································································· 1220 1. 유한회사에서 주식회사로 1220 2. 주식회사에서 유한회사로 1221 제 7 절 해산과 청산 ································································································ 1222 Ⅰ. 해 산 ······························································································· 1222 Ⅱ. 청 산 ······························································································· 1222 제 8 장 외국회사 | 1223 Ⅰ. 외국회사의 의의와 본질 ······································································ 1225 Ⅱ. 외국회사의 법률관계 ··········································································· 1226 1. 외국회사의 지위 1226 2. 국내영업의 요건 1227 3. 증권의 법률관계 1227 4. 대차대조표의 공고 1228 5. 영업소의 폐쇄 1229 제 9 장 벌 칙 | 1231 Ⅰ. 총 설 ······························································································· 1233 Ⅱ. 일반원칙 ······························································································· 1233 Ⅲ. 형 사 범 ······························································································· 1235 Ⅳ. 행 정 범 ······························································································· 1240 판례색인 ··········································································· 1245 우리말색인 ········································································ 1256 외국어색인 ········································································ 1269