Ⅰ. 헌법판례
제1편 헌법총론
제1장 헌법과 헌법학 ······························································································································· 4
제1절 헌법의 의의와 헌법관 ····················································································································· 4
제2절 헌법의 해석 ····································································································································· 4
제3절 헌법의 제정·개정과 변천 ·············································································································· 4
제4절 헌법의 수호 ····································································································································· 4
제2장 대한민국헌법총설 ·························································································································· 4
제1절 대한민국헌정사 ································································································································ 4
제2절 대한민국의 국가형태와 구성요소 ···································································································· 5
1. 귀하 허가에서의 ‘품행 단정’ 요건 관련 사건 [2016. 7. 28. 선고 2014헌바421 국적법 제5조 제3호 위헌소원] ·················· 5
제3절 헌법의 기본원리 ······························································································································ 6
1. 수정수입세금계산서 사건 [2016. 7. 28. 선고 2014헌바372, 2016헌바29(병합) 부가가치세법 제35조 제2항 제2호 등 위헌소원 등]
·················································································································································································· 6
2. 민법 부칙 사건 [2016. 10. 27. 선고 2015헌바203, 361(병합) 민법 부칙 제12조 제2항 등 위헌소원] ···································· 8
3. 가집행선고 실효 시 원상회복 및 손해배상에 관한 민사소송법 규정 위헌소원 사건 [2017. 5. 25. 선고 2014헌바360 민사소송법
제215조 제2항 위헌소원] ················································································································································ 9
제4절 헌법의 기본질서 ···························································································································· 10
제5절 헌법의 기본제도 ···························································································································· 10
제1항 헌법과 제도적 보장 ·························································································································· 10
제2항 정당제도 ············································································································································ 11
1. 정치자금법 제45조 제1항 본문 중 ‘당해 위반행위를 한 자’부분 관련 위헌소원사건 [2016. 11. 24. 선고 2014헌바252 정치자금
법 제45조 제1항 등 위헌소원] ··································································································································· 11
제3항 선거제도 ············································································································································ 12
1. 기초자치단체장선거 예비후보자의 후원회 금지 사건 [2016. 9. 29. 선고 2015헌바228 정치자금법 제6조 등 위헌소원] 12
2. 후보자의 명함교부 주체 관련조항 사건 [2016. 9. 29. 선고 2016헌마287 공직선거법 제93조 제1항 제1호 위헌확인] ···· 13
3. 사회복무요원의 선거운동 금지 사건 [2016. 10. 27. 선고 2016헌마252 병역법 제33조 제2항 제2호 위헌확인] ············· 16
4. 현직 국회의원인 예비후보자의 선거사무소 등 설치 규정 위헌 소원 사건 [2017. 6. 29. 선고 2016헌마110 공직선거법 제60조의3
제1항 제1호 등 위헌확인] ········································································································································· 19
제4항 공무원제도 ········································································································································ 20
제5항 지방자치제도 ····································································································································· 21
1. 지방의회 재의결에 대하여 제소를 지시하거나 직접 제소할 수 있는 주체 [2016. 9. 22. 선고 2014추521 전원합의체 판결,
조례안재의결무효확인] ··············································································································································· 21
제2편 기본권론 ······································································································································ 23
제1장 기본권 총론 ································································································································ 23
1. 원자력발전소 건설을 내용으로 하는 전원개발사업 실시계획 승인 관련 사건 [2016. 10. 27. 선고 2015헌바358 전원개발촉진법
제2조 제1호 등 위헌소원] ················································································································································ 23
2. 원자력발전소 건설·운영에서의‘중대사고’관련 사건 [2016. 10. 27. 선고 2012헌마121 원자력이용시설 방사선환경영향평가서 작성
등에 관한 고시 제5조 제1항 별표1 등 위헌확인] ················································································································· 26
3. 산업단지 인허가 절차 간소화를 위한 특례법 사건 [2016. 12. 29. 선고 2015헌바280 구 산업단지 인·허가 절차 간소화를 위한 특례법
제9조 제2항 등 위헌소원] ················································································································································ 32
제2장 인간의 존엄과 가치, 행복추구권, 법 앞의 평등 ······································································· 35
1. 재심으로 무죄판결을 받은 사람에게 잔여 퇴직급여를 지급하면서 이자 가산을 하지 않는 군인연금법 사건 [2016. 7. 28. 선고
2015헌바20 군인연금법 제33조 제2항 위헌소원] ················································································································· 35
2. 청탁금지법(일명 김영란법) 사건 [2016. 7. 28. 선고 2015헌마235 부정청탁 및 금품 등 수수의 금지에 관한 법률 제2조 제1호 마목 등
위헌확인] ······································································································································································· 37
3. 자녀의 이름에 사용할 수 있는 한자 제한 규정 위헌확인 사건 [2016. 7. 28. 선고 2015헌마964 호적법 제49조 제3항 등 위헌확인]
···················································································································································································· 43
4. 신상정보 등록대상자의 변경정보 제출의무 및 사진촬영의무 위반 시 벌칙조항 등에 관한 사건 [2016. 7. 28. 선고 2016헌마109
성폭력범죄의 처벌 등에 관한 특례법 제43조 등 위헌확인] ···································································································· 47
5. 출퇴근 재해 사건 [2016. 9. 29. 선고 2014헌바254 산업재해보상보험법 제37조 제1항 제1호 다목 등 위헌소원] ······················ 51
6. 회생절차 개시시 쌍방 미이행 쌍무계약 해제에 관한 사건 [2016. 9. 29. 선고 2015헌바28 채무자 회생 및 파산에 관한 법률 제119조
제1항 등 위헌소원] ·························································································································································· 55
7. 국가유공자법 가산점 사건 [2016. 9. 29. 선고 2014헌마541 국가유공자 등 예우 및 지원에 관한 법률 제31조 제3항 위헌확인] 56
8. 잠수용 스쿠버장비를 사용한 수산자원의 포획·채취 금지 위헌확인 사건 [2016. 10. 27. 선고 2013헌마450 수산자원관리법 제18조등
위헌확인] ······································································································································································· 59
9. 지도직 공무원 취업지원 가산점 배제 사건 [2016. 10. 27. 선고 2014헌마254, 2016헌마779(병합) 국가유공자 등 예우 및 지원에 관한
법률 시행령 제48조 별표8 위헌확인] ································································································································· 61
10. 사이버대학에 대한 의무기록사 응시자격 제한사건 [2016. 10. 27. 선고 2014헌마1037 의료기사 등에 관한 법률 제4조 제1항 제1호
위헌확인] ······································································································································································ 62
11. 기부금품모집 등록조항 위헌소원 사건 [2016. 11. 24. 선고 2014헌바66, 2015헌바342(병합) 기부금품의 모집 및 사용에 관한 법률
제16조 제1항 제1호 등 위헌소원] ···································································································································· 64
12. 반의사불벌죄 처벌희망의사표시 철회시한 위헌소원 사건 [2016. 11. 24. 선고 2014헌바451 형사소송법 제232조 제1항 위헌소원]
··················································································································································································· 66
13. 대학도서관의 일반인 이용 승인 거부 위헌확인 사건 [2016. 11. 24. 선고 2014헌마977 도서대출 및 열람실 이용 불허행위 등 위헌확인]
·················································································································································································· 68
14. 지역가입자 건강보험료 위헌소원 사건 [2016. 12. 29. 선고 2015헌바199 국민건강보험법 제72조 위헌소원] ······················ 70
15. 퇴직군인 상이연금 사건 [2016. 12. 29. 선고 2015헌바208 구 군인연금법 제23조 제1항 등 위헌소원; 2016헌바145(병합) 군인연금법
제23조 제1항 등 위헌소원] ············································································································································· 73
16. 택시 최저임금 사건 [2016. 12. 29. 선고 2015헌바327, 356, 2016헌바68(병합) 최저임금법 제6조 제5항 위헌소원] ··············· 76
17. 구치소 내 과밀수용행위 위헌확인 사건 [2016. 12. 29. 선고 2013헌마142 구치소 내 과밀수용행위 위헌확인] ···················· 77
18. 사립유치원 매도 사건 [2016. 12. 29. 선고 2014헌마296 기소유예처분취소] ····································································· 79
19. 이동통신단말장치 지원금 상한제에 관한 사건 [2017. 5. 25. 선고 2014헌마844 이동통신단말장치 유통구조 개선에 관한 법률 제4조
제1항 등 위헌확인] ························································································································································ 82
20. 개인택시 조례 사건 [2017. 5. 25. 선고 2015헌마1110 여객자동차 운수사업법 제14조 제2항 위헌확인] ······························· 83
21. 소규모 건축물 공사감리자 지정제도 위헌확인 사건 [2017. 5. 25. 선고 2016헌마516 건축법 제25조 제2항 본문 등 위헌확인]
··················································································································································································· 85
22. 영어표현과 모욕 사건 [2017. 5. 25. 선고 2017헌마1 기소유예처분취소] ·········································································· 87
23. 구 ‘성폭력범죄의 처벌 등에 관한 특례법’상 카메라등이용촬영죄 처벌조항 위헌소원 사건 [2017. 6. 29. 선고 2015헌바243
구 성폭력범죄의 처벌 등에 관한 특례법 제13조 제1항 위헌소원] ························································································· 88
제3장 자유권적 기본권 ························································································································· 90
제1절 생명권 ············································································································································ 90
제2절 신체의 자유권 ································································································································ 90
1. ‘그 밖의 추행’을 형사처벌하도록 한 구 군형법 제92조의5에 대한 위헌소원 사건 [2016. 7. 28. 선고 2012헌바258 군형법
제92조의5 위헌소원] ···················································································································································· 90
2. 공무원의 지위를 이용하여 선거에 영향을 미치는 행위에 대한 금지·처벌 사건 [2016. 7. 28. 선고 2015헌바6 공직선거법 제85조
제1항 등 위헌소원] ······················································································································································ 94
3. 정신질환자 보호입원 사건 [2016. 9. 29. 선고 2014헌가9 정신보건법 제24조 제1항 등 위헌제청] ····································· 96
4. 강도상해·치상죄 사건 [2016. 9. 29. 선고 2014헌바183, 2015헌바169 형법 제337조 위헌소원] ···································· 100
5. 비의료인의 의료광고금지조항 사건 [2016. 9. 29. 선고 2015헌바325 의료법 제82조 제3항 위헌소원] ···························· 101
6. 구 ‘특정범죄 가중처벌 등에 관한 법률’상 반복적인 절도죄 누범의 가중처벌 조항에 대한 위헌소원 사건 [2016. 9. 29. 선고
2016헌바44 특정범죄 가중처벌 등에 관한 법률 제5조의4 제5항 위헌소원] ········································································ 102
7. 구 도로교통법 양벌규정에 대한 위헌제청 사건 [2016. 10. 27. 선고 2016헌가10 구 도로교통법 제116조 위헌제청] ······ 104
8. 형법상 상습범 가중처벌조항 위헌소원 사건 [2016. 10. 27. 선고 2016헌바31 형법 제332조 위헌소원] ························· 106
9. ‘공중도덕상 유해한 업무’에 대한 근로자파견 금지 사건 [2016. 11. 24. 선고 2015헌가23 구 파견근로자보호 등에 관한 법률 제42조
제1항 위헌제청] ························································································································································· 107
10. 중소기업중앙회 정관에 범죄구성요건을 위임한 중소기업협동조합법 사건 [2016. 11. 24. 선고 2015헌가29 구 중소기업협동조합법
제137조 제2항 위헌제청] ·········································································································································· 109
11. 경범죄처벌법상 ‘과다노출’ 금지조항 사건 [2016. 11. 24. 선고 2016헌가3 경범죄 처벌법 제3조 제1항 제33호 위헌제청] 111
12. 장애인준강간죄 사건 [2016. 11. 24. 선고 2015헌바136 성폭력범죄의 처벌 등에 관한 특례법 제6조 제4항 위헌소원] ······ 112
13. 집시법상 질서유지선의 설정 범위에 관한 사건 [2016. 11. 24. 선고 2015헌바218 집회 및 시위에 관한 법률 제13조 제1항 위헌소원]
············································································································································································ 114
14. 정신적 장애인에 대한 준강간·준강제추행죄 사건 [2016. 11. 24. 선고 2015헌바297 구 성폭력범죄의 처벌 등에 관한 특례법
제6조 등 위헌소원] ·················································································································································· 116
15. 공기업 직원에 대한 형법상 뇌물죄 적용에 있어서 공무원 의제 규정 위헌 소원 사건 [2016. 12. 29. 선고 2015헌바225 공공기관의
운영에 관한 법률 제53조 위헌소원] ···························································································································· 118
16. 카메라등이용촬영죄 조항 및 성폭력 치료프로그램 이수명령 조항 위헌확인 사건 [2016. 12. 29. 선고 2016헌바153 성폭력범죄의
처벌 등에 관한 특례법 제14조 제2항 등 위헌소원] ······································································································ 120
17. 특수강도강제추행 사건 [2016. 12. 29. 선고 2016헌바258 구 성폭력범죄의 처벌 및 피해자보호 등에 관한 법률 제5조 제2항 위헌소원]
············································································································································································ 125
18. 정신성적 장애인에 대한 치료감호기간 사건 [2017. 4. 27. 선고 2016헌바452 치료감호법 제16조 제2항 제1호 등 위헌소원]
············································································································································································ 127
19. 정신성적 장애인에 대한 치료감호기간 사건 [2017. 4. 27. 선고 2015헌마989, 1065(병합) 치료감호법 제16조 제2항 제1호 위헌확인
등] ········································································································································································· 129
20. 금융투자업자의 투자자에 대한 단정적 판단 제공행위 처벌 사건 [2017. 5. 25. 선고 2014헌바459 자본시장과 금융투자업에
관한 법률 제49조 제2호 등 위헌소원] ························································································································ 131
21. 징계시효 연장 사건 [2017. 6. 29. 선고 2015헌바29 구 지방공무원법 제73조 제2항 등 위헌소원] ································· 133
제3절 사생활 자유권 ······························································································································ 134
1. 접견내용 녹음 및 녹음파일 제공 사건 [2016. 11. 24. 선고 2014헌바401 형의 집행 및 수용자의 처우에 관한 법률 제41조 제2항
등 위헌소원] ····························································································································································· 134
2. 강제추행 범죄자에 대한 신상정보 등록 사건 [2016. 11. 24. 선고 2016헌마194 신상정보 등록 고지 취소 등] ·············· 137
3. 신상정보 공개·고지조항 소급적용 사건 [2016. 12. 29. 선고 2015헌바196·343(병합) 성폭력범죄의 처벌 등에 관한 특례법 부칙
제7조 제1항 등 위헌소원, 2015헌바222 성폭력범죄의 처벌 등에 관한 특례법 부칙 제7조 제1항 등 위헌소원] ······················· 138
4. 주거침입준강제추행죄 신상정보 등록 사건 [2017. 5. 25. 선고 2016헌마786 성폭력범죄의 처벌 등에 관한 특례법 제42조 등 위헌확인]
··············································································································································································· 141
5. 법률정보 제공 사이트를 운영하면서 법학과 홈페이지 등을 통해 수집한 개인정보를 유료로 제공한 경우 개인정보 보호법
위반 여부 [대법원 2016. 8. 17. 선고 2014다235080 판결, 부당이득금반환] ···································································· 144
제4절 정신적 자유권 ······························································································································ 146
제1항 양심의 자유 ···································································································································· 146
제2항 종교의 자유 ···································································································································· 146
제3항 언론·출판·집회·결사의 자유 ····································································································· 147
1. 구 ‘집회 및 시위에 관한 법률’상 ‘재판에 영향을 미칠 염려가 있거나 미치게 하기 위한 집회·시위’와 ‘민주적 기본질서에
위배되는 집회·시위’금지 및 처벌조항 위헌제청 사건 [2016. 9. 29. 선고 2014헌가3 구 집회 및 시위에 관한 법률 제3조 제1항
제3호 위헌제청; 2014헌가12(병합) 구 집회 및 시위에 관한 법률 제3조 제1항 제2호 등 위헌제청] ·································· 147
2. 미신고 시위에 대한 해산명령불응죄를 처벌하는 집시법 사건 [2016. 9. 29. 선고 2014헌바492 집회 및 시위에 관한 법률 제24조
제5호 위헌소원] ····················································································································································· 149
3. 신고범위를 뚜렷이 벗어난 집회·시위에 대한 해산명령불응죄를 처벌하는 집시법 사건 [2016. 9. 29. 선고 2015헌바309,332
집회 및 시위에 관한 법률 제24조 제5호 위헌소원] ····································································································· 151
4. 인터넷신문의 고용 요건을 규정한 신문법 시행령 등 위헌확인 사건 [2016. 10. 27. 선고 2015헌마1206, 2016헌마277(병합)
신문 등의 진흥에 관한 법률 제2조 제2호 등 위헌확인 등] ·························································································· 152
5. 전화·컴퓨터통신을 이용한 농협 이사 선거운동 사건 [2016. 11. 24. 선고 2015헌바62 구 농업협동조합법 제50조 제4항 등
위헌소원] ······························································································································································ 157
6. 소위 ‘사이버스토킹’ 처벌규정에 대한 위헌소원 사건 [2016. 12. 29. 선고 2014헌바434 정보통신망 이용촉진 및 정보보호 등에
관한 법률 제74조 제1항 제3호 등 위헌소원] ············································································································· 160
7. 사단법인의 해산결의 조항 위헌소원 사건 [2017. 5. 25. 선고 2015헌바260 민법 제78조 위헌소원] ·························· 161
8. 직선제 조합장선거의 선거운동주체 제한 사건 [2017. 6. 29. 선고 2016헌가1 공공단체 등 위탁선거에 관한 법률 제66조 제1호
등 위헌제청] ························································································································································· 162
제4항 학문과 예술의 자유 ························································································································ 163
제4장 경제적 기본권 ··························································································································· 164
제1절 재산권 ·········································································································································· 164
1. 임대차계약에서 약정하였으나 실제로 지급받지 못한 임대차보증금에 관한 부가가치세 부과 사건 [2016. 7. 28. 선고 2014헌바
423 구 부가가치세법공직선거법 제112조 제1항 등 위헌소원] ·························································································· 164
2. 임차인 파산시 임대인의 손해배상청구 제한에 관한 사건 [2016. 9. 29. 선고 2014헌바292 민법 제637조 제2항 위헌소원] ·
·············································································································································································· 166
3. 공익사업을 위하여 취득된 토지의 환매금액 증액청구 사건 [2016. 9. 29. 선고 2014헌바400 공익사업을 위한 토지 등의 취득
및 보상에 관한 법률 제48조 등 위헌소원] ····················································································································· 168
4. 토양오염관리대상시설의 인수자에 대한 오염원인자조항 위헌제청 사건 [2016. 11. 24. 선고 2013헌가19 구 토양환경보전법 제10조
의3 제3항 제4호 등 위헌제청] ····································································································································· 169
5. 법무법인 구성원변호사에게 합명회사 사원의 무한연대책임 준용 사건 [2016. 11. 24. 선고 2014헌바203, 463, 2015헌바305,
375, 2016헌바62(병합) 변호사법 제58조 제1항 위헌소원] ······························································································· 171
6. 토지사용을 허용한 토지소유자의 정화책임면책 제외규정 위헌소원 사건 [2016. 11. 24. 선고 2016헌바11 토양환경보전법 제10조의
4 제2항 단서 위헌소원] ·············································································································································· 172
7. 지방공무원 성과상여금 재분배행위 금지 규정 위헌확인 사건 [2016. 11. 24. 선고 2015헌마1191, 2016헌마231 지방공무원 수당
등에 관한 규정 제6조의2 제7항 등 위헌확인] ················································································································ 174
8. 국민연금법 분할연금 사건 [2016. 12. 29. 선고 2015헌바182 국민연금법 제64조 위헌소원] ··········································· 176
9. 근로자훈련비용 부정수급 사업주에 대한 추가징수 및 지원제한조항 사건 [2016. 12. 29. 선고 2015헌바198 근로자직업능력 개발법
제55조 제2항 등 위헌소원] ········································································································································· 179
10. 사립학교법 사건 [2016. 12. 29. 선고 2016헌바144 사립학교법 제28조 제1항 본문 위헌소원] ······································· 181
11. 납부불성실 가산세 사건 [2016. 12. 29. 선고 2016헌바268 상속세 및 증여세법 제78조 제2항 위헌소원] ······················· 182
12. 민법상 특별수익자의 상속분 조항 등 위헌소원 사건 [2017. 4. 27. 선고 2015헌바24 민법 제1008조 등 위헌소원] ···· 183
13. 민사법정이율 및 계약 해제에 따른 금전 원상회복 시 이자가산범위 사건 [2017. 5. 25. 선고 2015헌바421 민법 제379조 등
위헌소원] ································································································································································ 185
14. 양도소득에 관한 부당행위계산 부인 사건 [2017. 5. 25. 선고 2016헌바269 소득세법 제101조 제1항 등 위헌소원] ······ 186
15. 회계감사인의 손해배상책임 제척기간 사건 [2017. 6. 29. 선고 2015헌바376, 393, 394, 445, 446, 2016헌바47, 50, 199, 255,
256, 271, 273, 291, 292, 345, 352, 366(병합) 자본시장과 금융투자업에 관한 법률 제170조 제1항 등 위헌소원] ··············· 188
제2절 직업선택의 자유 ·························································································································· 190
1. 성인대상 성범죄자의 아동·청소년 관련 기관 취업제한 사건 [2016. 7. 28. 선고 2013헌마436 구 아동·청소년의 성보호에 관한
법률 제44조 제1항 위헌확인] ······································································································································ 190
2. 성인대상 성범죄자의 아동·청소년 관련 학원 취업제한 사건 [2016. 7. 28. 선고 2015헌마359 아동·청소년의 성보호에 관한
법률 제56조 제1항 위헌확인] ······································································································································ 192
3. 성인대상 성범죄자의 장애인복지시설 취업제한 사건 [2016. 7. 28. 선고 2015헌마915 장애인복지법 제59조의3 제1항 위헌확인]
·············································································································································································· 193
4. 수중형 체험활동 운영자의 안전관리계획서 작성·신고의무, 보험가입의무 사건 [2016. 7. 28. 선고 2015헌마923 연안사고 예방에
관한 법률 제2조 제3호 등 위헌확인] ···························································································································· 194
5. 성매매 영업알선에 관한 사건 [2016. 9. 29. 선고 2015헌바65 성매매알선 등 행위의 처벌에 관한 법률 제19조 제2항 제1호 등 위헌소원]
·············································································································································································· 196
6. 미신고 숙박업자 사건 [2016. 9. 29. 선고 2015헌바121 공중위생관리법 제2조 제1항 제2호 등 위헌소원; 2016헌바221(병합) 공중위생관리
법 제20조 제1항 제1호 위헌소원] ································································································································ 198
7. 사법시험법을 폐지하도록 한 변호사시험법 부칙 제2조에 대한 위헌확인 사건 [2016. 9. 29. 선고 2012헌마1002, 2013헌마249,
2015헌마873, 2016헌마267(병합) 변호사시험법 부칙 제1조 등 위헌확인 등] ····································································· 200
8. 변호사시험 응시기회 5회 제한 사건 [2016. 9. 29. 선고 2016헌마47·361·443·584·588(병합) 변호사시험법 제7조 위헌확인
등] ··········································································································································································· 203
9. 성적목적공공장소침입죄 전과자 취업제한 및 신상정보 등록 사건 [2016. 10. 27. 선고 2014헌마709 성폭력범죄의 처벌 등에
관한 특례법 제42조 제1항 등 위헌확인] ······················································································································· 205
10. 보육교사 자격 관련 대면 교과목 지정 사건 [2016. 11. 24. 선고 2016헌마299 영유아보육법 시행규칙 제12조 제1항 별표4 중
2.대면교과목 부분 위헌확인] ······································································································································ 210
11. 건설업 등록을 필요적으로 말소하도록 한 건설산업기본법 조항에 대한 위헌소원 사건 [2016. 12. 29. 선고 2015헌바429
건설산업기본법 제83조 단서 제6호 위헌소원] ·············································································································· 212
12. 변호사법 위반 사건 [2016. 12. 29. 선고 2015헌마880 기소유예처분취소등] ································································ 214
13. 법학전문대학원 외국어능력 활용 규정 위헌확인 사건 [2016. 12. 29. 선고 2016헌마550 법학전문대학원 설치·운영에 관한 법률
제23조 제2항 위헌확인] ············································································································································ 216
14. 소형선망어업 사건 [2016. 12. 29. 선고 2016헌마599 수산업법 시행령 제45조의3 제2항 별표 3의3 1. 근해어업 나. 소형선망 중 조업금지
부분 위헌확인] ························································································································································· 218
15. 가축전염병 예방법 상 보관관리인 지정 취소 조항 등 위헌소원 사건 [2017. 4. 27. 선고 2014헌바405 가축전염병 예방법 제43조
제3항 제3호 등 위헌소원] ········································································································································· 219
16. 자동차 등을 훔친 경우와 운전면허의 필요적 취소 사건 [2017. 5. 25. 선고 2016헌가6 구 도로교통법 제93조 제1항 제12호 위헌제청]
············································································································································································· 220
17. ‘문화재수리 등에 관한 법률’상 문화재수리기술자 자격취소 조항 위헌소원 사건 [2017. 5. 25. 선고 2015헌바373 문화재수리
등에 관한 법률 제9조 위헌소원; 2015헌바382(병합) 문화재수리 등에 관한 법률 제47조 제1항 제6호 등 위헌소원] ·············· 222
18. 샘플 화장품 판매 금지와 그 위반자에 대한 형사처벌 조항 위헌소원 사건 [2017. 5. 25. 선고 2016헌바408 화장품법 제37조
제1항 등 위헌소원] ·················································································································································· 225
19. 현금영수증 과태료 사건 [2017. 5. 25. 선고 2017헌바57 조세범 처벌법 제15조 제1항 본문 위헌소원] ··························· 226
20. 혼합 쌀 판매를 금지한 양곡관리법 규정 위헌확인 사건 [2017. 5. 25. 선고 2015헌마869 양곡관리법 제20조의4 등 위헌확인]
············································································································································································· 228
21. 의료법상 의료인에 대한 필요적 면허취소조항 위헌소원 [2017. 6. 29. 선고 2016헌바394 의료법 제65조 제1항 단서 등 위헌소원]
············································································································································································· 230
22. 장기요양보험 사건 [2017. 6. 29. 선고 2016헌마719 노인장기요양보험법 제35조의2 제1항 본문 등 위헌확인] ················· 232
제3절 소비자의 권리 ······························································································································ 234
제5장 정치적 기본권 ··························································································································· 235
1. 공무원임용결격조항 사건 [2016. 7. 28. 선고 2014헌바437 지방공무원법 제31조 제5호 위헌소원] ······································ 235
2. 배우자의 선거범죄로 후보자의 당선을 무효로 하는 조항 및 기탁금과 선거비용을 반환하도록 하는 조항에 대한 사건 [2016.
9. 29. 선고 2015헌마548 공직선거법 제57조 등 위헌확인] ································································································ 236
3. 지방자치단체의 장 선거에서 후보자가 1인일 경우 무투표 당선을 규정한 공직선거법 조항 위헌확인 사건 [2016. 10. 27. 선고
2014헌마797 공직선거법 제191조 제3항 등 위헌확인] ······································································································· 239
4. 군무원시험 전역 후 3년 응시제한 위헌확인 사건 [2016. 10. 27. 선고 2015헌마734 예비전력관리 업무담당자 선발 규칙 제5조 제2항
등 위헌확인] ································································································································································· 243
5. 비례대표국회의원선거 기탁금 등 사건 [2016. 12. 29. 선고 2015헌마509·1160(병합) 공직선거법 제56조 제1항 제2호 등 위헌확인]
·················································································································································································· 247
6. 점자형 선거공보 관련 규정 위헌확인 사건 [2016. 12. 29. 선고 2016헌마548 공직선거법 제65조 제4항 위헌확인] ············ 253
7. 수형자 선거권 제한 사건 [2017. 5. 25. 선고 2016헌마292·568(병합) 공직선거법 제18조 제1항 제2호 등 위헌확인] ········· 255
제6장 청구권적 기본권 ························································································································ 257
제1절 청구권적 기본권의 구조와 체계 ·································································································· 257
제2절 청원권 ·········································································································································· 257
제3절 재판청구권 ··································································································································· 258
1. ‘공익사업법’ 상 보상금증감청구소송의 제소기간 조항 위헌소원 사건 [2016. 7. 28. 선고 2014헌바206 공익사업을 위한 토지
등의 취득 및 보상에 관한 법률 제85조 제1항 등 위헌소원] ···························································································· 258
2. 소송구조에 대한 재판의 관할법원 사건 [2016. 7. 28. 선고 2015헌마105 민사소송법 제128조 제3항 위헌확인] ············· 259
3. 경정청구기간 제한 위헌확인 사건 [2016. 10. 27. 선고 2015헌바195등 구 국세기본법 제45조의2 제1항 위헌소원] ·········· 261
4. 재판관 기피 제한 사건 [2016. 11. 24. 선고 2015헌마902 헌법재판소법 제24조 제4항 위헌확인] ···································· 262
5. 국민참여재판법 사건 [2016. 12. 29. 선고 2015헌바63 법원조직법 제32조 제1항 제3호 위헌소원] ··································· 264
6. 증인에 대한 차폐시설 사건 [2016. 12. 29. 선고 2015헌바221 형사소송법 제165조의2 제3호 위헌소원] ························· 265
7. 주세법상 의제주류판매업면허취소처분에 대한 행정소송에 관하여 필요적 행정심판전치주의가 적용된 사건 [2016. 12. 29.
선고 2015헌바229 국세기본법 제56조 제2항 등 위헌소원] ····························································································· 266
8. 민사소송법상 재심사유인 ‘판단누락’의 의미 사건 [2016. 12. 29. 선고 2016헌바43 민사소송법 제451조 제1항 제9호 위헌소원]
·············································································································································································· 269
제4절 형사보상청구권 ···························································································································· 270
제5절 국가배상청구권 ···························································································································· 270
제6절 범죄피해자구조청구권 ·················································································································· 270
제7장 사회적 기본권 ··························································································································· 271
제1절 인간다운 생활을 할 권리 ············································································································ 271
1. 개정된 공무원 퇴직연금 수급요건 조항의 적용대상을 제한한 부칙 규정 위헌확인 사건 [2017. 5. 25. 선고 2015헌마933 입법부작위
위헌확인 등] ····························································································································································· 271
제2절 교육을 받을 권리 ························································································································ 272
1. 공문서의 한글전용과 초·중등학교 한자교육 사건 [2016. 11. 24. 선고 2012헌마854 국어기본법 제3조 등 위헌확인] ··· 272
제3절 근로의 권리 및 근로3권 ·············································································································· 279
1. 근속기간 3월 미만의 일용근로자 해고예고 적용제외 규정 위헌확인 사건 [2017. 5. 25. 선고 2016헌마640 기본권 침해 위헌확인]
·············································································································································································· 279
제4절 환경권 ·········································································································································· 280
제5절 혼인과 가족생활의 보장 ·············································································································· 280
제6절 모성의 보호와 보건권 ·················································································································· 280
제8장 국민의 기본적 의무 ·················································································································· 280
제3편 통치구조론 ································································································································ 281
제1장 통치구조론의 이론적 기초와 체계 ···························································································· 281
제2장 통치구조의 구성원리 ················································································································· 281
제3장 통치구조의 형태 ························································································································ 281
제4장 국회 ··········································································································································· 281
1. 취득세 및 등록세가 감면되는 ‘주택’에 기숙사가 포함되지 않음을 전제로 취득세 및 등록세가 부과된 사건 [2016. 9. 29. 선고
2014헌바406 구 지방세법 제273조의2 위헌소원] ·············································································································· 282
제5장 대통령과 행정부 ························································································································ 284
제1절 대통령 ·········································································································································· 284
1. 동별 대표자 결격사유 위임 사건 [2016. 7. 28. 선고 2014헌바158, 174(병합) 주택법 제43조 제7항 위헌소원] ················ 284
2. 수입주류 과세표준 사건 [2016. 9. 29. 선고 2014헌바114 구 주세법 제21조 제2항 등 위헌소원] ···································· 285
3. 구 법인세법 상 소득처분 위임조항 위헌소원 사건 [2016. 9. 29. 선고 2014헌바332 구 법인세법 제67조 위헌소원] ······ 287
4. ‘학교보건법’상 학교환경위생 정화구역 내 금지조항 사건 [2016. 10. 27. 선고 2015헌바360, 2016헌바323(병합) 학교보건법 제6조
제1항 제19호 등 위헌소원] ········································································································································· 288
5. 영업자 등의 준수사항을 위임한 식품위생법 사건 [2016. 11. 24. 선고 2014헌가6, 2015헌가26(병합) 구 식품위생법 제97조 제6호
위헌제청 등] ····························································································································································· 291
6. 중소기업자간 경쟁입찰 참여제한 사건 [2016. 12. 29. 선고 2014헌바419 중소기업제품 구매촉진 및 판로지원에 관한 법률 제8조의2
제1항 제2호 위헌소원] ··············································································································································· 292
7. ‘공상군경’요건 관련 사건 [2016. 12. 29. 선고 2016헌바263 국가유공자 등 예우 및 지원에 관한 법률 제4조 제1항 제6호 등 위헌소원]
·············································································································································································· 293
8. 세월호피해지원법 사건 [2017. 6. 29. 선고 2015헌마654 4·16세월호참사 피해구제 및 지원 등을 위한 특별법 제6조 제3항 등 위헌확인]
·············································································································································································· 297
9. 법률의 위임의 근거가 없어 무효였던 법규명령이 법 개정으로 위임의 근거가 부여되면 그때부터 유효한 법규명령으로 볼
수 있는지 및 법규명령이 개정된 법률의 내용을 유추확장 하는 해석규정인 경우에도 마찬가지인지 여부 [대법원 2017. 4.
20. 선고 2015두45700 전원합의체 판결, 증여세부과처분취소] ························································································· 302
제2절 행정부 ·········································································································································· 304
제3절 선거관리위원회 ···························································································································· 304
제6장 법원 ··········································································································································· 304
1. 판사의 근무성적평정과 연임 결격 사건 [2016. 9. 29. 선고 2015헌바331 구 법원조직법 제45조의2 제2항 제2호 등 위헌소원]
··············································································································································································································304
제7장 헌법재판소 ································································································································· 306
제1절 헌법재판제도 ································································································································ 306
제2절 위헌법률심판 ································································································································ 306
제3절 탄핵심판 ······································································································································· 307
1. 대통령(박근혜) 탄핵사건 [2017. 3. 10. 선고 2016헌나1] ···························································································· 307
제4절 정당해산심판 ································································································································ 311
제5절 권한쟁의심판 ································································································································ 311
제6절 헌법소원심판 ································································································································ 311
1. 국세기본법상 신의성실의 원칙 사건 [2016. 10. 27. 선고 2012헌바280 구 국세기본법 제15조 위헌소원] ······················· 311
2. 총장직선제 개선 대학에 대한 재정지원 사건 [2016. 10. 27. 선고 2013헌마576 2012년도 대학교육역량강화사업 기본계획 취소
등] ··········································································································································································· 312
3. 총장직선제 개선요구 사건 [2016. 10. 27. 선고 2014헌마323 학칙시정요구 등 위헌확인] ··············································· 314
4. 교도소 수용자가 임의로 염색한 러닝셔츠 폐기 등 위헌확인 사건 [2016. 10. 27. 선고 2014헌마626 교도소 내 부당처우행위
위헌확인] ·································································································································································· 315
5. 전문대학의 간호조무 관련 학과 졸업자를 간호조무사 국가시험 응시자격 대상에서 제외하고 있는 의료법 제80조 제1항에
대한 위헌확인 사건 [2016. 10. 27. 선고 2016헌마262 의료법 제80조 제1항 위헌확인] ·················································· 319
6. 근로기준법상 근로자 정의조항에 관한 헌법소원 사건 [2016. 11. 24. 선고 2015헌바413, 414(병합) 근로기준법 제2조 제1항 제2호
위헌소원] ·································································································································································· 320
7. 공무원 의제 조항 사건 [2016. 11. 24. 선고 2013헌마403 특정범죄 가중처벌 등에 관한 법률 시행령 제3조 위헌확인] ······· 322
8. 특정 의약품 지급 부작위 위헌확인 사건 [2016. 11. 24. 선고 2015헌마11 공권력 행사 위헌확인] ································ 325
9. 조업구역을 벗어난 조업행위 처벌 사건 [2016. 12. 29. 선고 2013헌바436 수산업법 제97조 제1항 제2호 등 위헌소원] ··· 326
10. 경기도교육청 초등교사 승진규정 위헌확인 사건 [2016. 12. 29. 선고 2015헌마315 경기도교육청 초등교사 승진규정 위헌확인]
············································································································································································ 327
11. 고엽제 및 고엽제후유증환자의 정의규정에 관한 사건 [2016. 12. 29. 선고 2015헌마937 입법부작위 위헌확인] ·········· 329
12. 도시 및 주거환경정비법상 관리처분계획 인가 조항 등에 관한 헌법소원 사건 [2017. 5. 25. 선고 2016헌바373 도시 및 주거환경정
비법 제49조 제2항 등 위헌소원] ································································································································ 331
13. 2차 대전 직후 남한 내 일본화폐 등의 강제예입에 관한 미군정법령 제57호 위헌소원 사건 [2017. 5. 25. 선고 2016헌바388
재조선 미국육군사령부 군정청 법령 제57호 위헌소원] ··································································································· 333
14. 세월호 특별조사위원회 예산편성 사건 [2017. 5. 25. 선고 2016헌마383 예산편성 부작위 위헌확인] ···························· 334
Ⅱ. 민법판례
제1편 민법총칙
제1장 통칙 ··········································································································································· 336
제1절 민법일반, 법원 ····························································································································· 336
제2절 신의성실 ······································································································································· 336
1. 임차인이 작성한 무상임대차 확인서에서 비롯된 매수인의 신뢰가 매각절차에 반영되었는데 이후 매수인의 건물인도청구에
대하여 대항력 있는 임대차를 주장할 수 있는지 여부 [2016. 12. 1. 선고 2016다228215 판결, 건물명도] ··················· 336
2. 채권자가 유효하게 성립한 계약에 따른 급부의 이행을 청구하는 경우, 법원이 공평의 이념 또는 신의칙과 같은 일반원칙에
의하여 급부의 일부를 감축하는 것이 허용되는지 여부 [2016. 12. 1. 선고 2016다240543 판결, 채무부존재확인] ········ 337
3. 주택 경매절차의 매수인이 매각물건명세서에 기재되어 공시된 내용을 기초로 매수가격을 정하여 낙찰을 받아 소유권을
취득한 경우, 주택임차인이 1순위 근저당권자에게 무상거주확인서를 작성해 준 사실이 있어 임차보증금을 배당받지 못하게
되었다는 사정을 들어 매수인에게 주택임대차보호법상 대항력을 주장할 수 있는지 여부 [2017. 4. 7. 선고 2016다248431
판결, 건물명도] ·························································································································································· 338
제2장 인 ·············································································································································· 339
제1절 능력 ·············································································································································· 339
제2절 주소 ·············································································································································· 339
제3절 부재와 실종 ································································································································· 339
제3장 법인 ··········································································································································· 339
1. 비상근 또는 업무집행을 직접 담당하지 아니하는 이사에게 상근 임원의 전반적인 업무집행을 감시할 의무가 있는지 여부[2016.
8. 18. 선고 2016다200088 판결, 손해배상(기)] ················································································································· 339
제4장 물건 ··········································································································································· 340
제5장 법률행위 ···································································································································· 340
제1절 총칙 ·············································································································································· 340
1. 증언하는 것과 연계하여 급부를 하기로 약정하였는데 급부의 내용에 기존 채무의 변제를 위한 부분이 포함되어 있는 경우
약정의 효력 [2016. 10. 27. 선고 2016다25140 판결, 약정금] ······················································································ 340
2. 보험계약자가 다수의 보험계약을 통하여 보험금을 부정취득할 목적으로 체결한 보험계약의 효력 [2017. 4. 7. 선고 2014다
234827 판결, 계약무효확인등] ····································································································································· 341
제2절 의사표시 ······································································································································· 342
제3절 대리 ·············································································································································· 342
1. 무권대리의 추인에 관한 민법 제130조, 제133조 등을 무권리자의 추인에 유추 적용할 수 있는지 여부 [2017. 6. 8. 선고
2017다3499 판결, 근저당권말소등기등] ························································································································· 342
제4절 무효와 취소 ································································································································· 343
1. 공공건설임대주택의 임대사업자가 일방적으로 조건을 제시하여 체결한 임대차계약의 효력 및 무효행위의 전환 여부 [2016.
11. 18. 선고 2013다42236 전원합의체 판결, 건물인도등] ······························································································· 343
제5절 조건과 기한 ································································································································· 345
제6장 기간 ··········································································································································· 345
제7장 소멸시효 ···································································································································· 346
1. 회생절차 내에서 이루어진 변제기 유예 합의와 채무승인 [2016. 8. 29. 선고 2016다208303 판결, 임금] ························ 346
2. 이주대책대상자들이 사업시행자에게 공익사업법 위반을 이유로 구하는 부당이득반환청구권의 소멸시효기간 [2016. 9. 28. 선고
2016다20244 판결, 부당이득금반환] ································································································································ 346
3. 소멸시효의 완성을 주장하는 것이 권리남용으로서 허용될 수 없는 경우 [2016. 9. 30. 선고 2016다218713, 218720 판결, 채무부존재확
인·보험금지급] ···························································································································································· 347
4. 의료행위 주체가 환자에 대한 설명의무를 소홀히 한 경우 불법행위 성립 여부 및 불법행위로 인한 손해배상청구의 소멸시효와
관련하여 장애사유가 소멸한 때로부터 상당한 기간의 범위 [2017. 2. 15. 선고 2014다230535 판결, 손해배상(기)] ·········· 348
5. 당사자가 민법에 따른 소멸시효기간을 주장한 경우, 법원이 직권으로 상법에 따른 소멸시효기간을 적용할 수 있는지 여부
[2017. 3. 22. 선고 2016다258124 판결, 부동산잔대금등청구의소] ······················································································· 350
6. 공사도급계약에서 보수청구권의 지급시기 및 가압류에 의한 시효중단 효력의 발생시기 [2017. 4. 7. 선고 2016다35451 판결,
공사대금] ····································································································································································· 351
7. 기한이 있는 채권의 이행기가 도래한 후 채권자와 채무자가 기한을 유예하기로 합의한 경우, 소멸시효의 기산점 [2017. 4.
13. 선고 2016다274904 판결, 기타(금전)] ························································································································ 352
8. 압류에 의한 시효중단의 종료 시점 [2017. 4. 28. 선고 2016다239840 판결, 채무부존재확인] ··········································· 353
제2편 물권법
제1장 총칙 ··········································································································································· 354
1. 토지에 대한 등기와 대장과의 관계 [2017. 2. 21. 선고 2016다225353 판결, 공유물분할등] ·············································· 354
제2장 점유권 ······································································································································· 356
1. 점유자의 방해배제청구권 제척기간의 법적 성질 [2016. 7. 29. 선고 2016다214483, 214490 판결, 손해배상금] ················ 356
제3장 소유권 ······································································································································· 357
제1절 소유권의 한계 ······························································································································ 357
1. 대물변제 약정으로 소유권을 이전받게 되는 사람이 등기 경료 전에 부동산을 인도받아 점유 사용하는 경우 매도인이 매수인에
대하여 부당이득반환청구를 할 수 있는지 여부 [2016. 7. 7. 선고 2014다2662 판결, 임료] ········································ 357
2. 항공기가 토지의 상공을 통과하여 비행하는 등으로 토지의 사용·수익에 방해가 있음을 이유로 비행 금지 등 방해의 제거
또는 손해배상을 청구하기 위한 요건 [2016. 11. 10. 선고 2013다71098 판결, 손해배상(기)] ········································ 358
3. 도로소음과 참을 한도를 넘는 생활방해 인정 여부 [2016. 11. 25. 선고 2014다57846 판결, 방음설비설치] ·················· 359
4. 민법 제218조 제1항에서 정한 수도 등 시설권에 근거하여 시설공사를 시행하는 경우, 수도 등이 통과하는 토지 소유자의
동의나 승낙을 받아야 하는지 여부 [2016. 12. 15. 선고 2015다247325 판결, 토지사용승낙] ········································ 360
5. 주위토지통행권의 확인을 구하는 특정의 통로 부분 중 일부분이 민법 제219조에 정한 요건을 충족하는 경우 제한된 범위에서
청구를 인용할 수 있는지 여부 [2017. 1. 12. 선고 2016다39422 판결, 주위토지통행확인] ············································ 361
6. 구분소유권이 이미 성립한 집합건물이 증축되어 새로운 전유부분이 생긴 경우, 새로운 전유부분을 위한 대지사용권이 인정되
는지 여부 [2017. 5. 31. 선고 2014다236809 판결, 지료] ···························································································· 362
제2절 소유권의 취득 ······························································································································ 363
1. 등기부취득시효에서 무과실의 의미 [2016. 8. 24. 선고 2016다220679 판결, 소유권말소등기] ······································· 363
2. 부동산에 관하여 적법·유효한 등기를 마치고 소유권을 취득한 사람이 부동산을 점유하는 경우, 위 점유가 취득시효의
기초가 되는 점유인지 여부 [2016. 10. 27. 선고 2016다224596 판결, 제3자이의] ························································ 364
3. 소유권이전의 원인행위가 사해행위로 인정되어 취소되는 경우 수익자의 점유가 취득시효의 기초가 되는 점유인지 여부
[2016. 11. 25. 선고 2013다206313 판결, 부동산압류등기말소] ······················································································· 364
4. 자동차관리법이 적용되는 자동차의 소유권 취득을 ‘인도’에 의할 수 있는 경우 및 이때 민법 제249조의 선의취득 규정이
적용되는지 여부 [2016. 12. 15. 선고 2016다205373 판결, 소유권이전등록말소등] ························································· 365
5. 20년간 소유의 의사로 평온, 공연하게 집합건물을 구분소유한 사람은 등기함으로써 대지의 소유권을 취득할 수 있는지
여부 및 구분소유자들이 보유하게 되는 대지사용권의 범위 [2017. 1. 25. 선고 2012다72469 판결, 소유권이전등기절차이행]
·············································································································································································· 366
제3절 공동소유 ······································································································································· 368
1. 공유지분 포기의 법적 성질 및 등기의 필요 여부 [2016. 10. 27. 선고 2015다52978 판결, 부당이득금반환] ················· 368
제4절 명의신탁 ······································································································································· 368
1. 계약명의신탁의 매매당사자 [2016. 7. 22. 선고 2016다207928 판결, 사해행위취소] ······················································ 368
2. 부부간 명의신탁과 사해행위 [2016. 7. 29. 선고 2015다56086 판결, 사해행위취소] ······················································ 369
제4장 지상권 ······································································································································· 370
1. 분묘기지권의 시효취득과 관습법 [2017. 1. 19. 선고 2013다17292 전원합의체 판결, 분묘철거 등] ···································· 370
제5장 지역권 ······································································································································· 372
제6장 전세권 ······································································································································· 372
제7장 유치권 ······································································································································· 372
제8장 질권 ··········································································································································· 372
제9장 저당권 ······································································································································· 373
1. 저당부동산에 관한 차임채권 등에 저당권의 효력이 미치는지 여부 [2016. 7. 27. 선고 2015다230020 판결, 배당이의] ··· 373
2. 공동저당권이 설정된 수 개의 부동산 중 일부는 채무자 소유이고 다른 일부는 물상보증인 소유인 경우, 채무자 또는 물상보증인
소유의 부동산이 부담하는 피담보채권액을 산정하는 방법 [2016. 8. 18. 선고 2013다90402 판결, 사해행위취소] ············ 374
3. 공동저당에 제공된 채무자 소유의 부동산과 물상보증인 소유의 부동산 가운데 물상보증인 소유의 부동산이 먼저 경매되어
매각대금에서 선순위공동저당권자가 변제를 받은 경우, 채무자가 물상보증인에 대한 반대채권으로 물상보증인의 구상금 채권과
상계함으로써 물상보증인 소유의 부동산에 대한 후순위저당권자에게 대항할 수 있는지 여부 [2017. 4. 26. 선고 2014다221777
판결, 근저당권이전등기] ·················································································································································· 375
제10장 비전형담보물권 ························································································································ 377
1. 매매대금 채무를 담보하기 위하여 가등기를 하는 경우 채무를 변제하지 아니하면 본등기를 마치기로 한 약정의 의미 [2016.
10. 27. 선고 2015다63138 판결, 가등기에기한본등기절차이행·가등기말소등기절차이행] ························································ 377
2. 가등기담보 등에 관한 법률 제3조, 제4조를 위반하여 청산절차를 거치지 않고 이루어진 무효인 본등기가 나중에 청산절차를
마치면 실체관계에 부합하는 유효한 등기가 되는지 여부 [2017. 5. 17. 선고 2017다202296 판결, 소유권이전등기말소] ··· 378
제3편 채권총론
제1장 채권의 목적 ······························································································································· 379
제2장 채권의 효력 ······························································································································· 379
제1절 채무불이행과 그 구제방법 ··········································································································· 379
1. 기업인수를 위한 주식 매매에서 이행보증금의 성질 [2016. 7. 14. 선고 2012다65973 판결, 기타(금전)] ······················· 379
2. 방위사업청의 물품제조·구매 표준계약 특수조건에서 정한 부당이득반환을 청구할 수 있는 권리 및 가산금의 법적 성격
및 [2016. 7. 14. 선고 2013다82944, 82951 판결, 채무부존재확인·부당이득금반환등] ······················································ 380
3. 화재로 인한 매매목적물 인도의무의 이행불능과 대상청구권의 대상 [2016. 10. 27. 선고 2013다7769 판결, 손해배상(기)] ·
·············································································································································································· 384
4. 채권자가 계약의 이행으로 얻을 수 있는 이익이 인정되지 않는 경우, 지출비용의 배상을 청구할 수 있는지 여부 [2017.
2. 15. 선고 2015다235766 판결, 손해배상청구의소] ······································································································ 384
5. 국가가 확정된 형사보상금의 지급을 지체하는 경우 지연손해금을 가산하여 지급하여야 하는지 및 국가로서는 형사보상금에
관한 예산이 부족함을 들어 지체를 정당화할 수 있는지 여부 [2017. 5. 30. 선고 2015다223411 판결, 지연이자청구] · 385
6. 금전채무에 관하여 이행지체에 대비한 지연손해금 비율을 따로 약정한 경우, 민법 제398조에서 정한 손해배상액의 예정으로
서 감액의 대상이 되는지 여부 [2017. 5. 30. 선고 2016다275402 판결, 기타(금전)] ····················································· 386
제2절 책임재산의 보전 ·························································································································· 387
1. 집합채권의 양도담보의 예약이 체결된 다음 예약완결권의 행사에 기하여 채권이 양도된 경우, 사해행위 여부를 판단하는
기준 시점 [2016. 7. 14. 선고 2014다233268 판결, 사해행위취소] ················································································· 387
2. 파산채권자의 파산선고 이전에 제기한 채권자취소소송을 파산관재인이 수계한 경우 제척기간 준수 여부 기준 [2016. 7.
29. 선고 2015다33656 판결, 사해행위취소] ·················································································································· 388
3. 위탁자의 담보신탁계약상의 수익권을 소멸하게 하는 처분행위가 사해행위에 해당하는지 여부 [2016. 11. 25. 선고 2016다20732
판결, 사해행위취소] ···················································································································································· 389
4. 저당권의 피담보채권액이 목적물의 가액을 초과하였으나 채무자가 목적물을 양도하기에 앞서 자신의 출재로 피담보채무의
일부를 변제하여 잔존 피담보채권액이 목적물의 가액을 초과하지 않게 된 경우, 사해행위가 성립하는지 여부 [2017. 1. 12.
선고 2016다208792 판결, 사해행위취소] ······················································································································ 390
5. 부동산에 대한 채권자취소의 효력 및 원상회복의 방법 [2017. 3. 9. 선고 2015다217980 판결, 소유권이전등기] ·········· 391
6. 수익자가 제기한 소송에서 자백하는 등의 방법으로 패소판결 또는 그와 같은 취지의 화해권고결정 등을 받아 확정시키고,
이에 따라 수익자 앞으로 책임재산에 대한 소유권이전등기 등이 마쳐진 경우, 채무자와 수익자 사이의 이전합의가 사해행위가
되는지 여부 [2017. 4. 7. 선고 2016다204783 판결, 구상금및사해행위취소] ··································································· 392
7. 건축주명의변경 약정이 사해행위가 되는지 여부 [2017. 4. 27. 선고 2016다279206 판결, 사해행위취소] ······················ 393
8. 책임재산을 산정할 때 각 부동산이 부담하는 피담보채권액을 산정하는 방법 [2017. 5. 30. 선고 2017다205073 판결, 사해행위취소]
·············································································································································································· 393
9. 국가가 조세채권을 피보전채권으로 하여 체납자의 법률행위를 대상으로 채권자취소권을 행사하는 경우, 국가가 취소원인을
알았는지는 조세채권의 업무를 담당하는 세무공무원의 인식을 기준으로 판단하여야 하는지 여부 [2017. 6. 15. 선고 2015다
247707 판결, 사해행위취소] ······································································································································· 395
제3장 수인의 채권자 및 채무자 ········································································································· 396
1. 연대보증인이 주채무자의 채무 중 일정 범위에 대하여 보증을 한 후 주채무자가 일부변제한 경우 연대보증인이 부담하는
보증책임의 범위 [2016. 8. 25. 선고 2016다2840 판결, 대여금] ······················································································· 396
2. 회생채권이 소멸시효기간 경과 전에 실권된 경우 보증인이 주채무의 소멸시효 완성을 원용할 수 있는지 여부 [2016. 11. 9.
선고 2015다218785 판결, 손해배상(건)] ··························································································································· 396
3. ‘분할 또는 분할합병으로 인하여 설립되는 회사 또는 존속하는 회사’와 ‘분할 또는 분할합병 전의 회사’가 부담하는 연대책임의
법적 성질 [2017. 5. 30. 선고 2016다34687 판결, 대여금] ······························································································· 397
제4장 채권의 양도와 채무의 인수 ······································································································ 398
1. 처분권한 없는 자가 지명채권을 양도한 경우, 채권양도로서 효력을 가지는지 여부 [2016. 7. 14. 선고 2015다46119 판결, 양수금]
·················································································································································································· 398
2. 이행인수인의 채무승인의 효력 [2016. 10. 27. 선고 2015다239744 판결, 대여금] ···························································· 399
제5장 채권의 소멸 ······························································································································· 400
1. 민법 제472조에서 정한 ‘채권자가 이익을 받은’ 경우에 무권한자의 변제수령을 채권자가 사후에 추인한 때와 같이 무권한자의
변제수령을 채권자의 이익으로 돌릴 만한 실질적 관련성이 인정되는 경우가 포함되는지 여부 [2016. 7. 14. 선고 2015다71856,
71863 판결, 추심금등·사해행위취소] ······························································································································ 400
2. 고의에 의한 행위가 불법행위와 채무불이행을 동시에 구성하여 불법행위로 인한 손해배상채권과 채무불이행으로 인한 손해배상
채권이 경합하는 경우, 민법 제496조 유추적용 가능 여부 [2017. 2. 15. 선고 2014다19776, 19783 판결, 약정금등·손해배상(기)]
·················································································································································································· 401
제4편 채권각론
제1장 계약의 성립과 효력 ·················································································································· 404
1. 명시·설명의무의 대상이 되는 보험계약의 중요한 내용이 되는 약관조항 [2016. 9. 23. 선고 2016다221023 판결, 채무부존재확인]
·················································································································································································· 404
2. 계약 체결 후 계약 내용과 다른 사항이 포함된 문서를 일방 당사자가 송부하고 상대방이 이의를 제기하지 않은 경우, 계약
내용이 변경되었다고 볼 수 있는지 여부 [2016. 10. 27. 선고 2014다88543, 88550 판결, 매매대금·물품대금] ················· 405
3. 계약이 성립하기 위하여 당사자 사이에 ‘의사의 합치’가 이루어져야 하는 정도 [2017. 5. 30. 선고 2015다34437 판결, 분양대금반환등]
·················································································································································································· 406
제2장 계약의 해지, 해제 ····················································································································· 407
1. 계약에 특별히 해제권 관련 조항을 둔 경우 이행 최고 없이 곧바로 계약해제를 통보할 수 있는지 여부 [2016. 12. 15. 선고
2014다14429, 14436 판결, 부당이득금·물품대금] ············································································································ 407
2. 사정변경을 이유로 계약을 해제하거나 해지할 수 있는 경우 및 여기에서 말하는 ‘사정’의 의미 [2017. 6. 8. 선고 2016다249557
판결, 손해배상(기)] ························································································································································· 408
제3장 각종의 계약 ······························································································································· 409
제1절 증여 ·············································································································································· 409
제2절 매매, 환매 ···································································································································· 410
1. 매도인의 담보책임의 경매에 관한 특칙 [2016. 8. 24. 선고 2014다80839 판결, 손해배상] ··········································· 410
2. 당사자 사이에 약정하는 예약 완결권의 행사기간에 특별한 제한이 있는지 여부 [2017. 1. 25. 선고 2016다42077 판결, 소유권이전청
구권가등기말소] ························································································································································· 410
3. 매매계약이 무효로 되는 때에 매도인이 악의의 수익자인 경우의 매매대금 반환 범위 [2017. 3. 9. 선고 2016다47478 판결,
매매대금반환] ···························································································································································· 411
제3절 교환, 소비대차, 사용대차 ············································································································ 411
제4절 임대차 ·········································································································································· 412
1. 외국인등록이나 국내거소신고가 주택임대차의 대항력 취득 요건인 주민등록과 동일한 법적 효과가 인정되는지 및 가족의
것도 포함되는지 여부 [2016. 10. 13. 선고 2014다218030, 218047 판결, 건물인도등청구의소·임대차보증금] ·················· 412
2. 임대차 존속 중 차임채권의 소멸시효가 완성된 후 임대인이 소멸시효가 완성된 차임채권을 자동채권으로 삼아 임대차보증금
반환채무와 상계할 수 있는지 및 민법 제495조의 유추적용에 의하여 연체차임을 임대차보증금에서 공제할 수 있는지 여부
[2016. 11. 25. 선고 2016다211309 판결, 건물명도] ······································································································ 413
3. 임대차계약상의 권리의무를 포괄적으로 양도하는 경우, 임대차보증금 반환채권에 관하여 양수인의 지위와 양립할 수 없는
법률상의 지위를 취득한 제3자에 대하여 대항하기 위한 요건 [2017. 1. 25. 선고 2014다52933 판결, 추심금등] ········ 414
4. 임대인이 임대차계약 존속 중 기한의 이익을 포기하고 임대차보증금반환채권을 수동채권으로 하여 상계할 수 있는지 여부
[2017. 3. 15. 선고 2015다252501 판결, 채무부존재확인] ······························································································· 416
5. 임차건물의 양수인이 건물 소유권을 취득한 후 임대차관계가 종료되어 임차인에게 임대차보증금을 반환해야 하는 경우,
임대인의 지위를 승계하기 전까지 발생한 연체차임이나 관리비 등이 임대차보증금에서 당연히 공제되는지 여부 [2017. 3.
22. 선고 2016다218874 판결, 건물명도] ······················································································································ 418
6. 토지 소유자가 아닌 제3자가 임대차계약의 당사자로서 토지를 임대한 경우, 토지 소유자가 지상물매수청구권의 상대방이
될 수 있는지 여부 [2017. 4. 26. 선고 2014다72449, 72456 판결, 토지인도등·지상물매수청구] ····································· 419
7. 임차인이 임대인 소유 건물의 일부를 임차하여 사용·수익하던 중 임차 건물 부분에서 화재가 발생하여 임차 외 건물 부분까지
불에 타 그로 인해 임대인에게 재산상 손해가 발생한 경우에, 건물의 규모와 구조로 볼 때 건물 중 임차 건물 부분과 그
밖의 부분이 상호 유지·존립함에 있어서 구조상 불가분의 일체를 이루는 관계에 있을 시 임대인이 주장·증명해야 할
사항 [2017. 5. 18. 선고 2012다86895 전원합의체 판결, 손해배상(기)] ············································································ 420
제5절 고용, 도급, 여행계약 ··················································································································· 423
1. 수급인의 완성된 건물의 하자에 대한 하자담보책임 [2016. 8. 18. 선고 2014다31691, 31707 판결, 공사대금·공사잔대금] ·
·············································································································································································· 423
2. 하수급인이 수급인에 대하여 민법 제666조에 따른 저당권설정청구권을 가지는지 여부 및 저당권설정청구권의 소멸시효기간
[2016. 10. 27. 선고 2014다211978 판결, 근저당권설정등기] ·························································································· 424
3. 건축공사도급계약이 중도해제된 경우 도급인과 수급인 사이의 법률관계 [2017. 1. 12. 선고 2014다11574 판결, 손해배상(기)]
·············································································································································································· 425
제6절 현상광고, 위임, 임치 ··················································································································· 426
1. 파기환송 된 항소심 사건 소송대리인의 위임사무의 범위 [2016. 7. 7. 선고 2014다1447 판결, 성공보수금] ················ 426
제7절 조합 ·············································································································································· 427
1. 공동이행방식의 공동수급체의 법적 성질 [2016. 7. 14. 선고 2015다233098 판결, 조합결의무효확인] ···························· 427
2. 다른 조합원의 동의 없이 각자 지분을 자유로이 양도할 수 있도록 조합원 상호 간에 약정하거나 사후적으로 지분 양도를
인정하는 합의가 유효한지 여부 [2016. 8. 30. 선고 2014다19790 판결, 이익배당금] ···················································· 427
제8절 종신정기금, 화해 ························································································································· 428
제4장 사무관리 ···································································································································· 428
제5장 부당이득 ···································································································································· 429
1. 수익자의 악의 인정을 위한 패소한 때의 의미 [2016. 7. 29. 선고 2016다220044 판결, 자동차소유권이전등록청구] ··········· 429
2. 농지임대차가 구 농지법에 위반되어 계약의 효력을 인정받을 수 없는 경우, 농지 임대인이 임대차기간 동안 임차인의 권원
없는 점용을 이유로 손해배상을 청구한 데 대하여 임차인이 불법원인급여의 법리를 이유로 반환을 거부할 수 있는지 여부
[2017. 3. 15. 선고 2013다79887, 79894 판결, 토지인도등·손해배상] ················································································ 430
3. 부당이득반환의무의 지체책임이 발생하는 시기 [2017. 3. 30. 선고 2016다253297 판결, 손해배상등] ······························ 432
4. 임용행위가 당연무효이거나 취소된 공무원의 임용 시부터 퇴직 시까지의 사실상의 근로에 대하여 국가 또는 지방자치단체가
부당이득반환의무를 지는지 여부 [2017. 5. 11. 선고 2012다200486 판결, 부당이득금반환] ·············································· 433
제6장 불법행위 ···································································································································· 435
1. 순환거래구조에서의 사용자책임 인정 여부 [2016. 7. 14. 선고 2013다69286 판결, 물품대금등] ······································· 435
2. 방조로 인한 공동불법행위책임 [2016. 8. 29. 선고 2016다211156 판결, 건물인도] ·························································· 436
3. 불법행위로 인한 손해액 중 장래에 얻을 수 있는 이익 [2016. 9. 30. 선고 2015다19117 판결, 손해배상·손해배상] ········ 437
4. 학교안전법에 의한 공제급여 지급책임에 과실상계 이론이나 손해배상책임의 범위를 제한하는 법리가 적용되는지 여부 [2016.
10. 19. 선고 2016다208389 전원합의체 판결, 유족급여등] ································································································· 438
5. 국가를 당사자로 하는 시설공사계약에서 국가가 고지의무를 위반하여 낙찰자에게 계약금액을 초과하는 공사비를 지출하게
하는 등으로 손해를 입힌 경우 국가의 손해배상책임 인정 여부 [2016. 11. 10. 선고 2013다23617 판결, 손해배상(기)] ··· 441
6. 사용자책임을 부담하여 손해를 입은 경우 피용자에 대하여 행사할 수 있는 구상권의 범위 및 구상권 제한의 법리 [2017. 4.
27. 선고 2016다271226 판결, 구상금] ····························································································································· 442
7. 불법행위로 훼손된 물건을 수리한 후에도 수리가 불가능한 부분이 남아있는 경우, 수리비 외에 수리불능으로 인한 교환가치의
감소액도 통상의 손해에 해당하는지 여부 [2017. 5. 17. 선고 2016다248806 판결, 손해배상(기)] ····································· 443
제5편 친족법
제1장 총칙, 가족의 범위와 자의 성과 본 ·························································································· 444
제2장 혼인과 이혼 ······························································································································· 444
제3장 부모와 자(친생자·양자·친권) ································································································ 444
제4장 후견 ··········································································································································· 444
1. 민법 제959조의20 제1항이 본인에 대해 한정후견개시심판 청구가 제기된 후 심판이 확정되기 전에 후견계약이 등기된 경우에도
적용되는지 여부 [2017. 6. 1.자 2017스515 결정, 성년후견개시] ······················································································ 444
제5장 부양 ··········································································································································· 445
제6편 상속법
제1장 상속 ··········································································································································· 446
1. 북한주민의 상속회복청구권의 제척기간 [2016. 10. 19. 선고 2014다46648 전원합의체 판결, 상속재산회복] ······················· 446
2. 상속포기의 효력발생시기와 상속의 단순승인 [2016. 12. 29. 선고 2013다73520 판결, 대여금] ······································· 448
3. 상속포기의 효력이 피상속인을 피대습자로 하여 개시된 대습상속에 미치는지 여부 [2017. 1. 12. 선고 2014다39824 판결, 구상금]
·················································································································································································· 448
제2장 유언 ··········································································································································· 449
제3장 유류분 ······································································································································· 449
