신법학개론(2판)

1. 법의 개념 ·········································································································································· 1

<제2장> 헌법

제1절 헌법총설········································································································································ 37
 Ⅰ. 헌법개념과 역사성·························································································································· 37

    1. 헌법의 개념 ···································································································································· 37

    2. 헌법개념의 역사성과 다양성 ·········································································································· 37

      (1) 고유한 의미의 헌법개념 / 37

      (2) 근대적 ․ 입헌주의적 의미의 헌법개념 / 38

      (3) 현대적 ․ 사회국가적 의미의 헌법개념 / 38

 Ⅱ. 헌법개념의 유형과 분류················································································································ 39 

    1. 헌법제정 주체에 따른 (고전적) 분류 ······························································································ 39

    2. 존재형식에 따른 분류 ···················································································································· 39

    3. 뢰벤슈타인의 새로운 분류 ············································································································· 41

      (1) 독창성 여부에 따른 분류 / 41 

      (2) 헌법의 존재론적 분류 / 41

    4. 대한민국헌법의 개념정의와 분류 ··································································································· 41

제2절 헌법의 기능과 특성·················································································································· 42

 Ⅰ. 헌법의 기능 ······································································································································ 42

    1. 국가창설적 기능 ····························································································································· 42

    2. 정치생활주도기능 ··························································································································· 42

    3. 기본권보장을 통한 사회통합기능 ··································································································· 43

    4. 수권(授權) 및 권능제한적 기능 ······································································································ 43

    5. 정치적 정의실현기능 ······················································································································ 44

 Ⅱ. 헌법의 특성 ······································································································································ 44

    1. 법규범으로서 최고규범성 ················································································································ 45

    2. 헌법의 정치규범성 ·························································································································· 46

    3. 헌법의 조직규범성 ·························································································································· 46

    4. 헌법의 생활규범성 ·························································································································· 47

    5. 헌법의 권력제한성 ·························································································································· 47

    6. 헌법의 역사성과 이념성 ················································································································· 48

제3절 헌법의 제정과 개정·················································································································· 49

 Ⅰ. 헌법의 제정 ······································································································································ 49

    1. 헌법제정의 의의 ······························································································································ 49

    2. 헌법제정권력 ·································································································································· 49

 Ⅱ. 헌법의 개정 ······································································································································ 50

    1. 헌법개정의 개념 ······························································································································ 50

    2. 헌법의 개정과 구별되어 할 개념 ··································································································· 50

      (1) 헌법의 개혁 / 50 

      (2) 헌법의 파괴 / 50

      (3) 헌법의 변천(변질) / 50 

      (4) 헌법의 폐제 / 51

      (5) 헌법의 침해 / 51 

      (6) 헌법의 정지 / 51

   3. 헌법개정의 구체적 한계 ················································································································· 51

      (1) 초헌법적 사유(헌법 외적인 사유) / 51 

      (2) 헌법 내재적 사유 / 51

      (3) 개정 절차를 바꿀 수 있느냐? / 51 

      (4) 실정헌법상의 사유 / 52

   4. 현행헌법의 개정절차(제10장 제128조~제130조) ············································································· 52

      (1) 제안 / 52 

      (2) 공고 / 52

      (3) 의결 / 52 

      (4) 국민투표 / 52

      (5) 공포 / 53 

제4절 대한민국 헌법····························································································································· 53 

 Ⅰ. 헌정사 ················································································································································ 53

    1. 중요 헌정사 ···································································································································· 53

    2. 대한민국의 국가형태 ······················································································································ 55

      (1) 국가형태의 분류 / 55 

      (2) 대한민국의 국가형태 / 55

    3. 국가의 구성 ···································································································································· 55

      (1) 국민 / 55 

      (2) 영역 / 56

Ⅱ. 통치기구의 조직과 기능 ················································································································ 56

   1. 정부형태 ········································································································································ 56

   2. 입법부의 조직과 기능 ··················································································································· 56

     (1) 국회의 헌법적 지위 / 56 

     (2) 국회의 구성과 조직, 운영 / 57

     (3) 국회의 기능 / 57

   3. 행정부의 조직과 기능 ·················································································································· 58

     (1) 대 통 령 / 58 

     (2) 행 정 부 / 61

   4. 사법부의 조직과 기능 ·················································································································· 62

     (1) 사법부의 특징과 기능 / 62 

     (2) 사법권의 범위와 한계 / 62

     (3) 사법권의 독립 / 63 

     (4) 법원의 조직과 권한 / 64

     (5) 헌법재판소의 지위와 조직 / 64

   5. 경제질서 ········································································································································· 66

제5절 기본권············································································································································ 68

   1. 포괄적 기본권 ································································································································· 69

     (1) 인간으로서 존엄과 가치 / 69 

     (2) 행복추구권 / 70

     (3) 평 등 권 / 73

   2. 자유권적 기본권 ····························································································································· 75

     (1) 신체의 자유 / 75 

     (2) 사생활의 자유 / 81

     (3) 정신적 자유권 / 83

   3. 경제적 기본권 ································································································································ 90

     (1) 재산권의 보장 / 90 

     (2) 직업선택의 자유 / 90

     (3) 소비자의 권리 / 91

   4. 사회권적 기본권 ····························································································································· 91

     (1) 인간다운 생활을 할 권리 / 91 

     (2) 교육을 받을 권리 / 93

     (3) 근로의 권리와 노동3권 / 93 

     (4) 환 경 권 / 94

     (5) 혼인 ․ 가족 ․ 보건에 관한 권리 / 95

   5. 참정권 ············································································································································ 96

     (1) 선거권 / 96 

     (2) 공무담임권 / 96

     (3) 국민투표권 / 97

   6. 청구권적 기본권 ····························································································································· 97

     (1) 청 원 권 / 97 

     (2) 재판청구권 / 97

     (3) 국가배상청구권 / 97 

     (4) 형사보상청구권 / 98

     (5) 범죄피해자 국가구조청구권 / 99

<제3장> 형법
　

1. 형법의 개념 ·································································································································· 101

2. 형법의 지위 ·································································································································· 101

3. 형법의 규범적 성격 ······················································································································ 101

  (1) 가설적 규범(假說的 規範)이다 / 101

  (2) 행위규범(行爲規範)과 재판규범(裁判規範)이다 / 102

  (3) 평가규범(評價規範)과 의사결정규범(意思決定規範)이다 / 102

4. 형법의 기능 ·································································································································· 102

  (1) 보호적 기능(保護的 機能) / 102 

  (2) 보장적 기능(保障的 機能) / 103

  (3) 사회보호적 기능(社會保護的 機能) / 103

5. 죄형법정주의 ································································································································ 103

  (1) 법률주의(관습형법금지의 원칙) / 103 

  (2) 소급효금지의 원칙 / 104

  (3) 유추해석금지의 원칙 / 104 

  (4) 명확성의 원칙 / 104

  (5) 적정성의 원칙 / 105

6. 범죄행위의 성립 ··························································································································· 107

  (1) 범죄의 개념 / 107 

  (2) 행위 / 108

  (3) 범죄의 성립요건 / 109

7. 범죄의 종류 ·································································································································· 115

  (1) 개인적 법익에 관한 죄 / 115 

  (2) 사회적 법익에 관한 죄 / 115

  (3) 국가적 법익에 관한 죄 / 116

8. 형벌의 종류 ·································································································································· 116

  (1) 자유형 / 118 

  (2) 재산형 / 118

9. 살 인 죄 ······································································································································· 118

10. 존속살해죄 ·································································································································· 119

11. 영아살해죄 ··································································································································· 120

12. 촉탁 ․ 승낙 살인죄 ······················································································································· 120

13. 자살 ․ 교사방조죄 ························································································································· 120

14. 상해의 죄 ···································································································································· 121

15. 폭 행 죄 ····································································································································· 122

16. 착한 사마리아인의 법 ················································································································· 124

17. 낙 태 죄 ······································································································································ 127

18. 강 간 죄 ····································································································································· 129

  (1) 강간죄 사례 / 130

  (2) 준강간 ․ 강제추행죄 사례 / 135

  (3) 미성년자에 대한 간음 ․ 추행죄 사례 / 136

  (4) 성폭력범죄의 처벌 등에 관한 특례법 위반 사례 / 137

19. 명예에 관한 죄 ··························································································································· 137

  (1) 공연성과 명예훼손죄 / 138 

  (2) 죽은 자와 명예훼손죄 / 139

20. 비밀침해의 죄 ···························································································································· 140

21. 주거침입의 죄 ····························································································································· 142

22. 절 도 죄 ····································································································································· 145

23. 강 도 죄 ····································································································································· 147

24. 사 기 죄 ····································································································································· 149

25. 공 갈 죄 ····································································································································· 153

26. 횡 령 죄 ····································································································································· 156

27. 배 임 죄 ····································································································································· 158

28. 장 물 죄 ····································································································································· 160

29. 손 괴 죄 ····································································································································· 161

30. 권리행사방해죄 ··························································································································· 163

<제4장> 민법
　
제1절 민법총칙······································································································································ 165

   1. 민법의 기본원리 ···························································································································· 165

     (1) 근대 민법 3대원리 / 165 

     (2) 근대 민법의 수정원리 / 166

     (3) 우리 민법의 기본원리 / 166

   2. 권리의 주체 ·································································································································· 168

     (1) 자 연 인 / 168 

     (2) 법인 / 174

   3. 권리의 객체 ·································································································································· 175

     (1) 동산과 부동산 / 175 

     (2) 주물과 종물 / 175

     (3) 원물과 과실 / 176

   4. 권리의 변동 ·································································································································· 176

     (1) 법률요건과 법률사실 / 176 

     (2) 법률행위 / 176

     (3) 의사표시 / 178 

     (4) 법률행위의 대리 / 183

     (5) 법률행위의 부관 / 185

   5. 기간 ·············································································································································· 186

   6. 소멸시효 ······································································································································· 186

     (1) 소멸시효의 의의 / 186

제2절 물권법·········································································································································· 188 

   1. 서론 ·············································································································································· 188

     (1) 물권법정주의 / 189

     (2) 일물일권주의 / 189

     (3) 물권적 청구권 / 190

   2. 물권변동 ······································································································································· 191

     (1) 법률행위에 의한 물권변동 / 191

     (2) 법률행위에 의하지 않은 물권변동 / 192

   3. 소 유 권 ······································································································································· 192

   4. 점 유 권 ······································································································································· 192

   5. 제한물권 ······································································································································· 193

     (1) 용익물권 / 193 

     (2) 담보물권 / 194

제3절 채권법·········································································································································· 197

   1. 채권의 개념 ·································································································································· 197

   2. 채권의 효력 ·································································································································· 197

     (1) 대내적 효력 / 197 (2) 대외적 효력 / 198

   3. 채무불이행 ·································································································································· 199

     (1) 의의 / 199 

     (2) 채무불이행의 종류 / 199

   4. 다수당사자의 채권관계 ················································································································· 200

     (1) 분할채권관계 / 200 

     (2) 불가분채권관계 / 200

     (3) 연대채무 / 200
     (4) 보증채무 / 201

   5. 채권의 발생원인 ··························································································································· 201

     (1) 계약 / 202 

     (2) 법률규정에 의한 채권의 발생 / 205

   6. 채권의 소멸원인 ··························································································································· 207

      (1) 변제 / 207 

      (2) 대물변제 / 207

      (3) 공탁 / 207 

      (4) 상계 / 208

      (5) 경개 / 208 

      (6) 면제 / 208

      (7) 혼동 / 208

제4절 친족상속법 ·········································································································································· 209

   1. 약혼 ·············································································································································· 209

     (1) 약혼의 성립 / 209 

     (2) 약혼의 해제(파혼) / 209

     (3) 약혼해제사유 / 210

   2. 혼인 ·············································································································································· 210

     (1) 혼인의 성립요건 / 210 

     (2) 혼인의 효과 / 211

     (3) 혼인의 무효와 취소 / 213 

     (4) 이혼 / 213

   3. 사 실 혼 ······································································································································· 216

   4. 부모와 자 ····································································································································· 216

     (1) 친 생 자 / 216 

     (2) 양자 / 217

     (3) 친 양 자 / 219

   5. 친권 ·············································································································································· 220

   6. 후견 ·············································································································································· 221

제5절 상속법 ·········································································································································· 222

   1. 상속 ·············································································································································· 222

     (1) 총칙 / 222 

     (2) 상 속 인 / 223

   2. 유언 ·············································································································································· 225

   3. 유 류 분 ······································································································································· 226

<제5장> 행정법

1. 행정법의 의의 ······························································································································· 227

2. 행정법의 일반원칙 ························································································································ 227

  (1) 비례의 원칙 / 227 

  (2) 부당결부금지의 원칙 / 229

  (3) 신뢰보호의 원칙 / 229

  (4) 평등의 원칙 / 230

  (5) 행정의 자기구속의 원칙 / 230 (6) 기타 행정법의 일반원칙 / 231

3. 행정주체와 객체 ··························································································································· 231

4. 행정법관계의 특성 ························································································································ 232

  (1) 법률적합성 / 232 

  (2) 행정의사의 공정력 / 232

  (3) 행정의사의 구성요건적 효력 / 232 

  (4) 행정의사의 확정력 / 232

  (5) 행정의사의 강제력 / 233

5. 권리구제수단의 특수성 ················································································································· 234

6. 공권과 공의무 ······························································································································ 234

  (1) 공권 / 234 

  (2) 국가적 공권 / 234

  (3) 개인적 공권 / 235 

  (4) 개인적 공권의 특수성 / 235

  (5) 공 의 무 / 236

7. 행정작용과 행정행위 ···················································································································· 236

  (1) 행정작용과 법치주의 / 236 

  (2) 행정행위 / 236

  (3) 행정행위의 기능 / 237 

  (4) 행정행위의 종류 / 238

8. 행정행위의 하자와 철회 ··············································································································· 241

9. 행정벌과 행정강제 ························································································································ 242

  (1) 행정벌 / 242 

  (2) 행정강제 / 242

10. 행정소송 ····································································································································· 243

  (1) 이의신청 / 243 

  (2) 행정심판 / 244

  (3) 행정소송 / 244

<제6장> 형사소송법

1. 형사재판의 의의 ···························································································································· 247

2. 형사재판의 구조 ··························································································································· 247

3. 수사와 형사절차 ··························································································································· 248

  (1) 긴급체포 / 249 

  (2) 현행범체포 / 249

  (3) 체포 후의 조치 / 249

4. 체포와 구속 ·································································································································· 250

5. 수사의 종결 ·································································································································· 252

6. 약식절차 ······································································································································· 254

7. 보석 ·············································································································································· 255

  (1) 보석의 의의 / 255 

  (2) 보석의 허가사유 / 255

  (3) 보석의 조건 및 취소 / 256

8. 배상명령 ······································································································································· 257

  (1) 대상 범죄 / 257 

  (2) 배상의 범위 / 257

9. 형사보상청구 ································································································································ 259

<제7장> 민사소송법

1. 민사소송법의 의의 ························································································································ 261

2. 민사소송제도의 이념 ···················································································································· 261

3. 민사소송의 주체 ··························································································································· 262

  (1) 법원 / 262 

  (2) 당 사 자 / 262

  (3) 소송대리인 / 263

4. 민사소송의 절차 ··························································································································· 263

  (1) 보통소송절차 / 264 

  (2) 특별소송절차 / 265

5. 판결의 효력 ······························································································································· 265

  (1) 기 판 력 / 266 

  (2) 집 행 력 / 266

  (3) 형 성 력 / 266

<제8장> 국제법

1. 국제법의 개념 ······························································································································· 267

  (1) 국제법의 의의 / 267 

  (2) 국제법의 법적 성질 / 267

  (3) 국제법과 국내법의 관계 / 268

  (4) 국제법의 법원과 상호간의 효력관계 / 269

2. 국제법의 주체 ······························································································································ 269

  (1) 국가 / 269 

  (2) 국제조직 / 270

  (3) 개인 ․ 사법인 / 270

3. 조 약 법 ······································································································································· 270

  (1) 조약의 개념 / 270 

  (2) 조약의 일반적 성립절차 / 271

  (3) 조약의 효력 / 272 (4) 조약의 무효 / 272

4. 국가의 대외기관 ··························································································································· 273

  (1) 외교사절 / 273

5. 해 양 법 ······································································································································· 274

  (1) 영해 / 274 

  (2) 공해 / 275

  (3) 배타적 경제수역 / 275 

  (4) 대륙붕 / 276

6. 국제분쟁의 해결 ··························································································································· 276

  (1) 분쟁의 평화적 해결 / 276 

  (2) 분쟁의 강제적 해결 / 278

7. 국제경제법 ···································································································································· 278

  (1) 국제경제법의 의의 / 278 

  (2) 세계무역기구(WTO) / 278

<제9장> 상법

제1절 상법의 개념 ······························································································································· 281

   1. 상법의 의의 ·································································································································· 281

   2. 상법의 이념 ·································································································································· 281

     (1) 영 리 성 / 282 

     (2) 기업의 유지 ․ 강화 / 282

     (3) 거래의 안전 ․ 신속화 / 282 

     (4) 경제주체간의 이익의 조화 / 282

제2절 총칙 ·············································································································································· 283

   1. 기업의 구성 ·································································································································· 283

     (1) 기업의 인적 조직 / 283 

     (2) 기업의 물적 조직 / 285

   2. 기업의 공시와 양도 ······················································································································ 287

     (1) 상업등기 / 287 

     (2) 영업양도 / 288

제3절 상행위 ·········································································································································· 290

   1. 상행위의 개념 ······························································································································· 290

     (1) 의의 / 290 

     (2) 종류 / 290

   2. 상행위 총론 ·································································································································· 291

     (1) 민법총칙편에 대한 특칙 / 291 

     (2) 물권편에 대한 특칙 / 291

     (3) 채권편에 대한 특칙 / 292 

     (4) 특수한 계약 / 293

   3. 상행위 각론 ·································································································································· 294

     (1) 대 리 상 / 294 

     (2) 중 개 업 / 294

     (3) 위탁매매업 / 294 

     (4) 운송주선업 및 운송업 / 295

     (5) 공중접객업 / 296 

     (6) 창 고 업 / 296

     (7) 금융리스업 / 297 

     (8) 가 맹 업 / 297

     (9) 채권매입업 / 297

제4절 회사법 ·········································································································································· 297

   1. 회사의 개념 ·································································································································· 297

     (1) 회사의 의의 및 종류 / 297 

     (2) 회사의 능력 / 298

     (3) 회사의 설립 / 298 

     (4) 회사의 합병 ․ 분할 / 298

     (5) 회사의 해산 / 299

   2. 합명회사 ······································································································································· 300

   3. 합자회사 ······································································································································· 301

   4. 주식회사 ······································································································································· 301

     (1) 주식회사의 개념 / 301 

     (2) 설립절차 / 301

     (3) 주식과 주주 / 302 

     (4) 기관 / 303

     (5) 자본의 조달 / 305 

     (6) 정관의 변경 / 306

     (7) 자본의 감소 / 307

   5. 유한회사 ······································································································································· 307

     (1) 개념 / 307 

     (2) 사원의 권리의무 / 307

     (3) 회사의 기관 / 308

제5절 어음 ․ 수표법 ······························································································································· 308

   1. 어음 ․ 수표의 의의 ························································································································· 308

   2. 어음 ․ 수표의 차이 ························································································································· 309

      (1) 어음의 기능 / 309 

      (2) 수표의 기능 / 309

   3. 환 어 음 ······································································································································· 310

     (1) 환어음의 발행 / 310 

     (2) 환어음의 기재사항 / 310

     (3) 백지어음 / 313 

     (4) 환어음의 인수 / 314

     (5) 환어음의 양도 / 314 

     (6) 환어음의 지급 / 315

     (7) 환어음의 소구 / 316 

     (8) 어음항변 / 317

     (9) 어음의 보증 / 317 

     (10) 참가 / 318

     (11) 어음상의 권리의 소멸 / 318

   4. 약속어음 ······································································································································· 318

     (1) 약속어음에 관한 특칙 / 319 

     (2) 환어음에 관한 규정의 준용 / 320

   5. 수표 ·············································································································································· 320

     (1) 수표의 의의 / 320 

     (2) 수표의 종류 / 320

     (3) 수표의 기재사항 / 323 

     (4) 자금관계 / 323

     (5) 수표보증과 지급보증 / 324

제6절 보험법 ·········································································································································· 324

   1. 보험제도 ········································································································································ 324

     (1) 보험의 개념 / 324 

     (2) 보험의 종류 / 324

   2. 보험계약 ······································································································································· 326

     (1) 보험계약의 의의 / 326 

     (2) 보험계약의 요소 / 327

     (3) 보험계약의 체결 / 329 

     (4) 보험계약의 효과 / 330

[저자소개]

⋅조선대학교 법정대학 법학과 

⋅조선대학교 대학원 법학과(법학석사, 법학박사 수료) 

⋅조선대학교 재직 

⋅일본 와세다 대학 법학부 교류학자 ․ 후쿠오카 대학 연구교수 

⋅조선대학교, 청주대학교, 광주대학교, 군산대학교, 광주여자대학교 외래교수 

⋅광주지방법원 민사조정위원(상근) 

⋅광주지방교정청 행정심판위원회 위원 

⋅전남지방경찰청 치안정책평가위원회 ․ 보안협력위원회 ․ 징계위원회 위원

⋅현) 전남도립대학교 경찰경호학과 교수

▣ 주요저서 

⋅생활과 법률 

⋅한국법의 이해 

⋅경찰관련법규 실무해설 

⋅민법총칙 

⋅“생활환경 오염의 사법적 구제” 등의 다수 논문