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상법강의(상)
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상법강의(상)

  • 정찬형
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  • 박영사
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  • 2018-03-05 출간
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  • 1520페이지
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  • 180 X 253 X 63 mm /2189g
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  • ISBN 9791130331874
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목차


주요목차
상법강의(상)
제 1 편 총 칙
제 1 장 서 론 ? 3
제 1 절 상법의 개념···································································································3
제 2 절 상법의 지위·································································································12
제 3 절 각국의 상법·································································································22
제 4 절 상법의 이념과 특성····················································································29
제 5 절 상법의 법원과 효력····················································································36
제 2 장 상 인(기업의 주체) ? 56
제 1 절 상인의 의의·································································································56
제 2 절 상인자격의 취득과 상실·············································································75
제 3 절 영업능력······································································································80
제 4 절 영업의 제한·································································································83
제 3 장 상업사용인(기업의 경영보조자) ? 86
제 4 장 상 호(기업의 명칭) ? 112
제 5 장 상 업 장 부 ? 139
제 6 장 영 업 소 ? 148
제 7 장 상업등기(기업의 공시) ? 151
제 8 장 영업양도(기업의 이전) ? 169
-xxix-
xxx 주요목차
제 2 편 상 행 위
제 1 장 서 론 ? 203
제 2 장 통 칙 ? 213
제 1 절 서 설···································································································213
제 2 절 민법 총칙편에 대한 특칙··········································································213
제 3 절 민법 물권편에 대한 특칙··········································································219
제 4 절 민법 채권편에 대한 특칙··········································································225
제 5 절 유가증권에 관한 규정···············································································254
제 6 절 상호계산····································································································256
제 7 절 익명조합····································································································265
제 8 절 합자조합····································································································277
제 3 장 각 칙 ? 292
제 1 절 대 리 상·····································································································292
제 2 절 중 개 업·····································································································303
제 3 절 위탁매매업································································································312
제 4 절 운송주선업································································································326
제 5 절 운 송 업·····································································································343
제 1 관 총 설 ? 제 2 관 물건운송 ? 제 3 관 여객운송
제 6 절 공중접객업································································································391
제 7 절 창 고 업·····································································································397
제 8 절 금융리스업································································································409
제 9 절 가 맹 업·····································································································422
제10절 채권매입업·································································································431
주요목차 xxxi
제 3 편 회 사
제 1 장 총 설 ? 443
제 2 장 회사법통칙 ? 458
제 1 절 회사의 개념·······························································································458
제 2 절 회사의 설립·······························································································489
제 3 절 회사의 기구변경(구조조정)·····································································500
제 4 절 회사의 해산 · 청산 · 해산명령(판결) · 계속·············································547
제 3 장 합 명 회 사 ? 560
제 1 절 총 설···································································································560
제 2 절 설 립···································································································561
제 3 절 기 구···································································································563
제 1 관 총 설 ? 제 2 관 내부관계 ? 제 3 관 외부관계
제 4 절 기구변경····································································································588
제 1 관 정관변경 ? 제 2 관 사원변경(입사 · 퇴사) ?
제 3 관 합 병 ? 제 4 관 조직변경
제 5 절 해산과 청산·······························································································595
제 1 관 해 산 ? 제 2 관 청 산
제 4 장 합 자 회 사 ? 602
제 1 절 총 설···································································································602
제 2 절 설 립····································································································603
제 3 절 기 구···································································································604
제 1 관 내부관계 ? 제 2 관 외부관계
제 4 절 기구변경····································································································610
제 1 관 정관변경 ? 제 2 관 사원변경(입사 · 퇴사)
제 3 관 합 병 ? 제 4 관 조직변경
제 5 절 해산과 청산·······························································································612
제 1 관 해 산 ? 제 2 관 청 산
xxxii 주요목차
제 5 장 유한책임회사 ? 613
제 1 절 총 설···································································································613
제 2 절 설 립···································································································619
제 3 절 기 구···································································································622
제 1 관 총 설 ? 제 2 관 내부관계 ? 제 3 관 외부관계
제 4 절 기구변경····································································································633
제 1 관 정관변경 ? 제 2 관 사원변경(가입〈입사〉 및 탈퇴〈퇴사〉) ?
제 3 관 합 병 ? 제 4 관 조직변경
제 5 절 회사의 회계·······························································································638
제 6 절 해산과 청산·······························································································642
제 1 관 해 산 ? 제 2 관 청 산
제 6 장 주 식 회 사 ? 644
제 1 절 총 설···································································································644
제 2 절 주식회사의 설립·······················································································653
제 1 관 총 설 ? 제 2 관 실체형성절차 ? 제 3 관 설립등기 ?
제 4 관 설립하자(무효) ? 제 5 관 설립에 관한 책임
제 3 절 주식과 주주·······························································································704
제 1 관 주 식 ? 제 2 관 주 주 ? 제 3 관 주권과 주주명부 ?
제 4 관 주식의 양도 ? 제 5 관 주식의 담보 ? 제 6 관 주식의 소각 ?
제 7 관 주식의 포괄적 교환 및 이전 ?
제 8 관 지배주주에 의한 소수주식의 강제매수
제 4 절 기 관···································································································852
제 1 관 총 설
제 2 관 주주총회(기본사항의 의결기관) ?
제 3 관 이사회 · 대표이사 또는 집행임원(업무집행기관) ?
제 4 관 감사(監事) · 감사위원회 · 검사인 · (외부)감사인 · 준법지원인 · 준법감시인(감사기관) ?
제 5 절 자본금의 증감(변동)···············································································1118
제 1 관 총 설 ? 제 2 관 자본금의 증가(신주발행) ?
제 3 관 자본금의 감소(감자〈減資〉)
제 6 절 정관의 변경·····························································································1176
제 7 절 회사의 회계·····························································································1181
제 8 절 사 채·································································································1232
제 1 관 일반사채 ? 제 2 관 특수사채
제 9 절 조직변경 · 합병 및 분할··········································································1298
주요목차 xxxiii
제10절 해산과 청산······························································································1308
제 7 장 유 한 회 사 ? 1315
제 1 절 총 설·································································································1315
제 2 절 설 립·································································································1318
제 3 절 사원의 지위·····························································································1322
제 4 절 회사의 관리·····························································································1325
제 5 절 정관의 변경(자본금의 증감)··································································1335
제 6 절 합병과 조직변경·····················································································1339
제 7 절 해산과 청산·····························································································1340
제 8 장 외 국 회 사 ? 1341
제 9 장 벌 칙 ? 1345
상법강의(하)
제 4 편 어음법 · 수표법
제 5 편 보 험
제 6 편 해 상
제 7 편 항공운
세부목차
제 1 편 총 칙
제 1 장 서 론
제 1 절 상법의 개념 3
제 1 총 설·············································································································3
제 2 실질적 의의의 상법····························································································4
1. 총 설········································································································4
2. 상의 개념·······································································································4
⑴ 경제상의 상 ? ⑵ 법률상의 상
3. 상법의 대상론································································································5
⑴ 통일적 파악을 부정하는 견해 ? ⑵ 통일적 파악을 긍정하는 견해
4. 실질적 의의의 상법·······················································································7
⑴ 상법은 「기업」에 관한 법 ? ⑵ 상법은 기업에 관한 「사법(商私法)」 ?
⑶ 상법은 기업에 관한 「특별」사법 ? ⑷ 상법은 기업에 「관한」 특별사법
제 3 형식적 의의의 상법··························································································11
제 4 양자의 관계·······································································································12
1. 양자의 범위와 불일치·················································································12
2. 양자의 관련··································································································12
제 2 절 상법의 지위 12
제 1 서 설···········································································································12
제 2 상법과 민법과의 관계·······················································································12
1. 민상이법(民商二法) 통일론(상법의 형식적 자주성)···································12
⑴ 통일론의 발단 ? ⑵ 통일론의 이유와 비판
2. 민법의 상화(商化)와 상법(상법의 실질적 자주성)·····································14
⑴ 민법의 상화현상 ? ⑵ 상법의 실질적 자주성
제 3 상법과 노동법과의 관계···················································································16
1. 상법과 노동법의 분리·················································································16
2. 상법과 노동법의 접근·················································································17
-xxxiv-
세부목차 xxxv
제 4 상법과 경제법과의 관계···················································································18
1. 경제법의 발생······························································································18
2. 경제법의 의의······························································································18
⑴ 소 극 설 ? ⑵ 적 극 설
3. 상법과의 관계······························································································19
⑴ 분리설(대립설) ? ⑵ 합일설(통합설)
제 5 상법과 어음법 · 수표법과의 관계·····································································21
제 6 상법과 기타의 법과의 관계··············································································21
제 3 절 각국의 상법 22
제 1 프랑스법계········································································································22
1. 프 랑 스········································································································22
2. 이탈리아·······································································································23
3. 기 타······································································································23
제 2 독일법계 ···········································································································23
1. 독 일······································································································23
2. 오스트리아···································································································25
3. 스 위 스········································································································25
4. 일 본······································································································25
5. 기 타······································································································25
제 3 영미법계············································································································26
1. 영 국······································································································26
2. 미 국······································································································26
3. 캐 나 다········································································································27
4. 호 주······································································································27
제 4 상사에 관한 국제조약·······················································································28
제 4 절 상법의 이념과 특성 29
제 1 상법의 이념·······································································································29
1. 기업의 유지강화··························································································29
⑴ 영리성의 보장 ? ⑵ 자본집중의 촉진 ? ⑶ 자금조달의 원활화 ?
⑷ 인력의 보충 ? ⑸ 위험부담의 완화 ? ⑹ 기업의 독립성의 확보 ?
⑺ 소유와 경영의 분리 ? ⑻ 기업소멸의 회피
2. 기업활동의 왕성과 거래의 안전·································································31
⑴ 기업활동의 왕성 ? ⑵ 거래의 안전
xxxvi 세부목차
제 2 상법의 특성(경향)····························································································35
1. 유동적 · 진보적 경향···················································································35
2. 세계적 · 통일적 경향···················································································35
제 5 절 상법의 법원과 효력 36
제 1 상법의 법원(法源)····························································································36
1. 상법의 법원의 의의와 상사에 관하여 적용될 법규···································36
2. 상법의 법원의 종류·····················································································37
⑴ 상사제정법 ? ⑵ 상관습법 ? ⑶ 상사자치법 ? ⑷ 보통거래약관 ?
⑸ 상사판례법 · 상사학설법 ? ⑹ 조 리
3. 법규적용의 순서··························································································51
⑴ 상법전과 상관습법 ? ⑵ 상관습법과 민법전 ? ⑶ 상법전과 민법전
제 2 상법의 효력(적용범위)·····················································································53
1. 때(시)에 관한 효력······················································································53
2. 곳(장소)에 관한 효력···················································································54
3. 사람(인)에 관한 효력··················································································54
4. 사항에 관한 효력·························································································54
제 2 장 상 인(기업의 주체)
제 1 절 상인의 의의 56
제 1 총 설···········································································································56
1. 서 설······································································································56
2. 상인에 관한 입법주의·················································································56
⑴ 실질주의(상행위법주의 · 객관주의 · 상사법주의) ?
⑵ 형식주의(상인법주의 · 주관주의 · 상업법주의) ?
⑶ 절충주의
3. 우리 상법의 입법주의·················································································57
⑴ 절충주의의 입법이라는 견해 ? ⑵ 형식주의의 입법이라는 견해 ?
⑶ 형식주의에 가까운 절충주의의 입법이라는 견해
제 2 당연상인············································································································59
1. 의 의······································································································59
⑴ 「자기명의」로 상행위를 하여야 한다 ? ⑵ 「상행위」를 하여야 한다
2. 당연상인의 개념의 기초가 되는 상행위·····················································61
⑴ 기본적 상행위(영업적 상행위) ? ⑵ 특별법상의 상행위
세부목차 xxxvii
제 3 의제상인(형식에 의한 상인)············································································70
1. 의 의······································································································70
2. 설비상인·······································································································71
⑴ 상인적 설비 ? ⑵ 상인적 방법
3. 민사회사·······································································································73
제 4 소상인(간이기업)·····························································································73
1. 소상인제도···································································································73
2. 소상인의 의의······························································································74
3. 소상인에게 적용되지 않는 상법의 규정·····················································74
제 2 절 상인자격의 취득과 상실 75
제 1 총 설···········································································································75
1. 상인능력·······································································································75
2. 상인자격(상인적격성)··················································································75
3. 영업능력·······································································································75
제 2 자연인의 상인자격····························································································76
1. 상인자격의 취득··························································································76
2. 상인자격의 상실··························································································77
제 3 법인의 상인자격································································································78
1. 상인자격의 취득··························································································78
⑴ 사 법 인 ? ⑵ 공 법 인
2. 상인자격의 상실··························································································80
제 3 절 영업능력 80
제 1 총 설···········································································································80
제 2 미성년자············································································································80
1. 미성년자가 스스로 영업을 하는 경우························································80
2. 법정대리인이 영업을 대리하는 경우··························································81
3. 미성년자가 인적회사의 무한책임사원인 경우···········································81
제 3 피한정후견인·····································································································82
제 4 피성년후견인·····································································································82
제 4 절 영업의 제한 83
제 1 총 설···········································································································83
제 2 사법상 제한·······································································································83
1. 계약에 의한 제한·························································································83
xxxviii 세부목차
2. 법률에 의한 제한·························································································83
제 3 공법상 제한·······································································································84
1. 공익상 및 국가재정상 이유에서 받는 제한················································84
2. 경찰상 이유에서 받는 제한·········································································84
3. 국민경제상 이유에서 받는 제한·································································84
4. 특수신분상 이유에서 받는 제한·································································84
제 3 장 상업사용인(기업의 경영보조자)
제 1 총 설···········································································································86
1. 상업사용인제도의 목적···············································································86
2. 상업사용인의 의의와 종류··········································································87
⑴ 상업사용인의 의의 ? ⑵ 상업사용인의 종류
제 2 지 배 인·············································································································88
1. 지배인의 의의······························································································88
2. 지배인의 선임 · 종임···················································································89
⑴ 선 임 ? ⑵ 종 임 ? ⑶ 등 기
3. 지배인의 권한(지배권)················································································91
⑴ 지배권의 내용 ? ⑵ 지배권의 범위(영역)
4. 공동지배인···································································································94
⑴ 의 의 ? ⑵ 능동대리(적극대리) ? ⑶ 수동대리(소극대리) ?
⑷ 등 기
5. 표현지배인···································································································96
⑴ 의 의 ? ⑵ 요 건 ? ⑶ 효 과
제 3 부분적 포괄대리권을 가진 상업사용인···························································99
1. 의 의······································································································99
2. 선임 · 종임··································································································100
3. 대리권의 범위····························································································101
4. 공동대리인 및 표현대리인········································································101
제 4 물건판매점포사용인(의제상업사용인)··························································103
1. 의 의····································································································103
2. 선임 · 종임··································································································103
3. 적용범위·····································································································104
⑴ 장소적 제한 ? ⑵ 업무적 제한 ? ⑶ 악의의 자에 대한 제한
세부목차 xxxix
제 5 상업사용인의 의무(부작위의무, 광의의 경업피지의무)·······························105
1. 총 설····································································································105
2. 내 용····································································································106
⑴ 경업금지의무(협의의 경업피지의무, 경업회피의무, 거래금지의무) ?
⑵ 겸직금지의무(겸직회피의무, 특정지위취임금지의무)
3. 의무위반의 효과························································································108
⑴ 경업금지의무위반의 효과 ? ⑵ 겸직금지의무위반의 효과
제 4 장 상 호(기업의 명칭)
제 1 상호의 입법목적······························································································112
제 2 상호의 의의·····································································································113
제 3 상호의 선정·····································································································114
1. 입법주의·····································································································114
⑴ 상호자유주의 ? ⑵ 상호진실주의 ? ⑶ 절충주의
2. 상법상의 상호선정·····················································································115
⑴ 원칙(상호자유주의) ? ⑵ 예외(상호자유주의의 제한)
3. 상호의 수(상호단일의 원칙)······································································117
⑴ 개인기업(개인상인)의 경우 ? ⑵ 회사기업(회사상인)의 경우
4. 상호의 등기································································································117
⑴ 개인기업(개인상인)의 경우 ? ⑵ 회사기업(회사상인)의 경우
제 4 상호의 보호·····································································································118
1. 상호권의 의의····························································································118
2. 상호권의 법적 성질···················································································118
⑴ 재산권설 ? ⑵ 겸 병 설
3. 상호권의 내용····························································································120
⑴ 상호사용권 ? ⑵ 상호전용권
4. 등기상호권자의 사전등기배척권······························································125
⑴ 원 칙 ? ⑵ 예 외
5. 가(假)등기 상호권자의 사전등기배척권··················································126
⑴ 상호의 가등기의 요건 ? ⑵ 상호의 가등기의 효과
제 5 상호의 이전과 폐지(변경)·············································································128
1. 상호의 이전································································································128
⑴ 상호의 양도 ? ⑵ 상호의 상속
2. 상호의 폐지(변경)······················································································130
xl 세부목차
⑴ 의 의 ? ⑵ 등기상호에 관한 특칙
제 6 명의대여자의 책임··························································································131
1. 의 의····································································································131
2. 요 건····································································································132
⑴ 명의대여 ? ⑵ 외관존재 ? ⑶ 상대방의 선의
3. 효 과····································································································136
⑴ 책임의 성질 ? ⑵ 책임의 범위
제 5 장 상 업 장 부
제 1 서 언·········································································································139
제 2 상업장부의 의의······························································································141
제 3 상업장부의 종류······························································································141
1. 회계장부·····································································································142
⑴ 의 의 ? ⑵ 기재방법 · 기재사항 · 기재시기
2. 대차대조표·································································································143
⑴ 의 의 ? ⑵ 작성시기와 종류 ? ⑶ 작성방법
제 4 상업장부에 관한 의무·····················································································144
1. 작 성····································································································144
⑴ 작성의무 ? ⑵ 작성기준
2. 보 존····································································································145
3. 제 출····································································································146
4. 제 재····································································································146
제 6 장 영 업 소
제 1 영업소의 의의·································································································148
⑴ 기업활동의 장소적 중심지 ? ⑵ 계 속 성 ? ⑶ 단 위 성 ? ⑷ 객 관 성
제 2 영업소의 종류·································································································149
제 3 영업소에 관한 법률상의 효과········································································149
⑴ 일반적 효과 ? ⑵ 지점의 법률상의 효과
세부목차 xli
제 7 장 상업등기(기업의 공시)
제 1 상업등기(기업공시)의 필요성·······································································151
제 2 상업등기의 의의······························································································152
제 3 등기사항··········································································································152
1. 의 의····································································································152
2. 종 류····································································································153
⑴ 등기 주체에 의한 분류 ? ⑵ 강제 유무에 의한 분류 ?
⑶ 법적 효과에 의한 분류
3. 지점의 등기································································································154
4. 변경 · 소멸의 등기·····················································································154
제 4 상업등기의 절차······························································································154
⑴ 신청주의 ? ⑵ 전산정보처리조직에 의한 상업등기 ? ⑶ 등기관할 ?
⑷ 등기소의 심사권 ? ⑸ 등기의 경정과 말소
제 5 상업등기의 공시······························································································158
제 6 상업등기의 효력······························································································158
1. 일반적 효력(확보적 효력 또는 선언적 효력)·············································158
⑴ 등기 전의 효력 ? ⑵ 등기 후의 효력 ? ⑶ 일반적 효력이 미치는 범위
2. 특수적 효력································································································163
⑴ 창설적(설정적) 효력 ? ⑵ 보완적 효력 ? ⑶ 해제적(부수적) 효력
3. 부실등기의 효력(공신력)···········································································164
⑴ 의 의 ? ⑵ 요 건 ? ⑶ 효 과
제 8 장 영업양도(기업의 이전)
제 1 총 설·········································································································169
1. 서 설····································································································169
2. 영업의 의의································································································170
⑴ 주관적 의의의 영업 ? ⑵ 객관적 의의의 영업
3. 영업양도의 의의························································································171
⑴ 영업양도의 법적 성질 ? ⑵ 영업양도의 의의
제 2 영업양도의 절차······························································································180
1. 양도계약의 당사자·····················································································180
⑴ 양 도 인 ? ⑵ 양 수 인
2. 양도계약의 체결························································································180
⑴ 의사결정 ? ⑵ 계약의 체결 ? ⑶ 계약의 내용 ? ⑷ 계약의 성질
xlii 세부목차
3. 양도계약의 효과························································································182
⑴ 영업재산의 이전의무 ? ⑵ 경영자지위의 이전의무
제 3 영업양도의 효과······························································································185
1. 대내관계(양도인의 경업피지의무)·····························································185
⑴ 당사자간에 약정이 없는 경우 ? ⑵ 당사자간에 약정이 있는 경우 ?
⑶ 의무위반의 효과
2. 대외관계(영업상의 채권자 및 채무자의 보호)···········································188
⑴ 영업상의 채권자의 보호 ? ⑵ 영업상의 채무자의 보호
제 4 영업의 임대차·································································································196
1. 의 의····································································································196
2. 절 차····································································································196
3. 효 력····································································································197
제 5 영업의 경영위임······························································································197
1. 의 의····································································································197
2. 경영위임계약·····························································································198
3. 경영관리계약·····························································································198
제 6 영업(기업)의 담보와 강제집행······································································199
제 2 편 상 행 위
제 1 장 서 론
제 1 총 설·········································································································203
제 2 상행위법의 의의와 특성·················································································203
1. 상행위법의 의의························································································203
⑴ 실질적 의의의 상행위법 ? ⑵ 형식적 의의의 상행위법 ? ⑶ 양자의 관계
2. 상행위법의 특성························································································205
⑴ 민법에 대한 특성 ? ⑵ 기업조직법에 대한 특성
제 3 상행위의 의의와 종류·····················································································206
1. 상행위의 의의····························································································206
⑴ 서 설 ? ⑵ 상행위에 관한 입법주의 ? ⑶ 상행위의 의의
2. 상행위의 종류····························································································208
세부목차 xliii
⑴ 영업적 상행위와 보조적 상행위 ? ⑵ 일방적 상행위와 쌍방적 상행위 ?
⑶ 사법인의 상행위와 공법인의 상행위
제 2 장 통 칙
제 1 절 서 설 213
제 2 절 민법 총칙편에 대한 특칙 213
제 1 상행위의 대리와 위임·····················································································213
1. 대리의 방식(본인의 표시가 없는 경우)······················································214
⑴ 민법의 규정(현명주의) ? ⑵ 상법의 규정(비현명주의)
2. 본인의 사망과 대리권의 존속···································································215
⑴ 민법의 규정 ? ⑵ 상법의 규정
3. 상행위의 수임인의 권한············································································216
⑴ 민법의 규정 ? ⑵ 상법의 규정
제 2 소멸시효기간···································································································217
⑴ 민법의 규정 ? ⑵ 상법의 규정
제 3 절 민법 물권편에 대한 특칙 219
제 1 상사유치권(일반상사유치권)·········································································220
1. 민사유치권·································································································220
2. 상사유치권(일반상사유치권)·····································································220
⑴ 의 의 ? ⑵ 성립요건 ? ⑶ 효 력
제 2 상사질권(유질계약의 허용)············································································224
1. 민사질권(유질계약의 금지)········································································224
2. 상사질권(유질계약의 허용)········································································224
제 4 절 민법 채권편에 대한 특칙 225
제 1 채권총칙에 대한 특칙·····················································································226
1. 법정이율·····································································································226
⑴ 민사법정이율 ? ⑵ 상사법정이율
2. 연대채무·····································································································227
⑴ 민법의 원칙(분할채무) ? ⑵ 상법의 특칙(연대채무)
3. 연대보증·····································································································228
⑴ 민법의 원칙 ? ⑵ 상법의 특칙
4. 상사채무의 이행························································································231
⑴ 채무이행의 장소 ? ⑵ 채무이행(청구)의 시기
xliv 세부목차
제 2 채권각칙에 대한 특칙·····················································································232
1. 대화자간의 계약의 성립시기····································································232
⑴ 민법의 원칙 ? ⑵ 상법의 특칙
2. 계약의 청약을 받은 상인의 의무······························································233
⑴ 민법의 원칙 ? ⑵ 상법의 특칙
3. 상사매매·····································································································236
⑴ 총 설 ? ⑵ 매도인의 공탁권 및 경매권 ?
⑶ 확정기매매의 해제 ? ⑷ 매수인의 검사 · 통지의무 ?
⑸ 매수인의 보관 · 공탁의무
4. 소비대차의 이자························································································249
⑴ 민법의 원칙 ? ⑵ 상법의 특칙
5. 보수청구권·································································································249
⑴ 민법의 원칙 ? ⑵ 상법의 특칙
6. 체당금의 이자····························································································251
⑴ 민법의 원칙 ? ⑵ 상법의 특칙
7. 상사임치·····································································································252
⑴ 민법의 원칙 ? ⑵ 상법의 특칙
제 5 절 유가증권에 관한 규정 254
제 6 절 상호계산 256
제 1 총 설·········································································································256
1. 상호계산제도의 목적 및 기능···································································256
2. 상호계산제도의 보조적 상행위성·····························································256
제 2 상호계산의 의의······························································································257
제 3 상호계산의 효력······························································································260
1. 상호계산기간중의 효력(소극적 효력, 상호계산불가분의 원칙)················260
⑴ 당사자간의 효력 ? ⑵ 제 3 자에 대한 효력
2. 상호계산기간만료 후의 효력(적극적 효력)··············································262
⑴ 잔액채권의 성립 ? ⑵ 잔액채권의 확정
제 4 상호계산의 종료······························································································264
1. 종료원인·····································································································264
⑴ 일반종료원인 ? ⑵ 특별종료원인
2. 종료효과·····································································································264
제 7 절 익명조합 265
제 1 총 설·········································································································265
세부목차 xlv
1. 익명조합의 목적 및 기능··········································································265
2. 익명조합과 유사제도와의 비교·································································265
⑴ 소비대차와의 비교 ? ⑵ 민법상의 조합과의 비교 ?
⑶ 합자회사와의 비교 ? ⑷ 합자조합과의 비교
제 2 익명조합의 의의(설립)···················································································267
제 3 익명조합의 효력······························································································269
1. 대내적 효력································································································269
⑴ 출 자 ? ⑵ 영업의 수행 ? ⑶ 손익의 분배 ? ⑷ 당사자지위의 이전
2. 대외적 효력································································································274
⑴ 영업자의 지위 ? ⑵ 익명조합원의 지위
제 4 익명조합의 종료······························································································275
1. 종료의 원인································································································275
⑴ 약정종료원인 ? ⑵ 법정종료원인
2. 종료의 효과································································································276
⑴ 익명조합원이 손실을 분담하지 않는 경우 ?
⑵ 익명조합원이 손실을 분담하는 경우 ? ⑶ 당사자가 파산한 경우
제 8 절 합자조합 277
제 1 총 설·········································································································277
1. 합자조합의 목적 및 기능··········································································277
2. 합자조합과 유사제도와의 비교·································································278
⑴ 합자조합과 합자회사와의 비교 ?
⑵ 합자조합과 민법상 조합과의 비교
제 2 합자조합의 의의(설립)···················································································279
1. 합자조합계약서의 작성·············································································279
⑴ 합자조합의 의의 ? ⑵ 합자조합계약서의 법정기재사항
2. 합자조합 설립의 등기···············································································282
제 3 기 구·········································································································283
1. 내부관계·····································································································283
⑴ 출 자 ? ⑵ 업무집행 ? ⑶ 조합원의 의무 ? ⑷ 손익의 분배 ?
⑸ 지 분
2. 외부관계·····································································································286
⑴ 대 리 ? ⑵ 책 임
제 4 조합원의 변경(가입 · 탈퇴)············································································287
1. 가 입····································································································287
2. 탈 퇴····································································································288
xlvi 세부목차
⑴ 법적 근거 ? ⑵ 임의탈퇴 ? ⑶ 비임의탈퇴 ? ⑷ 탈퇴의 효과
제 5 해산과 청산·····································································································290
1. 해 산····································································································290
2. 청 산····································································································291
제 3 장 각 칙
제 1 절 대 리 상 292
제 1 총 설·········································································································292
1. 대리상제도의 목적·····················································································292
2. 경제상의 대리점························································································293
제 2 대리상의 의의·································································································294
제 3 대리상의 권리의무··························································································296
1. 대리상과 본인과의 관계············································································296
⑴ 대리상의 의무 ? ⑵ 대리상의 권리
2. 대리상과 제 3 자와의 관계·········································································301
⑴ 대리상의 의무 · 책임 ? ⑵ 대리상의 권리
제 4 대리상계약의 종료··························································································302
1. 일반종료원인·····························································································302
2. 법정종료원인·····························································································302
제 2 절 중 개 업 303
제 1 총 설·········································································································303
제 2 중개인의 의의·································································································303
제 3 중개인의 의무·································································································306
1. 견품보관의무·····························································································307
2. 결약서(結約書) 교부의무··········································································307
3. 장부작성 및 등본교부의무········································································308
4. 성명 · 상호묵비의무···················································································309
5. 개입(介入)의무(이행담보책임)··································································309
제 4 중개인의 권리·································································································310
1. 보수청구권·································································································310
⑴ 발생요건 ? ⑵ 비 율
2. 비용상환청구권의 부존재·········································································312
세부목차 xlvii
3. 급여수령권의 부존재·················································································312
제 3 절 위탁매매업 312
제 1 총 설·········································································································312
제 2 위탁매매인의 의의··························································································313
제 3 위탁매매계약의 법률관계···············································································315
1. 외부관계·····································································································315
⑴ 위탁매매인과 제 3 자(상대방)와의 관계 ?
⑵ 위탁자와 제 3 자(상대방)와의 관계 ?
⑶ 위탁자와 위탁매매인의 채권자와의 관계(위탁물의 귀속관계)
2. 내부관계(위탁매매인과 위탁자와의 관계)·················································317
⑴ 위탁매매인의 의무 ? ⑵ 위탁매매인의 권리 ?
⑶ 매수위탁자가 상인인 경우의 특칙
제 4 준위탁매매인···································································································325
제 4 절 운송주선업 326
제 1 총 설·········································································································326
제 2 운송주선인의 의의··························································································327
제 3 운송주선인의 의무 · 책임···············································································330
1. 운송주선인의 의무·····················································································330
⑴ 일반적 의무(주의의무) ? ⑵ 개별적 의무
2. 운송주선인의 손해배상책임······································································331
⑴ 책임발생원인 ? ⑵ 손해배상액 ?
⑶ 불법행위책임과의 관계 ? ⑷ 고가물에 대한 특칙 ?
⑸ 운송주선인의 책임의 시효 ? ⑹ 수하인에 대한 책임
제 4 운송주선인의 권리··························································································335
1. 보수청구권·································································································335
⑴ 보수청구권의 발생 ? ⑵ 보수청구권의 행사시기 ?
⑶ 보수청구권이 발생하지 않는 경우
2. 비용상환청구권··························································································337
3. 유 치 권······································································································337
4. 개 입 권······································································································338
⑴ 개입권의 의의 ? ⑵ 개입권행사의 요건 ?
⑶ 개입권의 성질과 행사 ? ⑷ 개입권행사의 효과 ? ⑸ 개입의 의제
5. 운송주선인의 채권의 소멸시효·································································340
제 5 수하인의 지위·································································································340
xlviii 세부목차
제 6 순차운송주선에 관한 특칙·············································································340
1. 순차운송주선의 형태·················································································340
⑴ 부분운송주선 ? ⑵ 하수운송주선 ? ⑶ 중간(중계)운송주선
2. 순차운송주선인의 법률관계······································································342
⑴ 전자의 권리를 행사할 의무 ? ⑵ 전자의 권리의 취득 ?
⑶ 운송인의 권리의 취득
제 5 절 운 송 업 343
제 1 관 총 설·····································································································343
제 1 운송업의 목적·································································································343
제 2 운송의 종류·····································································································344
1. 물건운송 · 여객운송 · 통신운송(운송의 객체에 의한 분류)·······················344
2. 육상운송 · 해상운송 · 항공(공중)운송(운송지역에 의한 분류)··················344
제 3 법원(法源)······································································································345
1. 육상운송·····································································································345
2. 해상운송·····································································································345
3. 항공(공중)운송···························································································346
제 4 운송인의 의의·································································································346
제 5 운송계약의 체결······························································································347
1. 운송계약의 성질························································································347
2. 운송계약의 당사자·····················································································348
3. 운송계약의 체결························································································348
제 2 관 물건운송·····································································································348
제 1 운송인의 의무 · 책임·······················································································348
1. 총 설····································································································348
2. 화물상환증교부의무··················································································349
3. 운송물의 보관 및 처분의무·······································································349
⑴ 보관의무 ? ⑵ 처분의무
4. 운송물인도의무··························································································351
⑴ 화물상환증이 발행된 경우 ? ⑵ 화물상환증이 발행되지 않은 경우
5. 운송인의 손해배상책임·············································································355
⑴ 책임발생원인 ? ⑵ 손해배상액 ? ⑶ 고가물에 대한 특칙 ?
⑷ 불법행위책임과의 관계 ? ⑸ 면책약관 ? ⑹ 손해배상책임의 소멸
제 2 운송인의 권리·································································································363
1. 운송물인도청구권······················································································363
세부목차 xlix
2. 화물명세서교부청구권··············································································363
⑴ 의 의 ? ⑵ 기 능 ? ⑶ 성 질 ? ⑷ 기재사항 ?
⑸ 부실기재의 책임
3. 운임 및 기타 비용청구권··········································································365
⑴ 운임청구권 ? ⑵ 비용 등의 상환청구권
4. 유 치 권······································································································366
5. 운송물의 공탁 · 경매권··············································································367
⑴ 공 탁 권 ? ⑵ 경 매 권
6. 운송인의 채권의 소멸시효········································································370
제 3 화물상환증······································································································370
1. 총 설····································································································370
⑴ 의 의 ? ⑵ 성 질 ? ⑶ 효 용
2. 발 행····································································································371
⑴ 발행자와 청구권자 ? ⑵ 형 식
3. 양 도····································································································371
4. 효 력····································································································372
⑴ 채권적 효력(문언증권성) ? ⑵ 물권적 효력(인도증권성)
제 4 순차운송··········································································································380
1. 순차운송의 의의 및 형태··········································································380
⑴ 의 의 ? ⑵ 형 태
2. 순차운송인의 법률관계·············································································381
⑴ 순차운송인의 연대책임 ? ⑵ 순차운송인의 대위
제 3 관 여객운송·····································································································383
제 1 총 설·········································································································383
제 2 여객운송계약의 특징······················································································383
⑴ 물건운송계약과 다른 점 ? ⑵ 승차권의 법적 성질
제 3 여객운송인의 손해배상책임···········································································385
1. 여객이 입은 손해에 대한 책임··································································385
2. 여객의 수하물에 대한 책임·······································································389
3. 순차여객운송인의 책임·············································································390
4. 손해배상책임의 소멸·················································································390
제 4 여객운송인의 권리··························································································390
1. 운임청구권·································································································390
2. 유 치 권······································································································391
l 세부목차
제 6 절 공중접객업 391
제 1 총 설·········································································································391
제 2 공중접객업자의 의의······················································································392
제 3 공중접객업자의 책임······················································································393
1. 임치받은 물건에 대한 책임·······································································393
⑴ 책임의 의의 ? ⑵ 임치받은 물건 ?
⑶ 손해배상청구권자(고객) ? ⑷ 면책의 특약
2. 임치받지 아니한 물건에 대한 책임··························································395
⑴ 책임의 의의 ? ⑵ 주의의 정도 ? ⑶ 사 용 인 ?
⑷ 손해배상청구권자(고객) ? ⑸ 면책의 특약
3. 고가물에 대한 책임···················································································395
4. 책임의 소멸시효························································································396
제 7 절 창 고 업 397
제 1 총 설·········································································································397
1. 창고업의 효용····························································································397
2. 창고업의 감독····························································································397
제 2 창고업자의 의의······························································································398
제 3 창고업자의 의무 · 책임···················································································399
1. 보관의무·····································································································399
2. 창고증권교부의무······················································································400
3. 임치물의 검사 · 견품적취 · 보존처분에 따를 의무···································400
4. 임치물의 반환의무·····················································································401
5. 임치물의 훼손 · 하자 등의 통지의무························································401
6. 손해배상책임·····························································································402
⑴ 책임원인 ? ⑵ 책임의 소멸
제 4 창고업자의 권리······························································································403
1. 임치물인도청구권······················································································403
2. 보관료 및 비용상환청구권········································································404
⑴ 보관료청구권 ? ⑵ 비용상환청구권
3. 유 치 권······································································································404
4. 공탁 및 경매권···························································································405
5. 손해배상청구권··························································································405
6. 채권의 단기시효························································································405
세부목차 li
제 5 창고증권··········································································································405
1. 의 의····································································································405
2. 입법주의·····································································································406
⑴ 단권주의 ? ⑵ 복권주의 ? ⑶ 병용주의
3. 성 질····································································································407
4. 발 행····································································································407
⑴ 발행청구 ? ⑵ 기재사항
5. 양 도····································································································408
6. 효 력····································································································408
⑴ 채권적 효력 및 물권적 효력 ?
⑵ 창고증권에 의한 입질과 일부출고
제 8 절 금융리스업 409
제 1 총 설·········································································································409
1. 우리나라에서 (금융)리스의 의의······························································409
2. 금융리스의 경제적 기능············································································411
⑴ 장 점 ? ⑵ 단 점
제 2 리스의 종류·····································································································412
1. 금융리스와 운용리스·················································································412
⑴ 금융리스 ? ⑵ 운용리스
2. 기타의 종류································································································412
제 3 금융리스거래의 구조······················································································413
1. 당 사 자······································································································413
2. 금융리스거래의 과정·················································································413
3. 금융리스계약의 법적 성질········································································414
⑴ 임대차계약설(특수임대차계약설) ?
⑵ 무명계약설(비전형계약설) ? ⑶ 금융리스계약의 형식
제 4 금융리스업자의 의의······················································································416
제 5 금융리스거래의 법률관계···············································································417
1. 금융리스업자의 의무·················································································417
⑴ 금융리스이용자가 금융리스물건을 수령할 수 있도록 할 의무 ?
⑵ 금융리스이용자의 공급자에 대한 손해배상청구권의 행사에 협력할 의무
2. 금융리스이용자의 의무·············································································418
⑴ 금융리스물건 수령증 발급의무 ? ⑵ 금융리스료 지급의무 ?
⑶ 금융리스물건의 유지 및 관리의무
lii 세부목차
3. 공급자의 의무····························································································419
⑴ 금융리스물건의 인도의무 ?
⑵ 공급자의 인도의무 불이행시 금융리스이용자의 직접청구권
4. 금융리스계약의 해지·················································································420
⑴ 금융리스업자의 해지 ? ⑵ 금융리스이용자의 해지
제 9 절 가 맹 업 422
제 1 총 설·········································································································422
1. 우리나라에서 가맹업(프랜차이즈)의 의의················································422
2. 가맹업의 경제적 기능···············································································423
⑴ 장 점 ? ⑵ 단 점
제 2 가맹업의 종류·································································································424
1. 발생시점에 따른 분류···············································································424
2. 대상사업에 따른 분류···············································································424
3. 당사자에 따른 분류···················································································424
제 3 가맹거래의 구조······························································································424
1. 당 사 자······································································································424
2. 가맹거래의 과정························································································425
3. 가맹계약의 법적 성질···············································································425
제 4 가맹업자 및 가맹상의 의의············································································425
1. 가맹업자의 의의························································································425
2. 가맹상의 의의····························································································426
제 5 가맹거래의 법률관계······················································································426
1. 내부관계·····································································································426
⑴ 가맹업자의 의무 ? ⑵ 가맹상의 의무 ?
⑶ 가맹상의 영업양도(가맹업자의 동의) ? ⑷ 가맹계약의 해지
2. 외부관계·····································································································430
⑴ 원 칙 ? ⑵ 예 외
제10절 채권매입업 431
제 1 총 설·········································································································431
1. 우리나라에서 채권매입업(팩토링)3)의 의의·············································431
2. 경제적 기능································································································432
제 2 채권매입업의 종류··························································································433
1. 상환청구권의 유무에 따른 분류·······························································433
세부목차 liii
2. 채권양도의 통지유무에 따른 분류···························································433
3. 선급의 유무에 따른 분류··········································································434
4. 기타의 분류································································································434
제 3 채권매입거래의 구조······················································································434
1. 당 사 자······································································································434
2. 채권매입거래의 과정·················································································435
3. 채권매입거래의 법적 성질········································································435
제 4 채권매입업자의 의의······················································································437
제 5 채권매입거래의 법률관계···············································································437
1. 채권매입업자와 거래기업간의 법률문제··················································437
2. 채권매입업자와 채무자간의 법률문제·····················································438
제 3 편 회 사
제 1 장 총 설
제 1 회사제도의 경제적 기능·················································································443
1. 공동기업형태·····························································································443
2. 회사제도의 장점과 단점············································································443
⑴ 장 점 ? ⑵ 단 점
3. 회사의 종류와 기능의 차이·······································································444
제 2 회사법의 개념·································································································445
1. 실질적 의의의 회사법···············································································445
2. 형식적 의의의 회사법···············································································445
제 3 회사법의 특성·································································································446
1. 단체법적(조직법적) 성질과 거래법적(행위법적) 성질·····························446
2. 이익단체법적(영리적) 성질과 공동단체법적(사회적) 성질·····················446
3. 강행법적 성질과 임의법적 성질·······························································448
제 4 회사법의 법원(法源)······················································································448
1. 상 법 전······································································································448
2. 상법전 이외의 법원(法源)·········································································449
liv 세부목차
⑴ 조 약 ? ⑵ 특별법령 ? ⑶ 관 습 법 ? ⑷ 각 회사의 정관
3. 법원(法源) 적용의 순위············································································450
제 5 각국의 회사법·································································································450
1. 독일법계·····································································································451
⑴ 독 일 ? ⑵ 오스트리아 ? ⑶ 스 위 스 ?
⑷ 중 국 ? ⑸ 일 본
2. 프랑스법계·································································································453
⑴ 프 랑 스 ? ⑵ 이탈리아
3. 영미법계·····································································································454
⑴ 영 국 ? ⑵ 미 국
4. EU법계·······································································································456
제 2 장 회사법통칙
제 1 절 회사의 개념 458
제 1 회사의 의의·····································································································458
1. 영 리 성······································································································458
2. 사 단 성······································································································460
⑴ 사단성의 폐지 ? ⑵ 1인회사
3. 법 인 성······································································································463
⑴ 법인의 의의와 주소 ? ⑵ 법인의 속성 ? ⑶ 회사와 법인성 ?
⑷ 법인격부인론
4. 기 타····································································································472
⑴ 상 인 성 ? ⑵ 준 칙 성
제 2 회사의 종류·····································································································472
1. 상법상의 종류····························································································473
⑴ 합명회사 · 합자회사 · 유한책임회사 · 주식회사 · 유한회사(사원의 책임에 의한 종류) ?
⑵ 상사회사 · 민사회사(영업목적에 의한 종류) ?
⑶ 모회사 · 자회사(주식소유비율에 의한 종류)
2. 설립근거법상의 종류·················································································476
⑴ 내국회사 · 외국회사(설립준거법에 의한 종류) ?
⑵ 일반법상의 회사 · 특별법상의 회사(설립법원〈法源〉에 의한 종류)
3. 학설(강학)상의 종류··················································································477
⑴ 인적회사 · 물적회사(사회학적 형태에 의한 종류) ?
세부목차 lv
⑵ 개인주의적 회사 · 단체주의적 회사(법률적 형태에 의한 종류)
4. 경제상의 종류····························································································478
⑴ 지배회사 · 종속회사(지배 · 종속관계에 의한 종류) ?
⑵ 내자회사·외자회사·합작회사·초국적 회사(다국적회사)(자본금의 내외에 의한 종류) ?
⑶ 상장회사 · 비상장회사(상장 여부에 의한 종류) ?
⑷ 기업집단 · 계열회사 · 지주회사(독점규제 및 공정거래에 관한 법률에 의한 종류) ?
⑸ 공공적 법인(산업내용에 의한 종류)
제 3 회사의 능력·····································································································481
1. 회사의 권리능력························································································481
⑴ 성질에 의한 제한 ? ⑵ 법률에 의한 제한 ? ⑶ 목적에 의한 제한
2. 의사능력 · 행위능력···················································································487
3. 불법행위능력·····························································································488
4. 공법상의 능력····························································································489
제 2 절 회사의 설립 489
제 1 회사설립에 관한 입법주의·············································································489
⑴ 자유설립주의 ? ⑵ 특허주의 ?
⑶ 면허주의 또는 허가주의 ? ⑷ 준칙주의
제 2 회사의 설립절차······························································································490
1. 설립행위의 의의 및 법적 성질··································································490
⑴ 설립행위의 의의 ? ⑵ 설립행위의 법적 성질
2. 회사의 실체형성절차·················································································492
⑴ 정관작성 ? ⑵ 사원확정절차 ?
⑶ 출자이행절차 ? ⑷ 기관구성절차
3. 설립등기·····································································································494
⑴ 등기사항 ? ⑵ 등기기간 ?
⑶ 등기사항의 변경 ? ⑷ 설립등기의 효력
제 3 회사설립의 하자(무효 · 취소)·········································································495
1. 의 의····································································································495
2. 합명회사의 설립하자·················································································496
⑴ 소의 원인 ? ⑵ 주장방법 · 소의 당사자 · 제소기간 ?
⑶ 소의 절차 ? ⑷ 판결의 효과
3. 합자회사의 설립하자·················································································497
4. 유한책임회사의 설립하자·········································································498
lvi 세부목차
5. 주식회사의 설립하자·················································································498
⑴ 소의 원인 ? ⑵ 주장방법 · 소의 당사자 · 제소기간 ?
⑶ 소의 절차 ? ⑷ 판결의 효과
6. 유한회사의 설립하자·················································································499
7. 사실상의 회사····························································································499
⑴ 의 의 ? ⑵ 사실상의 회사의 법률관계
제 3 절 회사의 기구변경(구조조정) 500
제 1 총 설·········································································································500
제 2 회사의 조직변경······························································································501
1. 경제적 목적································································································501
2. 의 의····································································································501
3. 종 류····································································································502
4. 절 차····································································································502
⑴ 합명회사에서 합자회사로의 조직변경 ?
⑵ 합자회사에서 합명회사로의 조직변경 ?
⑶ 주식회사에서 유한회사 또는 유한책임회사로의 조직변경 ?
⑷ 유한회사 또는 유한책임회사에서 주식회사로의 조직변경
5. 효력발생·····································································································505
6. 하 자····································································································505
제 3 회사의 합병·····································································································506
1. 총 설····································································································506
2. 합병의 경제적 목적···················································································506
3. 합병의 의의································································································507
⑴ 합병의 개념 ? ⑵ 합병의 종류 ? ⑶ 합병의 성질 ? ⑷ 합병계약의 성질
4. 합병의 자유와 제한···················································································511
⑴ 합병의 자유 ? ⑵ 합병의 제한
5. 합병의 절차································································································512
⑴ 합병계약 ? ⑵ 합병결의(대내적 절차) ?
⑶ 회사채권자의 보호(대외적 절차) ? ⑷ 그 밖의 절차 ?
⑸ 합병등기 ? ⑹ 합병공시
6. 합병의 효과································································································519
⑴ 회사의 소멸과 회사의 설립(변경) ?
⑵ 권리의무 및 사원의 포괄적 이전 ? ⑶ 소송법상의 효과
7. 합병의 무효································································································521
⑴ 총 설 ? ⑵ 무효의 원인 ? ⑶ 합병무효의 소 ?
세부목차 lvii
⑷ 합병무효판결의 효과
제 4 회사의 분할·····································································································524
1. 의 의····································································································524
2. 분할의 경제적 목적···················································································526
3. 분할의 종류································································································526
⑴ 단순분할 · 분할합병 ? ⑵ 흡수분할 · 신설분할 ?
⑶ 인적 분할 · 물적(재산) 분할 ?
⑷ 보통분할 · 간이분할 또는 소규모분할
4. 분할의 성질································································································531
5. 분할의 자유와 제한···················································································532
6. 분할의 절차································································································532
⑴ 분할계획서 또는 분할합병계약서의 작성 ?
⑵ 분할결의(대내적 절차) ? ⑶ 회사채권자의 보호(대외적 절차) ?
⑷ 그 밖의 절차 ? ⑸ 분할등기 ? ⑹ 분할공시
7. 분할의 효과································································································538
⑴ 권리의무의 포괄적 이전 ? ⑵ 분할 후의 회사의 책임
8. 분할의 무효································································································542
⑴ 분할무효의 소의 절차 ? ⑵ 분할무효판결의 효과
제 5 회사(기업)의 매수(M&A;)··············································································544
제 6 기업(회사)결합································································································546
1. 의 의····································································································546
2. 종류 및 법적 규제·····················································································547
⑴ 계약에 의한 기업(회사)결합 ?
⑵ 자본참가에 의한 기업(회사)결합
제 4 절 회사의 해산 · 청산 · 해산명령(판결) · 계속 547
제 1 해 산·········································································································547
1. 해산의 의의································································································547
2. 해산회사의 법적 성질···············································································548
3. 해산사유·····································································································548
⑴ 합명회사의 해산사유 ? ⑵ 합자회사의 해산사유 ?
⑶ 유한책임회사의 해산사유 ? ⑷ 주식회사의 해산사유 ?
⑸ 유한회사의 해산사유
4. 해산의 효과································································································550
제 2 청 산·········································································································550
1. 청산의 의의································································································550
lviii 세부목차
2. 청 산 인······································································································551
3. 청산의 절차································································································552
⑴ 청산사무 ? ⑵ 청산절차의 방법
4. 청산의 종결과 종결의제············································································552
제 3 회사의 해산명령과 해산판결··········································································553
1. 회사의 해산명령························································································553
⑴ 회사의 해산명령의 의의 ? ⑵ 회사의 해산명령의 사유 ?
⑶ 회사의 해산명령의 절차 ? ⑷ 회사의 해산명령의 효과
2. 회사의 해산판결························································································555
⑴ 회사의 해산판결의 의의 ? ⑵ 회사의 해산판결의 사유 ?
⑶ 회사의 해산판결의 절차 ? ⑷ 회사의 해산판결의 효과
제 4 회사의 계속·····································································································557
1. 회사의 계속의 의의···················································································557
2. 회사의 계속의 사유 및 절차·····································································557
⑴ 각종 회사의 계속의 사유 및 절차 ? ⑵ 조직변경에 의한 회사의 계속 ?
⑶ 회사의 계속등기
3. 회사의 계속의 효과···················································································559
제 3 장 합 명 회 사
제 1 절 총 설 560
제 1 의 의·········································································································560
제 2 경제적 기능·····································································································560
제 2 절 설 립 561
제 1 설립절차··········································································································561
1. 정관의 작성································································································561
⑴ 절대적 기재사항 ? ⑵ 상대적 기재사항 ? ⑶ 임의적 기재사항
2. 설립등기·····································································································562
⑴ 등기사항 ? ⑵ 첨부서류
제 2 설립하자(무효 · 취소)·····················································································563
제 3 절 기 구 563
제 1 관 총 설·····································································································563
제 1 합명회사의 법률관계의 구조··········································································563
제 2 합명회사에 관한 법규의 성격 및 적용순서···················································564
세부목차 lix
제 2 관 내부관계·····································································································564
제 1 출 자·········································································································564
1. 출자의 의의 및 종류··················································································564
⑴ 출자의 의의 ? ⑵ 출자의 종류
2. 출자의무의 발생과 소멸············································································566
3. 출자의 이행································································································566
⑴ 출자이행의 시기와 방법 ? ⑵ 출자불이행의 효과
제 2 업무집행··········································································································567
1. 업무집행의 의의························································································567
2. 업무집행기관·····························································································567
⑴ 업무집행권의 취득 ? ⑵ 업무집행권의 상실(정지) ?
⑶ 업무집행기관과 회사와의 관계
3. 업무집행의 방법························································································570
⑴ 사원의 의사결정 ? ⑵ 업무집행의 실행
4. 업무감시권·································································································571
제 3 경업피지의무와 자기거래제한·······································································571
1. 경업피지의무·····························································································571
⑴ 의 의 ? ⑵ 의무위반의 효과
2. 자기거래제한·····························································································572
⑴ 의 의 ? ⑵ 의무위반의 효과
제 4 손익의 분배·····································································································573
1. 손익의 의의································································································573
2. 손익분배의 표준························································································573
3. 손익분배의 시기························································································573
4. 손익분배의 방법························································································573
제 5 지 분·········································································································574
1. 지분의 의의································································································574
2. 지분의 양도································································································575
3. 지분의 상속································································································576
4. 지분의 입질 · 압류·····················································································577
⑴ 지분의 입질 ? ⑵ 지분의 압류
제 3 관 외부관계·····································································································578
제 1 회사대표··········································································································578
1. 회사대표의 의의························································································578
lx 세부목차
2. 대표기관·····································································································579
⑴ 대표권의 취득 ? ⑵ 대표권의 제한 및 상실
3. 대표의 방법································································································580
⑴ 원칙(단독대표) ? ⑵ 예외(공동대표)
4. 대표기관의 권한························································································580
5. 등 기····································································································582
제 2 사원의 책임·····································································································582
1. 사원의 책임의 성질···················································································582
⑴ 인적 책임 ? ⑵ 연대책임 ? ⑶ 무한책임 ? ⑷ 직접책임
2. 사원의 책임의 존속기간············································································583
⑴ 회사성립 후에 입사한 사원의 책임 ?
⑵ 퇴사(지분양도) · 해산 후의 사원의 책임
3. 사원의 책임의 내용···················································································584
⑴ 책임의 내용인 회사채무의 종류 ? ⑵ 책임이행의 조건 ?
⑶ 회사채무의 내용과 사원책임의 내용과의 관계 ?
⑷ 사원이 회사채권자인 경우
4. 사원의 책임이행의 효과············································································587
5. 자칭사원의 책임························································································588
제 4 절 기구변경 588
제 1 관 정관변경·····································································································588
1. 의 의····································································································588
2. 절 차····································································································588
3. 등 기····································································································589
제 2 관 사원변경(입사·퇴사)···················································································589
제 1 입 사·········································································································589
1. 의 의····································································································589
2. 절 차····································································································590
3. 등 기····································································································590
4. 효 과····································································································590
제 2 퇴 사·········································································································590
1. 의 의····································································································590
2. 퇴사원인·····································································································591
⑴ 임의퇴사 ? ⑵ 강제퇴사 ? ⑶ 당연퇴사
3. 퇴사절차·····································································································593
세부목차 lxi
4. 퇴사의 효과································································································594
⑴ 회사채권자의 보호 ? ⑵ 회사와 퇴사원과의 관계
제 3 관 합 병·····································································································595
제 4 관 조직변경·····································································································595
제 5 절 해산과 청산 595
제 1 관 해 산·····································································································595
1. 해산사유·····································································································595
2. 해산등기·····································································································596
3. 해산의 효과································································································596
⑴ 청산절차의 개시 ? ⑵ 회사의 계속
제 2 관 청 산·····································································································597
1. 총 설····································································································597
2. 임의청산·····································································································597
⑴ 사 유 ? ⑵ 채권자보호절차 ? ⑶ 청산종결
3. 법정청산·····································································································599
⑴ 사 유 ? ⑵ 청 산 인 ? ⑶ 청산사무 ? ⑷ 청산종결
제 4 장 합 자 회 사
제 1 절 총 설 602
제 1 의 의·········································································································602
제 2 경제적 기능·····································································································603
제 2 절 설 립 603
1. 설립절차·····································································································603
⑴ 정관작성 ? ⑵ 설립등기
2. 설립하자(무효 · 취소)·················································································604
제 3 절 기 구 604
제 1 관 내부관계·····································································································604
제 1 출 자·········································································································604
제 2 업무집행··········································································································604
1. 업무집행기관·····························································································604
⑴ 무한책임사원 ? ⑵ 유한책임사원 ? ⑶ 업무집행권의 상실
2. 업무집행의 방법························································································605
lxii 세부목차
3. 업무감시권·································································································605
제 3 경업피지의무와 자기거래제한·······································································606
1. 경업피지의무·····························································································606
2. 자기거래제한·····························································································606
제 4 손익의 분배·····································································································607
제 5 지 분·········································································································607
1. 지분의 양도································································································607
2. 지분의 입질 · 압류·····················································································607
제 2 관 외부관계·····································································································608
제 1 회사대표··········································································································608
1. 대표기관·····································································································608
⑴ 무한책임사원 ? ⑵ 유한책임사원 ? ⑶ 대표권의 제한 및 상실
2. 대표의 방법································································································609
제 2 사원책임··········································································································609
1. 무한책임사원의 책임·················································································609
2. 유한책임사원의 책임·················································································609
3. 사원의 책임의 변경···················································································610
4. 자칭무한책임사원의 책임·········································································610
제 4 절 기구변경 610
제 1 관 정관변경·····································································································610
제 2 관 사원변경(입사 · 퇴사)·················································································610
제 3 관 합 병·····································································································611
제 4 관 조직변경·····································································································612
제 5 절 해산과 청산 612
제 1 관 해 산·····································································································612
제 2 관 청 산·····································································································612
제 5 장 유한책임회사
제 1 절 총 설 613
제 1 의 의·········································································································613
제 2 경제적 기능·····································································································614
제 3 유한책임회사와 합명회사 및 유한회사와의 차이점······································615
세부목차 lxiii
1. 유한책임회사와 합명회사와의 차이점·····················································615
2. 유한책임회사와 유한회사와의 차이점·····················································616
제 2 절 설 립 619
제 1 설립절차··········································································································619
1. 정관의 작성································································································620
⑴ 절대적 기재사항 ? ⑵ 상대적 등기사항 ? ⑶ 임의적 등기사항
2. 출자의 이행································································································621
3. 설립등기·····································································································621
⑴ 등기사항 ? ⑵ 첨부서류
제 2 설립하자(무효 · 취소)·····················································································622
제 3 절 기 구 622
제 1 관 총 설·····································································································622
제 2 관 내부관계·····································································································623
제 1 출자 및 지분····································································································623
1. 출 자····································································································623
2. 지 분····································································································623
⑴ 지분의 의의 ? ⑵ 지분의 양도 ? ⑶ 자기지분의 양수금지 ?
⑷ 지분의 상속 ? ⑸ 지분의 입질 · 압류
제 2 업무집행··········································································································625
1. 업무집행기관·····························································································625
⑴ 업무집행권의 취득 ? ⑵ 업무집행권의 상실(정지) ?
⑶ 업무집행자와 회사와의 관계
2. 업무집행의 방법························································································627
⑴ 사원의 의사결정 ? ⑵ 업무집행의 실행
3. 업무감시권·································································································628
제 3 경업피지의무와 자기거래제한·······································································628
1. 경업피지의무·····························································································628
⑴ 의 의 ? ⑵ 의무위반의 효과
2. 자기거래제한·····························································································629
⑴ 의 의 ? ⑵ 의무위반의 효과
제 3 관 외부관계·····································································································629
제 1 회사대표··········································································································629
1. 대표기관·····································································································629
⑴ 대표권의 취득 ? ⑵ 대표권의 제한 및 상실
lxiv 세부목차
2. 대표의 방법································································································631
⑴ 원칙(단독대표) ? ⑵ 예외(공동대표)
3. 대표기관의 권한························································································631
4. 등 기····································································································631
제 2 사원의 제 3 자에 대한 책임·············································································632
제 3 대표소송··········································································································633
제 4 절 기구변경 633
제 1 관 정관변경·····································································································633
제 2 관 사원변경(가입〈입사〉 및 탈퇴〈퇴사〉)························································634
제 1 가입(입사)·······································································································634
제 2 탈퇴(퇴사)·······································································································635
1. 의 의····································································································635
2. 탈퇴원인·····································································································635
⑴ 임의퇴사 ? ⑵ 강제퇴사 ? ⑶ 당연퇴사
3. 퇴사절차·····································································································636
4. 퇴사의 효과································································································637
⑴ 지분환급청구권 ? ⑵ 상호변경청구권
제 3 관 합 병·····································································································637
제 4 관 조직변경·····································································································638
제 5 절 회사의 회계 638
1. 총 설····································································································638
2. 재무제표·····································································································639
⑴ 작 성 ? ⑵ 비치 · 공시
3. 자본금의 증가와 감소···············································································639
⑴ 자본금의 의의 ? ⑵ 자본금의 증가 ? ⑶ 자본금의 감소
4. 잉여금의 분배····························································································640
⑴ 잉여금의 분배의 요건 ? ⑵ 잉여금 분배의 기준 ?
⑶ 잉여금 분배의 청구 등
제 6 절 해산과 청산 642
제 1 관 해 산·····································································································642
1. 해산사유·····································································································642
2. 해산등기·····································································································642
3. 해산의 효과································································································642
세부목차 lxv
⑴ 청산절차의 개시 ? ⑵ 회사의 계속
제 2 관 청 산·····································································································643
제 6 장 주 식 회 사
제 1 절 총 설 644
제 1 주식회사의 개념······························································································644
1. 자 본 금······································································································644
⑴ 자본금의 의의 ? ⑵ 자본금의 규모 ? ⑶ 자본금에 관한 입법례 ?
⑷ 자본금에 관한 원칙
2. 주 식····································································································650
3. 주주의 유한책임························································································651
제 2 주식회사의 경제적 기능·················································································652
제 2 절 주식회사의 설립 653
제 1 관 총 설·····································································································653
제 1 주식회사 설립의 특색·····················································································653
제 2 주식회사 설립의 방법·····················································································654
1. 발기설립과 모집설립·················································································654
2. 양자의 차이································································································655
⑴ 설립절차상의 차이 ? ⑵ 설립경과조사상의 차이 ?
⑶ 정관의 효력발생시기의 차이
제 3 발기인 · 발기인조합 · 설립중의 회사·····························································656
1. 발 기 인······································································································656
⑴ 의 의 ? ⑵ 자격 및 수 ?
⑶ 권 한 ? ⑷ 의무 · 책임
2. 발기인조합·································································································658
⑴ 의 의 ? ⑵ 권 한 ?
⑶ 발기인 및 설립중의 회사와의 관계
3. 설립중의 회사····························································································659
⑴ 의 의 ? ⑵ 법적 성질 ?
⑶ 성립시기 ? ⑷ 법률관계 ? ⑸ 권리의무의 이전
제 2 관 실체형성절차·····························································································666
제 1 정관의 작성·····································································································667
1. 정관의 의의································································································667
lxvi 세부목차
⑴ 정관의 개념 ? ⑵ 정관의 종류 ? ⑶ 정관의 방식
2. 정관의 기재사항························································································667
⑴ 절대적 기재사항 ? ⑵ 상대적 기재사항 ? ⑶ 임의적 기재사항
제 2 그 밖의 실체형성절차·····················································································674
1. 주식발행사항의 결정절차(공통절차)························································675
2. 주식인수절차·····························································································676
⑴ 발기설립의 경우 ? ⑵ 모집설립의 경우
3. 출자이행절차·····························································································681
⑴ 발기설립의 경우 ? ⑵ 모집설립의 경우
4. 기관구성절차(이사 · 감사의 선임)·····························································686
⑴ 발기설립의 경우 ? ⑵ 모집설립의 경우
5. 설립경과조사절차······················································································687
⑴ 발기설립의 경우 ? ⑵ 모집설립의 경우
제 3 관 설립등기·····································································································691
제 1 등기시기··········································································································691
제 2 등기절차··········································································································691
제 3 등기사항··········································································································692
제 4 등기효력··········································································································693
⑴ 본질적 효력 ? ⑵ 부수적 효력
제 4 관 설립하자(무효)···························································································693
⑴ 설립무효의 원인 ? ⑵ 설립무효의 주장 ? ⑶ 그 밖의 사항
제 5 관 설립에 관한 책임·····················································································694
제 1 발기인의 책임·································································································695
1. 회사가 성립한 경우···················································································695
⑴ 회사에 대한 책임 ? ⑵ 제 3 자에 대한 책임
2. 회사가 불성립한 경우···············································································701
제 2 이사 · 감사 · 공증인 · 감정인의 책임······························································701
⑴ 의 의 ? ⑵ 성 질 ? ⑶ 이행청구
제 3 검사인의 책임·································································································703
⑴ 의 의 ? ⑵ 성 질
제 4 유사발기인의 책임··························································································703
⑴ 의 의 ? ⑵ 성 질 ? ⑶ 내 용 ? ⑷ 이행청구
제 3 절 주식과 주주 704
제 1 관 주 식·····································································································704
세부목차 lxvii
제 1 주식의 의의·····································································································704
1. 자본금의 구성단위로서의 주식·································································705
⑴ 자본금의 구성단위 ? ⑵ 주식의 불가분성 ? ⑶ 주식의 공유 ?
⑷ 주식의 분할 ? ⑸ 주식의 병합
2. 주주의 지위(주주의 권리의무)로서의 주식···············································708
⑴ 주식이 나타내는 권리(주주권) ? ⑵ 주식이 나타내는 의무 ?
⑶ 주식의 평등성
제 2 주식의 분류·····································································································713
1. 액면주식 · 무액면주식···············································································713
⑴ 액면주식 ? ⑵ 무액면주식
2. 기명주식 · 무기명주식···············································································715
⑴ 기명주식 ? ⑵ 무기명주식
3. 종류주식·····································································································716
⑴ 의 의 ? ⑵ 발 행 ? ⑶ 종류주식에 관한 특칙 ?
⑷ 종류주식의 분류
제 2 관 주 주·····································································································734
제 1 주주의 의의·····································································································734
⑴ 주주의 개념 ? ⑵ 주주의 자격 ? ⑶ 주주의 수
제 2 주주의 종류·····································································································734
⑴ 주식의 종류에 따른 분류 ?
⑵ 주식소유의 수량에 따른 분류 ?
⑶ 주식소유의 동기에 따른 분류 ?
⑷ 주주명부에의 주식소유자의 등재명의에 따른 분류 ?
⑸ 주식소유자가 누구이냐에 따른 분류
제 3 주주의 권리의무······························································································735
1. 주주의 권리································································································735
⑴ 의 의 ? ⑵ 종 류
2. 주주의 의무································································································736
⑴ 출자의무 ? ⑵ 유한책임
제 4 실질주주··········································································································738
1. 의 의····································································································738
⑴ 광의의 실질주주 ? ⑵ 협의의 실질주주
2. 주권의 예탁································································································740
⑴ 주권의 예탁절차 ? ⑵ 예탁(계좌부기재)의 효력
3. 권리행사·····································································································740
⑴ 실질주주의 권리행사 ? ⑵ 명의주주(한국예탁결제원)의 권리행사
lxviii 세부목차
제 3 관 주권과 주주명부·······················································································741
제 1 주 권·········································································································741
1. 의의와 성질································································································741
⑴ 주권의 의의 ? ⑵ 주권의 성질
2. 분 류····································································································742
⑴ 기명주권 · 무기명주권 ? ⑵ 단일주권 · 병합주권
3. 발 행····································································································742
⑴ 주권의 발행시기 ? ⑵ 주권의 효력발생시기 ? ⑶ 주권의 기재사항
4. 주식의 전자등록························································································747
⑴ 인정이유 ? ⑵ 주식의 발행에 관한 전자등록 ?
⑶ 주식의 이전 등에 관한 전자등록 ?
⑷ 전자등록의 권리추정적 효력 및 선의취득
5. 주권의 불소지제도·····················································································751
⑴ 인정이유 ? ⑵ 주주의 불소지신고 ? ⑶ 회사의 처리 ? ⑷ 주권의 발행
6. 주권의 상실과 선의취득············································································753
제 2 주주명부··········································································································754
1. 의 의····································································································754
2. 기재사항·····································································································754
3. 비치 · 공시··································································································754
4. 효 력····································································································755
⑴ 대 항 력 ? ⑵ 추정력(자격수여적 효력) ?
⑶ 면 책 력 ? ⑷ 그 밖의 효력
5. 전자주주명부·····························································································758
6. 주주명부의 폐쇄와 기준일········································································758
⑴ 의 의 ? ⑵ 주주명부의 폐쇄 ? ⑶ 기 준 일
7. 실질주주명부·····························································································761
⑴ 의 의 ? ⑵ 작 성 ? ⑶ 효 력
제 4 관 주식의 양도·······························································································762
제 1 주식양도의 의의······························································································762
제 2 주식양도자유의 원칙······················································································763
제 3 주식양도의 제한······························································································764
1. 법률에 의한 제한·······················································································764
⑴ 상법상의 제한 ? ⑵ 특별법상의 제한
2. 정관에 의한 제한·······················································································789
⑴ 인정이유 ? ⑵ 양도제한의 요건 ? ⑶ 양도승인의 절차 ?
세부목차 lxix
⑷ 승인거부의 효력
제 4 주식양도의 방법······························································································798
1. 주권발행 전의 양도방법············································································798
2. 주권발행 후의 양도방법············································································799
⑴ 상법상의 양도방법(주권의 교부) ?
⑵ 자본시장과 금융투자업에 관한 법률상의 특칙
3. 명의개서(〈기명〉주식 양도의 회사에 대한 대항요건)································801
⑴ 의의 및 필요성 ? ⑵ 명의개서의 절차 ? ⑶ 명의개서의 효력 ?
⑷ 명의개서 미필주주(광의의 실기주주)의 지위 ?
⑸ 명의개서대리인
제 5 주식매수선택권·······························································································808
1. 의의 및 성질······························································································808
⑴ 의 의 ? ⑵ 성 질
2. 장점과 단점································································································808
⑴ 장 점 ? ⑵ 단 점
3. 연혁 및 각국의 주식매수선택권제도························································809
⑴ 미 국 ? ⑵ 프 랑 스 ? ⑶ 일 본 ? ⑷ 우리나라
4. 부여의 주체와 대상자···············································································810
⑴ 부여의 주체 ? ⑵ 부여의 대상자
5. 부여방법·····································································································811
⑴ 신주인수권방식 ? ⑵ 자기주식교부방식 ? ⑶ 주가차액교부방식
6. 부여한도·····································································································812
7. 행사가격·····································································································812
8. 부여요건·····································································································813
⑴ 정관의 규정 ? ⑵ 주주총회의 특별결의 ? ⑶ 부여계약 ?
⑷ 등기 및 공시
9. 행 사····································································································814
⑴ 행사요건 ? ⑵ 행사효과
10. 양도제한···································································································816
11. 취 소··································································································816
제 5 관 주식의 담보·······························································································817
제 1 의 의·········································································································817
제 2 주식담보의 자유와 제한·················································································817
1. 주식담보자유의 원칙·················································································817
2. 주식담보의 제한························································································818
lxx 세부목차
⑴ 권리주의 담보 ? ⑵ 주권발행 전의 주식의 담보 ?
⑶ 자기주식의 담보 ? ⑷ 자회사에 의한 모회사주식의 담보
제 3 주식의 입질·····································································································821
1. 성 질····································································································821
2. 주식의 입질방법························································································821
⑴ 약 식 질 ? ⑵ 등 록 질
제 4 주식의 양도담보······························································································824
제 5 주권예탁결제제도에서의 주식담보································································825
제 6 관 주식의 소각·······························································································826
제 1 의 의·········································································································826
제 2 종 류·········································································································826
제 3 배당가능이익으로써 취득한 자기주식의 소각··············································827
1. 목 적····································································································827
2. 배당가능이익으로써 자기주식을 취득하기 위한 요건····························827
⑴ 재원상 제한 ? ⑵ 방법상 제한
3. 자기주식 소각의 방법···············································································828
4. 자기주식 소각의 효과···············································································828
⑴ 자본금에 미치는 영향 ? ⑵ 수권주식수에 미치는 영향
제 7 관 주식의 포괄적 교환 및 이전··································································828
제 1 서 언·········································································································828
제 2 주식의 포괄적 교환························································································829
1. 의 의····································································································829
2. 절 차····································································································830
⑴ 주식교환계약서의 작성 ? ⑵ 주주총회의 승인결의 ?
⑶ 그 밖의 절차 ? ⑷ 변경등기 ? ⑸ 공 시 ?
⑹ 주권상장법인에 대한 특칙
3. 효 과····································································································838
⑴ 완전모회사가 되는 회사의 자본금의 증가 ?
⑵ 완전자회사가 되는 회사의 설립 및 그 회사의 구(舊) 주권의 실효
4. 주식교환무효의 소·····················································································839
⑴ 주식교환무효의 소의 절차 ? ⑵ 주식교환무효판결의 효과
제 3 주식의 포괄적 이전························································································840
1. 의 의····································································································840
2. 절 차····································································································841
⑴ 주식이전계획서의 작성 ? ⑵ 주주총회의 승인결의 ?
세부목차 lxxi
⑶ 그 밖의 절차 ? ⑷ 설립등기 ? ⑸ 공 시 ?
⑹ 주권상장법인에 대한 특칙
3. 효 과····································································································844
⑴ 완전모회사의 설립 ?
⑵ 완전자회사가 되는 회사의 설립 및 그 회사의 구(舊) 주권의 실효
4. 주식이전무효의 소·····················································································845
제 8 관 지배주주에 의한 소수주식의 강제매수···············································845
제 1 서 언·········································································································845
제 2 지배주주의 주식매도청구권···········································································846
1. 의 의····································································································846
2. 주식매도청구권의 법적 성질····································································846
3. 주식매도청구권의 당사자·········································································847
⑴ 주식매도청구권자(지배주주) ?
⑵ 주식매도청구의 상대방(소수주주)
4. 주식매도청구의 행사요건·········································································848
⑴ 경영상 목적을 달성하기 위하여 필요 ? ⑵ 사전 주주총회의 승인 ?
⑶ 소수주주에 대한 사전 공고 · 통지
5. 주식매도청구의 행사효과·········································································849
⑴ 소수주주의 주식매도의무 ? ⑵ 주식매도가액의 결정 ?
⑶ 주식의 이전시기
제 3 소수주주의 주식매수청구권···········································································850
1. 의 의····································································································850
2. 주식매수청구권의 법적 성질····································································850
3. 주식매수청구권의 당사자·········································································851
⑴ 주식매수청구권자(소수주주) ?
⑵ 주식매수청구의 상대방(지배주주)
4. 주식매수청구의 행사요건·········································································851
5. 주식매수청구의 행사효과·········································································851
⑴ 지배주주의 주식매수의무 ? ⑵ 주식매수가액의 결정 ?
⑶ 주식의 이전시기
제 4 절 기 관 852
제 1 관 총 설·····································································································852
제 1 서 설·········································································································852
제 2 주식회사 기관의 연혁적 고찰········································································853
제 3 주식회사 기관의 비교법적 고찰·····································································856
lxxii 세부목차
1. 주주총회·····································································································856
⑴ 한 국 ? ⑵ 독 일 ? ⑶ 프 랑 스 ? ⑷ 영 미
2. 업무집행기관·····························································································858
⑴ 한 국 ? ⑵ 독 일 ? ⑶ 프 랑 스 ? ⑷ 영 미
3. 감독(사)기관······························································································862
⑴ 한 국 ? ⑵ 독 일 ? ⑶ 프 랑 스 ? ⑷ 영 미
4. 종합비교·····································································································865
제 2 관 주주총회(기본사항의 의결기관)·································································871
제 1 의 의·········································································································871
제 2 권한(결의사항)································································································872
1. 상법상의 권한····························································································873
⑴ 기관구성과 관련한 권한 ? ⑵ 회계와 관련한 권한 ?
⑶ 업무감독과 관련한 권한 ? ⑷ 기본기구의 변경과 관련한 권한
2. 특별법상의 권한························································································873
3. 정관상의 권한····························································································874
제 3 소 집·········································································································875
1. 소집권자·····································································································875
⑴ 원 칙 ? ⑵ 예 외
2. 소집시기·····································································································877
⑴ 정기총회 ? ⑵ 임시총회
3. 소집지와 소집장소·····················································································878
⑴ 소 집 지 ? ⑵ 소집장소
4. 소집절차·····································································································879
⑴ 통지의 필요성 ? ⑵ (기명)주주에 대한 통지 ?
⑶ 연기와 속행 ? ⑷ 소집절차를 흠결한 총회
제 4 주주제안권······································································································884
1. 의 의····································································································884
2. 당 사 자······································································································884
⑴ 제안권자 ? ⑵ 상 대 방
3. 행사방법·····································································································885
4. 효 과····································································································885
제 5 의 결 권···········································································································886
1. 의의 및 성질······························································································886
⑴ 의 의 ? ⑵ 성 질
2. 의결권의 수································································································887
세부목차 lxxiii
⑴ 원 칙 ? ⑵ 예 외
3. 의결권의 행사방법·····················································································893
⑴ 총 설 ? ⑵ 의결권의 대리행사 ? ⑶ 의결권의 불통일행사 ?
⑷ 서면에 의한 의결권의 행사 ? ⑸ 전자적 방법에 의한 의결권의 행사 ?
⑹ 의결권행사방법과 관련한 그 밖의 사항
제 6 의사와 결의·····································································································903
1. 의 사····································································································903
⑴ 의사방법 ? ⑵ 의 장 ? ⑶ 의 사 록
2. 결 의····································································································904
⑴ 결의의 의의 및 법적 성질 ? ⑵ 결의방법 ?
⑶ 결의요건(결의능력)
제 7 주주총회결의 반대주주의 주식매수청구권···················································915
1. 의 의····································································································915
2. 주식매수청구권의 법적 성질····································································916
3. 연혁 및 각국의 주식매수청구권·······························································917
4. 주식매수청구권의 당사자·········································································918
⑴ 주식매수청구권자 ? ⑵ 주식매수청구의 상대방
5. 주식매수청구권의 행사절차······································································919
⑴ 사전반대통지 ? ⑵ 사후매수청구
6. 주식매수청구권의 행사효과······································································921
⑴ 회사의 주식매수의무 ? ⑵ 주식매수가액의 결정
7. 주식매수청구권의 실효(失效)···································································924
제 8 종류주주총회···································································································924
1. 의의 및 효력······························································································924
2. 종류주주총회의 결의를 요하는 경우························································925
3. 주주총회와의 이동(異同)··········································································926
제 9 주주총회결의의 하자······················································································926
1. 총 설····································································································926
2. 결의취소의 소····························································································927
⑴ 소의 원인 ? ⑵ 소의 당사자 ? ⑶ 제소기간 ? ⑷ 소의 절차 ?
⑸ 판결의 효력 ? ⑹ 소의 성질
3. 결의무효확인의 소·····················································································934
⑴ 소의 원인 ? ⑵ 소의 당사자 ? ⑶ 제소기간 ?
⑷ 소의 절차 ? ⑸ 판결의 효력 ? ⑹ 소의 성질
4. 결의부존재확인의 소·················································································938
lxxiv 세부목차
⑴ 소의 원인 ? ⑵ 소의 당사자 ? ⑶ 제소기간 ?
⑷ 소의 절차 ? ⑸ 판결의 효력 ? ⑹ 소의 성질
5. 부당결의취소 · 변경의 소··········································································942
⑴ 소의 원인 ? ⑵ 소의 당사자 ? ⑶ 제소기간 ?
⑷ 소의 절차 ? ⑸ 판결의 효력 ? ⑹ 소의 성질
제 3 관 이사회·대표이사 또는 집행임원(업무집행기관)································943
제 1 총 설·········································································································943
제 2 이 사·········································································································948
1. 의 의····································································································948
⑴ 개 념 ? ⑵ 회사와의 관계
2. 선임 · 종임··································································································949
⑴ 선 임 ? ⑵ 종 임
3. 권 한····································································································967
4. 이사의 보수································································································968
⑴ 보수의 개념 ? ⑵ 보수액의 결정방법 ? ⑶ 퇴 직 금
제 3 이 사 회···········································································································972
1. 의 의····································································································972
2. 소 집····································································································973
⑴ 소집권자 ? ⑵ 소집절차
3. 권 한····································································································975
⑴ 집행임원 비설치회사에서의 이사회의 권한 ?
⑵ 집행임원 설치회사에서의 이사회의 권한
4. 결 의····································································································980
⑴ 결의요건(결의능력) ? ⑵ 결의와 관련된 제반사항 ?
⑶ 결의의 하자
5. 의 사 록······································································································984
⑴ 의사록의 작성의무 ? ⑵ 의사록의 기재사항 ?
⑶ 의사록의 열람 또는 등사청구
6. 이사회내 위원회························································································986
⑴ 의 의 ? ⑵ 구 성 ? ⑶ 소 집 ?
⑷ 권 한 ? ⑸ 결 의 ? ⑹ 의 사 록
제 4 대표이사··········································································································990
1. 의 의····································································································990
2. 선임·종임····································································································991
⑴ 선 임 ? ⑵ 종 임
세부목차 lxxv
3. 권 한····································································································993
⑴ 업무집행권 ? ⑵ 대 표 권
4. 표현대표이사···························································································1004
⑴ 의의 및 인정이유 ? ⑵ 타제도와의 관계 ?
⑶ 요 건 ? ⑷ 효 과 ? ⑸ 적용범위
제 5 집행임원········································································································1017
1. 의 의··································································································1017
2. 지 위··································································································1020
3. 선임·해임··································································································1021
4. 권 한··································································································1023
⑴ 업무집행권 ? ⑵ 대 표 권
제 6 이사 · 집행임원의 의무(이사 · 집행임원과 회사간의 이익조정)················1024
1. 일반적 의무(선관의무와 충실의무)··························································1024
2. 경업피지의무···························································································1028
⑴ 경업금지의무(협의의 경업피지의무) ? ⑵ 겸직금지의무
3. 회사기회유용금지의무············································································1031
⑴ 의 의 ? ⑵ 회사의 사업기회 ?
⑶ 회사의 사업기회 유용금지의 대상 ?
⑷ 이사회의 승인 ? ⑸ 상법 제397조의 2 위반의 효과
4. 자기거래금지의무····················································································1038
⑴ 의 의 ? ⑵ 적용범위 ? ⑶ 이사회의 승인 ?
⑷ 상법 제398조 위반의 효과 ? ⑸ 상장회사에 대한 특칙
5. 보고의무···································································································1049
⑴ 의의 및 인정이유 ? ⑵ 내 용 ? ⑶ 위반효과
6. 비밀유지의무···························································································1051
7. 감시의무···································································································1051
⑴ 인정여부 ? ⑵ 인정범위 ? ⑶ 위반효과
제 7 이사 · 집행임원의 책임·················································································1054
1. 회사에 대한 책임·····················································································1055
⑴ 손해배상책임 ? ⑵ 자본금 충실의 책임
2. 제 3 자에 대한 책임··················································································1068
⑴ 의의 및 인정이유 ?
⑵ 대표이사·대표집행임원의 제 3 자에 대한 책임과의 관계 ?
⑶ 책임의 원인 ? ⑷ 책임의 성질 ? ⑸ 제 3 자의 범위 ?
⑹ 책임의 부담자
lxxvi 세부목차
제 8 이사 · 집행임원의 위법행위에 대한 주주의 직접감독································1076
1. 총 설··································································································1076
2. 위법행위 유지청구권···············································································1077
⑴ 의 의 ? ⑵ 요 건 ? ⑶ 당 사 자 ?
⑷ 행사방법 ? ⑸ 효 과
3. 대표소송···································································································1080
⑴ 의 의 ? ⑵ 성 질 ? ⑶ 인정범위 ? ⑷ 당 사 자 ?
⑸ 요 건 ? ⑹ 절 차 ? ⑺ 효 과
제 4 관 감사(監事)·감사위원회·검사인·(외부)감사인·준법지원인·
준법감시인(감사기관)····························································································1087
제 1 감사(監事)····································································································1088
1. 감사제도의 발생······················································································1088
2. 감사(監事)의 의의···················································································1088
3. 감사(監事)의 선임 · 종임·········································································1089
⑴ 선 임 ? ⑵ 종 임
4. 감사(監事)의 권한···················································································1094
⑴ 업무 및 회계감사권 ? ⑵ 그 밖의 권한
5. 감사(監事)의 의무···················································································1097
⑴ 선관의무 ? ⑵ 그 밖의 의무
6. 감사(監事)의 책임···················································································1098
제 2 감사위원회····································································································1100
1. 의 의··································································································1100
2. 설 치··································································································1102
3. 구 성··································································································1103
⑴ 위원의 수 ? ⑵ 위원의 자격 · 선임 · 종임 ? ⑶ 위원의 임기
4. 운 영··································································································1105
⑴ 대표 · 공동대표 ? ⑵ 소집 · 결의 등 ? ⑶ 전문가의 도움
5. 권 한··································································································1106
⑴ 업무 및 회계감사권 ? ⑵ 그 밖의 권한
6. 의 무··································································································1106
⑴ 선관의무 ? ⑵ 그 밖의 의무
7. 책 임··································································································1107
제 3 검 사 인·········································································································1107
1. 의 의··································································································1107
2. 선임기관 및 직무권한·············································································1107
세부목차 lxxvii
⑴ 법원이 선임하는 경우 ? ⑵ 주주총회가 선임하는 경우
3. 자격 · 원수(員數) · 임기 · 등기································································1108
⑴ 자 격 ? ⑵ 원수(員數) ? ⑶ 임 기 ? ⑷ 등 기
4. 책 임··································································································1109
제 4 (외부)감사인·································································································1109
1. 감사인의 의의 · 선임···············································································1109
⑴ 의 의 ? ⑵ 선 임
2. 감사인의 권한 · 의무 · 책임·····································································1111
⑴ 권 한 ? ⑵ 의 무 ? ⑶ 책 임
제 5 준법지원인····································································································1113
1. 준법지원인의 의의···················································································1113
2. 지 위··································································································1114
3. 선임 · 해임································································································1115
4. 의 무··································································································1116
⑴ 선관주의의무 ? ⑵ 보고의무 ?
⑶ 영업비밀준수의무 ? ⑷ 경업피지의무
5. 책 임··································································································1117
6. 준법지원인과 관련한 회사의 의무·························································1117
제 6 준법감시인····································································································1117
제 5 절 자본금의 증감(변동) 1118
제 1 관 총 설···································································································1118
제 2 관 자본금의 증가(신주발행)········································································1121
제 1 보통의 신주발행····························································································1121
1. 의 의··································································································1121
2. 신주인수권·······························································································1122
⑴ 의 의 ? ⑵ 주주의 신주인수권 ? ⑶ 제 3 자의 신주인수권
3. 신주발행의 절차······················································································1135
⑴ 신주발행사항의 결정 ?
⑵ 신주배정기준일 공고 및 청약최고(신주인수권자가 있는 경우) ?
⑶ 모집절차(신주인수권자가 없는 경우) ? ⑷ 인 수(청약과 배정) ?
⑸ 납입 및 현물출자의 이행 ? ⑹ 신주발행의 효력발생 ? ⑺ 등 기
4. 이사의 책임······························································································1143
⑴ 자본금 충실책임 ? ⑵ 손해배상책임
5. 신주의 할인발행(액면미달발행)······························································1144
lxxviii 세부목차
⑴ 할인발행의 의의 ? ⑵ 할인발행의 요건 ?
⑶ 회사채권자의 보호절차
6. 신주의 위법 · 불공정발행에 대한 조치···················································1146
⑴ 총 설 ? ⑵ 주주의 신주발행 유지청구권 ?
⑶ 통모인수인의 책임 ? ⑷ 신주발행의 무효
제 2 특수한 신주발행····························································································1156
1. 준비금의 자본금 전입에 의한 신주발행·················································1156
⑴ 의 의 ? ⑵ 자본금 전입의 대상 ? ⑶ 자본금 전입의 결의기관 ?
⑷ 자본금 전입의 결의시기 · 효력발생시기 ?
⑸ 자본금 전입에 의한 무상주교부 ?
⑹ 신주의 효력발생시기(무상신주의 주주가 되는 시기) ?
⑺ 단주(端株)의 처리 ? ⑻ 무상주교부의 통지 및 물상대위 ?
⑼ 등 기
2. 주식배당에 의한 신주발행······································································1162
3. 전환주식 또는 전환사채의 전환에 의한 신주발행································1163
4. 신주인수권부사채의 신주인수권의 행사에 의한 신주발행···················1164
5. 회사의 흡수합병 또는 분할합병으로 인한 신주발행·····························1164
6. 주식의 포괄적 교환으로 인한 신주발행·················································1165
7. 주식의 병합 또는 분할에 의한 신주발행···············································1166
제 3 관 자본금의 감소(감자〈減資〉)····································································1167
제 1 의 의·······································································································1167
제 2 감자의 방법···································································································1167
1. 액면주식에서 주금액의 감소 또는 무액면주식에서
자본금의 액의 감소·················································································1168
⑴ 액면주식에서 주금액의 감소 ?
⑵ 무액면주식에서 자본금의 액의 감소
2. 주식수의 감소··························································································1168
⑴ 액면주식에서 주식수의 감소 ?
⑵ 무액면주식에서 주식수의 감소
제 3 감자의 절차···································································································1169
1. 주주총회의 특별결의···············································································1169
2. 채권자보호절차························································································1170
3. 주식에 대한 조치·····················································································1170
⑴ 액면주식에서 주금액의 감소의 경우 ?
⑵ 주식수의 감소의 경우
세부목차 lxxix
4. 등 기··································································································1172
제 4 감자의 효력···································································································1172
1. 감자의 효력발생시기···············································································1172
2. 감자차익금(減資差益金)의 처리·····························································1173
제 5 감자의 무효···································································································1173
1. 의 의··································································································1173
2. 감자무효의 소··························································································1174
⑴ 무효원인 ? ⑵ 소의 요건 ?
⑶ 감자무효의 소와 주주총회결의취소의 소 등과의 관계 ?
⑷ 소의 절차 ? ⑸ 판결의 효력
제 6 절 정관의 변경 1176
제 1 정관변경의 의의····························································································1176
제 2 정관변경의 절차····························································································1177
1. 주주총회의 특별결의···············································································1177
2. 종류주주총회의 결의···············································································1178
3. 등 기··································································································1178
제 3 정관변경의 효력····························································································1178
제 4 정관변경에서의 특수한 문제········································································1179
1. 수권주식총수의 증감···············································································1179
2. 액면주식에서 주금액의 변경··································································1180
⑴ 액면주식에서 주금액의 인상 ? ⑵ 액면주식에서 주금액의 인하
제 7 절 회사의 회계 1181
제 1 회계규정의 필요성························································································1181
제 2 회계절차········································································································1183
1. 재무제표 등의 작성·················································································1183
⑴ 상업장부의 작성 ? ⑵ 재무제표 및 그 부속명세서의 작성 ?
⑶ 영업보고서의 작성
2. 재무제표 등의 감사와 비치 · 공시··························································1187
⑴ 재무제표 등의 감사 ? ⑵ 재무제표 등의 비치 · 공시
3. 재무제표 등의 승인 · 공고·······································································1189
⑴ 정기총회에서의 승인 ? ⑵ 재무제표의 승인의 효과 ?
⑶ 대차대조표의 공고
제 3 재무제표의 기재사항····················································································1191
1. 총 설··································································································1191
lxxx 세부목차
2. 자 본 금····································································································1192
3. 준 비 금····································································································1193
⑴ 총 설 ? ⑵ 법정준비금 ? ⑶ 임의준비금
제 4 이익배당········································································································1197
1. 총 설··································································································1197
2. 이익배당(협의의 이익배당 또는 현금배당)··············································1198
⑴ 의 의 ? ⑵ 이익배당의 요건 ? ⑶ 이익배당의 확정 ?
⑷ 이익배당의 기준 ? ⑸ 이익배당금의 지급 ? ⑹ 위법배당의 효과
3. 현물배당···································································································1203
⑴ 현물배당의 의의 · 효용 ? ⑵ 현물배당의 요건
4. 주식배당···································································································1204
⑴ 주식배당의 의의 · 효용 ? ⑵ 주식배당의 본질 ?
⑶ 주식배당의 요건 ? ⑷ 주식배당의 절차 ?
⑸ 주식배당의 효과 ? ⑹ 위법한 주식배당
5. 중간배당···································································································1217
⑴ 중간배당의 의의 및 성질 ? ⑵ 중간배당의 요건 ?
⑶ 중간배당의 확정 ? ⑷ 중간배당의 기준 ?
⑸ 중간배당금의 지급 ? ⑹ 위법중간배당의 효과
제 5 주주의 경리감독····························································································1222
1. 총 설··································································································1222
2. 재무제표와 그 부속명세서 · 영업보고서 및 감사보고서의
열람권(단독주주권)·················································································1222
3. 회계장부열람권(소수주주권)···································································1223
⑴ 인정이유 ? ⑵ 열람권자 ? ⑶ 권리의 내용 ? ⑷ 열람의 거부
4. 검사인을 통한 회사의 업무 · 재산상태조사권(소수주주권)···················1225
⑴ 인정이유 ? ⑵ 검사인의 선임 ? ⑶ 검사인의 업무처리
제 6 회사의 회계에 관한 기타규정······································································1227
1. 회사의 이익공여금지···············································································1227
⑴ 이익공여금지의 취지 ? ⑵ 이익공여의 요건 ?
⑶ 이익공여의 효과(이익반환의무)
2. 회사사용인의 우선변제권·······································································1230
제 8 절 사 채 1232
제 1 관 일반사채···································································································1232
제 1 사채(社債)의 개념························································································1232
1. 사채의 의의······························································································1232
세부목차 lxxxi
⑴ 사채의 경제적 의의 ? ⑵ 사채의 법률적 의의
2. 사채와 주식의 이동(異同)·······································································1233
⑴ 양자의 공통점 ? ⑵ 양자의 차이점 ? ⑶ 양자의 접근
3. 사채의 종류······························································································1235
⑴ 사채권자에게 부여된 권리의 내용에 따른 분류(일반〈보통〉사채 · 특수사채) ?
⑵ 사채권(社債券)에 사채권자의 성명이 기재되어 있는지 여부에 따른 분류(기명사채 · 무기명사채) ?
⑶ 사채를 위하여 물상담보가 설정되어 있는지 여부에 따른 분류(무담보사채 · 담보부사채) ?
⑷ 사채의 등록여부에 따른 분류(현물사채 · 등록사채)
4. 사채계약의 법적 성질·············································································1236
제 2 사채의 모집(발행)························································································1237
1. 총 설··································································································1237
2. 사채모집의 방법······················································································1238
⑴ 총액인수 ? ⑵ 공 모
3. 사채모집의 절차······················································································1240
⑴ 이사회의 결의 ? ⑵ 사채계약의 성립(인수) ? ⑶ 납 입 ?
⑷ 등 기 ? ⑸ 일정규모 이상의 사채발행에 관한 특칙
제 3 채권(債券)과 사채원부 · 사채등록부···························································1242
1. 채권(債券)································································································1242
⑴ 채권(債券)의 의의 · 성질 ? ⑵ 채권(債券)의 종류 ?
⑶ 채권(債券)의 발행 ? ⑷ 등록사채에 있어서의 채권(債券)의 불발행 ?
⑸ 채권(債券)의 재발행
2. 사채원부···································································································1244
3. 사채등록부·······························································································1244
제 4 사채의 양도와 입질······················································································1244
1. 무기명사채의 양도와 입질······································································1245
2. 기명사채의 양도와 입질··········································································1245
⑴ 기명사채의 양도 ? ⑵ 기명사채의 입질
3. 선의취득···································································································1247
제 5 사채의 이자지급과 상환···············································································1247
1. 사채의 이자지급······················································································1247
⑴ 이자지급 ? ⑵ 이권(利券)
2. 사채의 상환······························································································1248
lxxxii 세부목차
⑴ 의 의 ? ⑵ 상환의 기한 ? ⑶ 상환의 방법 ?
⑷ 사채관리회사가 있는 경우의 상환 ? ⑸ 상환청구권의 소멸시효기간 ?
⑹ 기채회사의 불공정행위에 대한 사채관리회사의 취소의 소
제 6 사채권자의 공동단체성················································································1250
1. 사채관리회사···························································································1251
⑴ 사채관리회사의 의의 ? ⑵ 사채관리회사의 자격 ?
⑶ 사채관리회사의 선임 · 해임 ? ⑷ 사무승계자 ?
⑸ 보수 · 비용 ? ⑹ 사채관리회사의 권한 ?
⑺ 사채관리회사의 의무 · 책임 ?
⑻ 둘 이상의 사채관리회사의 권한 · 의무
2. 사채권자집회···························································································1254
⑴ 의의 · 소집 · 구성 ? ⑵ 사채권자집회의 결의 ?
⑶ 사채권자집회의 대표자 ? ⑷ 비용의 부담
제 2 관 특수사채···································································································1258
제 1 상법상의 특수사채························································································1259
1. 전환사채···································································································1259
⑴ 의 의 ? ⑵ 발 행 ? ⑶ 전환의 절차 ? ⑷ 전환의 효력
2. 신주인수권부사채····················································································1267
⑴ 개 념 ? ⑵ 발 행 ? ⑶ 양 도 ? ⑷ 행 사
3. 이익참가부사채························································································1279
⑴ 개 념 ? ⑵ 발 행 ? ⑶ 이익배당참가의 내용
4. 교환사채···································································································1282
⑴ 개 념 ? ⑵ 발 행 ? ⑶ 교환의 절차
5. 상환사채···································································································1284
⑴ 의 의 ? ⑵ 발 행 ? ⑶ 상환의 절차
제 2 특별법상의 특수사채····················································································1285
1. 담보부사채·······························································································1285
⑴ 의 의 ? ⑵ 신탁계약 ? ⑶ 물상담보의 종류 ?
⑷ 담보부사채의 발행 ? ⑸ 수탁회사 ? ⑹ 사채권자집회
2. 파생결합사채···························································································1287
⑴ 총 설 ? ⑵ 상법상 파생결합사채 ?
⑶ 자본시장과 금융투자업에 관한 법률상 파생상품
3. 조건부자본증권························································································1288
⑴ 총 설 ?
⑵ 전환형 조건부자본증권의 발행 및 주식으로의 전환 ?
⑶ 상각형 조건부자본증권의 발행 및 채무재조정
세부목차 lxxxiii
4. 전자증권···································································································1291
⑴ 총 설 ? ⑵ 전자등록의 적용대상 ? ⑶ 제도운영기관 ?
⑷ 계좌의 개설 등 ? ⑸ 주식등의 전자등록 ?
⑹ 전자등록주식등에 대한 권리행사 ?
⑺ 전자등록의 안전성 확보 ? ⑻ 기 타
제 9 절 조직변경 · 합병 및 분할 1298
제 1 조직변경········································································································1298
제 2 합 병·······································································································1299
1. 총 설··································································································1299
2. 합병계약의 내용······················································································1300
⑴ 흡수합병의 합병계약서의 기재사항 ?
⑵ 신설합병의 합병계약서의 기재사항
3. 합병의 절차······························································································1304
⑴ 합병계약서의 작성 ? ⑵ 합병계약서 등의 공시 ?
⑶ 합병계약서의 승인 ? ⑷ 채권자보호절차 ?
⑸ 주식병합 또는 회사설립의 절차 ? ⑹ 이사 · 감사(監事)의 임기 ?
⑺ 보고총회 또는 창립총회의 소집 ? ⑻ 주권상장법인에 대한 특칙 ?
⑼ 합병의 등기 ? ⑽ 합병에 관한 서류의 사후공시
4. 합병의 무효······························································································1307
제 3 분 할·······································································································1308
제10절 해산과 청산 1308
제 1 해 산·······································································································1308
1. 해산원인···································································································1308
2. 해산의 공시······························································································1309
3. 회사의 계속······························································································1309
4. 휴면회사의 해산······················································································1309
제 2 청 산·······································································································1310
1. 총 설··································································································1310
2. 관할법원···································································································1310
3. 청 산 인····································································································1310
⑴ 의 의 ? ⑵ 선임 · 해임 ? ⑶ 직무권한
4. 감사(監事) 또는 감사위원회의 감사보고서제출의무····························1313
5. 청산의 종결······························································································1313
⑴ 청산종결 후의 절차 ? ⑵ 휴면회사의 청산종결의제
lxxxiv 세부목차
제 7 장 유 한 회 사
제 1 절 총 설 1315
제 1 유한회사의 의의····························································································1315
제 2 유한회사의 경제적 기능···············································································1316
제 3 유한회사의 특색····························································································1317
⑴ 자본단체성 ? ⑵ 소규모폐쇄성
제 2 절 설 립 1318
제 1 설립의 특색···································································································1318
제 2 설립절차········································································································1319
1. 정관의 작성······························································································1319
2. 출자의 이행······························································································1319
3. 이사 · 감사(監事)의 선임·········································································1320
4. 설립등기···································································································1320
제 3 설립의 하자(무효와 취소)············································································1320
제 4 설립관여자의 책임························································································1320
1. 사원의 현물출자 등의 부족재산가격 전보책임(변태설립사항)··············1321
2. 사원과 이사 및 감사(監事)의 출자미필액 전보책임(출자불이행)·········1321
제 3 절 사원의 지위 1322
제 1 사원의 자격과 원수(員數)···········································································1322
1. 사원의 자격······························································································1322
2. 사원의 원수(員數)···················································································1322
제 2 사원의 권리의무····························································································1322
1. 사원의 권리······························································································1322
2. 사원의 의무······························································································1323
제 3 사원의 지분···································································································1323
1. 지분의 의의······························································································1323
2. 지분의 양도······························································································1324
3. 지분의 입질······························································································1325
4. 자기지분의 취득 및 질취의 제한····························································1325
제 4 절 회사의 관리 1325
제 1 총 설·······································································································1325
제 2 사원총회········································································································1326
세부목차 lxxxv
1. 의 의··································································································1326
2. 소 집··································································································1326
⑴ 소집권자 ? ⑵ 소집절차 ? ⑶ 소집시기
3. 의 결 권····································································································1327
4. 의사(議事) · 결의·····················································································1328
⑴ 의 사 ? ⑵ 결의요건 ? ⑶ 서면결의
5. 결의의 하자······························································································1329
제 3 이 사·······································································································1329
1. 의 의··································································································1329
2. 선임 · 해임································································································1330
⑴ 선 임 ? ⑵ 해 임
3. 권 한··································································································1330
⑴ 업무집행권 ? ⑵ 대 표 권
4. 의 무··································································································1331
5. 책 임··································································································1331
⑴ 손해배상책임 ? ⑵ 자본금 전보책임(자본금 충실책임)
6. 사원의 이사에 대한 위법행위 유지청구권과 대표소송권·····················1332
제 4 감사(監事)?검사인 및 감사인····································································1332
1. 감 사··································································································1332
2. 검 사 인····································································································1333
3. (외부)감 사 인··························································································1333
제 5 회사의 회계···································································································1333
1. 총 설··································································································1333
2. 재무제표···································································································1334
⑴ 작성 · 제출 ? ⑵ 내 용 ? ⑶ 비치 · 공시
3. 이익의 배당······························································································1334
4. 기타의 경리문제······················································································1334
제 5 절 정관의 변경(자본금의 증감) 1335
제 1 총 설·······································································································1335
제 2 자본금 증가···································································································1335
1. 의 의··································································································1335
2. 증자의 절차······························································································1336
⑴ 사원총회의 특별결의 ? ⑵ 출자의 인수 ? ⑶ 출자의 이행 ?
⑷ 증자의 등기
lxxxvi 세부목차
3. 증자에 관한 책임·····················································································1337
⑴ 사원의 현물출자 등의 부족재산가격 전보책임(변태설립사항) ?
⑵ 이사 및 감사(監事)의 자본금 충실책임
4. 사후증자···································································································1338
제 3 자본금 감소···································································································1338
제 4 증자 · 감자의 무효·························································································1338
제 6 절 합병과 조직변경 1339
제 1 합 병·······································································································1339
제 2 조직변경········································································································1339
제 7 절 해산과 청산 1340
제 1 해 산·······································································································1340
제 2 청 산·······································································································1340
제 8 장 외 국 회 사
제 1 외국회사의 의의····························································································1341
제 2 외국회사의 권리능력····················································································1342
제 3 외국회사에 대한 감독규정···········································································1342
1. 등 기··································································································1342
2. 등기 전의 계속거래의 금지·····································································1343
3. 대차대조표 등의 공고 의무·····································································1343
4. 외국회사의 주권 또는 채권(債券)의 발행과 유통·································1344
5. 영업소의 폐쇄와 청산·············································································1344
제 9 장 벌 칙
제 1 총 설·······································································································1345
제 2 피처벌자········································································································1345
1. 형벌규정이 적용되는 자··········································································1345
2. 행정벌(과태료)이 적용되는 자································································1347
제 3 제재의 종류···································································································1347
1. 형 벌··································································································1347
2. 행 정 벌····································································································1348
제 4 가벌행위········································································································1348
세부목차 lxxxvii
1. 특별배임행위···························································································1348
2. 회사재산을 위태롭게 하는 행위·····························································1349
⑴ 부실보고 등의 행위 ?
⑵ 부정한 자기주식(지분)의 취득 또는 질취(質取)행위 ?
⑶ 법령 또는 정관에 위반한 이익의 배당행위 ?
⑷ 투기에 의한 회사재산의 처분행위
3. 자회사에 의한 모회사의 주식취득제한을 위반한 행위·························1350
4. 주식 또는 사채의 모집 및 매출에 관한 부실문서의 행사·····················1350
5. 납입가장행위···························································································1350
6. 주식의 초과발행행위···············································································1351
7. 증(贈) · 수뢰(收賂)행위···········································································1351
⑴ 임원의 독직(瀆職)행위 ?
⑵ 권리행사방해 등에 관한 증(贈) · 수뢰(收賂)행위
8. 납입책임 면탈행위···················································································1352
9. 주주의 권리행사에 관한 이익공여행위··················································1353
10. 회사법상의 질서위반행위······································································1353
색 인
Ⅰ. 판례색인············································································································1355
Ⅱ. 사항색인············································································································1355
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