제1장 건설분쟁
제1절 건설분쟁의 의의 및 성격_ 3
Ⅰ. 건설분쟁의 의의·································································································· 3
Ⅱ. 건설분쟁의 성격·································································································· 4
제2절 건설관련 분쟁의 형태 및 특성_ 5
Ⅰ. 건물의 건축에 관한 분쟁의 형태············································································· 5
Ⅱ. 건축생산시스템의 특수성에서 발생하는 분쟁의 특성··················································· 5
Ⅲ. 대상의 성질과 당사자의 의식에 근거하는 분쟁의 특성·················································7
제3절 건축관계소송의 심리상의 모든 문제_ 8
Ⅰ. 심리실무에 있어서의 문제점···················································································8
1. 기술적 측면과 전문적 식견의 도입····································································8
2. 쟁점의 복잡성, 방대성·····················································································8
3. 사실인정의 곤란성·························································································· 9
Ⅱ. 건축관계소송의 심리상의 유의점··········································································· 10
1. 쟁점의 복잡성 방대성에의 대처······································································ 10
가. 하자를 주장하는 경우의 법률구성_ 10 나. 하자의 주장방법_ 11
2. 사실인정의 곤란함 극복과 효율적인 증거 조사················································· 12
제4절 재판 외 분쟁해결 방법_ 14
Ⅰ. 의 의············································································································· 14
Ⅱ. 건설분쟁조정위원회···························································································· 14
1. 설립근거와 구성··························································································· 14
가. 설립근거_ 14 나. 구 성_ 15
2. 조정대상······································································································15
3. 조정절차 및 조정의 효과··············································································· 15
Ⅲ. 환경분쟁조정위원회···························································································· 16
1. 설립근거······································································································16
2. 조정대상······································································································16
가. 중앙환경분쟁위원회의 조정대상_ 16
나. 지방환경분쟁조정위원회의 조정대상_ 17
3. 조정절차 및 조정의 효과··············································································· 17
Ⅳ. 건설하도급분쟁조정협의회····················································································17
1. 설립근거와 구성··························································································· 17
2. 조정대상······································································································18
3. 조정절차 및 조정의 효과··············································································· 18
Ⅴ. 공정거래위원회··································································································26
1. 설립근거······································································································26
2. 심사대상······································································································26
가. 공정거래법 적용대상이 아닌 행위유형_ 26 나. 하도급법 적용대상이 아닌 유형_ 27
다. 약관심사의 대상이 아닌 행위유형_ 27
3. 시정?권고조치······························································································ 28
Ⅵ. 하자심사?분쟁조정위원회····················································································· 28
1. 설치근거······································································································28
2. 심사?조정대상······························································································ 28
3. 조정의 효력································································································· 28
Ⅶ. 법원의 민사조정제도···························································································29
제 2 장 건설관련 보전처분
제1절 서 론_ 35
제2절 가 압 류_ 36
Ⅰ. 가압류의 의의··································································································· 36
Ⅱ. 가압류의 종류··································································································· 36
Ⅲ. 관 할············································································································· 36
Ⅳ. 피보전권리········································································································37
1. 금전채권이나 금전으로 환산할 수 있는 채권일 것············································· 37
2. 청구권이 성립하여 있을 것············································································ 37
3. 통상의 강제집행에 적합한 권리일 것·······························································38
Ⅴ. 보전필요성········································································································38
Ⅵ. 가압류 재판 및 집행상 유의사항··········································································· 38
1. 서면심리······································································································38
2. 소명방법······································································································39
3. 담 보·········································································································39
4. 가압류 결정································································································· 39
가. 가압류결정시 주의할 사항_ 39 나. 해방공탁금의 표시_ 40
5. 가압류 결정의 집행·······················································································55
6. 가압류 절차에서의 조정?화해········································································· 57
7. 가압류 결정에 대한 구제방법········································································· 57
가. 즉시항고_ 57 나. 가압류 이의?취소_ 57
제3절 가 처 분_ 61
Ⅰ. 의 의············································································································· 61
Ⅱ. 가처분의 종류··································································································· 61
1. 다툼의 대상에 관한 가처분(민사집행법 제300조 제1항)····································· 61
2. 임시의 지위를 정하기 위한 가처분(민사집행법 제300조 제2항)···························62
Ⅲ. 관 할············································································································· 62
1. 사물관할······································································································62
2. 토지관할······································································································63
Ⅳ. 당사자 적격······································································································ 64
1. 다툼의 대상에 과한 가처분············································································ 64
2. 임시의 지위를 정하기 위한 가처분··································································64
Ⅴ. 피보전권리········································································································65
1. 권리관계가 현존할 것····················································································65
2. 권리관계의 다툼이 있을 것············································································ 66
Ⅵ. 보전의 필요성··································································································· 67
Ⅶ. 심리절차의 특징································································································ 68
1. 심문절차······································································································68
2. 소명방법······································································································68
Ⅷ. 담 보············································································································· 70
Ⅸ. 가처분 결정········································································································70
1. 결정시 주의할 사항·······················································································70
2. 대체집행명령 병기의 허부··············································································71
3. 공시명령의 허부··························································································· 72
4. 심리기간 중 공사의 임의 중지 문제································································ 72
Ⅹ. 가처분 재판의 집행···························································································· 73
1. 서 론·········································································································73
2. 서울중앙지방법원의 결정례············································································ 74
가. 서울중앙지방법원 2006. 3. 16.자 2006타기476 결정_ 75
나. 서울중앙지방법원 2006. 11. 16.자 2006타기3707 결정_ 75
다. 서울중앙지방법원 2007. 8. 31.자 2007타기2282 결정_ 75
라. 서울중앙지방법원 2008. 9. 2.자 2008타기2548 결정_ 76
마. 서울중앙지방법원 2008. 11. 11.자 2008타기2838 결정_ 76
바. 서울중앙지방법원 2008. 11. 13.자 2008타기3272 결정 등_ 76
사. 서울고등법원 2009. 4. 29.자 2008라2363 결정(항고심 판단)_ 76
아. 사생활의 은밀이 침해될 염려가 공사중지가처분에 대한 보전의 필요성으로
인정된 사례_ 78
자. 주거환경 침해와 인격권에 기한 방해배제청구권_ 78
차. 심굴착공공사로 인한 토지침해로 인한 공사중지_ 78
카. 사생활침해를 원인으로 한 공사중지_ 79
ⅩⅠ. 가처분 절차에서의 조정?화해··············································································90
ⅩⅡ. 가처분 결정에 대한 구제방법··············································································91
1. 즉시항고······································································································91
2. 가처분 이의?취소··························································································92
3. 집행정지······································································································94
ⅩⅢ. 건설관련 가처분의 유형····················································································· 96
1. 공사금지가처분·····························································································96
가. 토지의 소유권, 점유권, 이용권, 담보권에 기한 공사금지가처분_ 96
나. 소유권에 기한 공사금지가처분 사례_ 99
다. 유치권에 기한 공사금지가처분 사례_ 102
라. 저당권에 기한 공사금지가처분 사례_ 103
마. 그 밖의 담보권, 이용권 등에 기한 공사금지가처분 사례_ 104
바. 인접 토지?건물 소유자의 물권적 청구권에 기한 공사금지가처분_ 105
사. 상린관계에 기한 공사금지가처분_ 109
아. 그 밖의 상린관계에 기한 공사금지가처분 사례_ 112
자. 일조권?조망권 등에 기한 공사금지가처분_ 112
차. 도급계약 등과 관련된 공사금지가처분_ 125
카. 집합건물 내에서의 공사금지가처분_ 126
타. 기타 비전형적인 공사금지가처분_ 130
파. 증거보전이나 행정행위의 금지 등을 구하는 공사금지가처분_ 132
2. 공사방해금지가처분····················································································· 132
가. 일반론_ 132 나. 구체적 사례_ 136
3. 공사속행가처분···························································································138
제 3 장 건설공사도급계약일반론
제1절 건설공사도급계약의 체결_ 141
Ⅰ. 건설공사도급계약의 의의 및 성격········································································ 141
1. 건설공사도급계약························································································141
가. 의 의_ 141 나. 도급계약의 원칙_ 141
2. 건설공사도급계약의 법적 성질······································································ 143
3. 건설공사도급계약의 종류············································································· 145
가. 공사의 수행방식에 따른 분류_ 145 나. 대가의 지급방식에 따른 분류_ 149
다. 계약의 체결방식에 따른 분류_ 151 라. 계약도서_ 152
Ⅱ. 수급인의 의무································································································· 156
1. 일을 완성할 의무························································································156
2. 목적물의 인도의무······················································································ 157
3. 완성된 건물의 소유권 귀속·········································································· 157
가. 문제의 소재_ 157 나. 학설 및 판례_ 158
4. 하도급과 소유권 귀속·················································································· 160
가. 문제점_ 160 나. 판례의 태도_ 160
5. 미완성 건물을 제3자가 완공한 경우······························································ 161
가. 문제점_ 161 나. 판례의 태도_ 162
6. 건축허가 명의를 대여한 경우······································································· 165
가. 문제점_ 165 나. 판례의 태도_ 165
7. 담보책임····································································································168
가. 의의 및 법적 성격_ 168 나. 담보책임의 요건_ 168
다. 책임의 내용_ 170 라. 하자담보책임기간_ 171
Ⅲ. 도급인의 의무································································································· 172
1. 보수지급의무······························································································172
2. 목적물 수령의무························································································· 174
3. 부수적 의무······························································································· 174
4. 협력의무····································································································175
Ⅳ. 도급에서의 위험부담························································································· 176
1. 채무자 위험부담주의··················································································· 176
2. 위험의 이전시기························································································· 178
3. 위험부담에 관한 특약·················································································· 178
제2절 건설계약의 해제_ 179
Ⅰ. 해제권 일반론································································································· 179
1. 문 제 점····································································································179
2. 건설계약 해제와 소급효 제한······································································· 179
3. 법정해제권·································································································181
가. 이행지체에 의한 해제_ 181 나. 법정해제의 효과_ 184
4. 약정해제권·································································································187
5. 합의해제····································································································188
6. 토지공작물의 특칙······················································································ 188
Ⅱ. 일의 완성 전 도급인의 임의해제권·······································································189
1. 임의해제권의 인정이유················································································ 189
2. 임의해제권의 행사시기················································································ 190
3. 효 과·······································································································190
가. 원 칙_ 190 나. 대금감액청구_ 190
Ⅲ. 도산과 해제권································································································· 192
1. 도급인이 파산한 경우의 수급인의 해제권······················································· 192
2. 수급인이 파산한 경우의 도급인의 해제권······················································· 193
3. 회생절차가 개시된 경우··············································································· 194
4. 건설산업기본법상 해지권············································································· 194
가. 도급인의 해지권_ 194 나. 수급인의 해지권_ 194
Ⅳ. 불안의 항변권································································································· 195
제 4 장 건설분쟁의 당사자
제1절 도급인 및 수급인_ 199
Ⅰ. 당사자의 확정································································································· 199
Ⅱ. 문제가 되는 경우····························································································· 199
1. 명의대여····································································································199
가. 문제점_ 199 나. 명의대여의 판단기준_ 200
다. 행위의 효력_ 204 라. 명의대여자의 책임_ 205
2. 현장소장····································································································209
가. 현장소장의 정의_ 209 나. 현장소장의 업무_ 209
다. 현장소장의 법적 지위_ 210 라. 현장소장의 업무범위_ 210
마. 현장소장이 한 행위의 회사에 대한 효력_ 211
제2절 공동도급인?공동수급인(공동수급체)_ 213
Ⅰ. 공동도급인······································································································213
1. 의 의·······································································································213
2. 공동도급인의 공사대금 채무의 성격·······························································213
Ⅱ. 공동수급체······································································································214
1. 서 론·······································································································214
가. 개 념_ 214 나. 공동계약의 특성_ 215
2. 운영형태 및 법적 성격················································································ 215
가. 운영형태_ 215
나. 건설공사공동수급체의 법적 성격_ 216
다. 공동수급표준협정서의 법적 성질_ 227
3. 건설공사공동수급체의 공사대금채권 관련 법률문제··········································229
가. 문 제 점_ 229 나. 발주자에 대한 공사대금 청구_ 230
다. 공동수급체의 책임(시공 및 하자담보책임)_ 234
라. 선급금 반환채무_ 235
마. 공동이행방식의 공동수급체와 하수급인 등의 관계_ 236
사. 공동수급체 구성원 사이의 공동원가분담금_ 238
4. 공사대금채권에 대한 제3자의 강제집행··························································239
가. 문 제 점_ 239
나. 강제집행 성립 여부에 대한 논의_ 240
5. 잔존구성원의 공사대금 청구········································································· 241
6. 가장공동수급체···························································································242
가. 의 의_ 242 나. 형식적 구성원의 책임_ 242
다. 가장 공동수급체 구성원에 대한 제재_ 243
제3절 하수급인_ 244
Ⅰ. 하도급 일반론································································································· 244
1. 하도급의 의의 및 법적 성질········································································· 244
가. 의 의_ 244 나. 법적 성격_ 244
2. 하도급의 제한···························································································· 245
가. 당사자의 특약 또는 일의 성질에 의한 제한_ 245
나. 건설산업기본법에 의한 하도급 제한_ 245
3. 하도급의 공정화를 위한 규정······································································· 249
가. 목 적_ 249 나. 하도급법상의 규정_ 252
다. 건설산업기본법상의 규정_ 261
Ⅱ. 하수급인의 행위로 인한 책임··············································································263
1. 도급인에게 손해가 발생한 경우·····································································263
가. 원수급인의 책임_ 263 나. 하수급인의 책임_ 264
2. 제3자에 대한 불법행위책임·········································································· 265
가. 원수급인의 책임_ 265 나. 하수급인의 책임_ 267
다. 도급인의 책임_ 267
Ⅲ. 하도급대금의 직접지급······················································································ 268
1. 의의 및 근거······························································································268
2. 하도급법상 직접지급의 사유········································································· 268
가. 직접지급청구권_ 268
나. 원사업자의 발주자에 대한 공사대금채권의 소멸시기_ 272
다. 직접지급 사유 발생 이전에 집행된 압류의 효력_ 273
라. 직접청구권의 범위_ 275
마. 지급요청한 하수급이 여럿인 경우 우열관계_ 276
바. 하도급공사대금의 직접지급과 선급금 정산관계_ 276
사. 하도급공사대금 직접지급청구권 발생요건의 판단기준시점_ 278
아. 직접지급의무의 이행기 및 지연이자_ 278
자. 도급인의 항변_ 279 차. 의무위반에 대한 제재_ 279
3. 건설산업기본법상의 직접지급······································································· 279
가. 의무적 직접지급_ 279 나. 임의적 직접지급_ 280
다. 하도급대금 직접지급의 중지_ 281
4. 당사자 간의 합의에 의한 경우······································································ 281
제4절 연대보증인_ 286
Ⅰ. 연대보증시공자································································································ 286
1. 의의 및 성격······························································································286
2. 연대보증시공자의 책임범위·········································································· 286
3. 도급인의 손해확대방지의무와 연대보증인의 항변권··········································287
Ⅱ. 주택분양보증···································································································288
1. 의 의·······································································································288
2. 법적 성질·································································································· 288
3. 주택분양보증의 법률관계············································································· 289
가. 잔금지급청구권_ 289 나. 지연손해금_ 290
다. 승계시공자와의 관계_ 290
제5절 설 계 자_ 293
Ⅰ. 건축설계의 의의 및 설계도서··············································································293
1. 설계의 의의······························································································· 293
2. 설계자의 업무···························································································· 293
3. 설계도서의 종류························································································· 294
4. 설계도서 해석의 우선순위············································································ 294
5. 건축단계별 설계도서의 흐름········································································· 296
Ⅱ. 설계자의 자격································································································· 296
Ⅲ. 설계계약의 성립·······························································································297
1. 설계계약의 체결························································································· 297
2. 설계계약의 법적 성질·················································································· 297
Ⅳ. 설계계약의 해제･해지························································································298
1. 해제 및 해지의 자유··················································································· 298
2. 설계비 청구권···························································································· 299
가. 설계비 청구권_ 299 나. 설계비 청구권의 소멸시효_ 300
3. 설계자의 손해배상책임················································································ 300
Ⅴ. 건축저작물······································································································300
1. 건축저작물·································································································300
가. 개 념_ 300
나. 건축저작물의 유형 및 건축물의 보호요건_ 301
2. 건축저작물의 저작자··················································································· 302
3. 건축저작물에 대한 저작권의 내용··································································303
가. 저작재산권_ 303 나. 이 용 권_ 305
다. 저작인격권_ 306
제6절 감 리 자_ 310
Ⅰ. 건설감리의 의의·······························································································310
Ⅱ. 공사감리계약의 법적 성질··················································································310
1. 법적 성질 - 위임계약_ 310 2. 구별실익_ 312
Ⅲ. 감리자의 보수청구권························································································· 312
1. 감리의 부수산정기준··················································································· 312
가. 건축사법에 의한 건축사의 감리대가 지급_ 312
나. 건설기술관리법에 의한 감리대가_ 314
다. 주택법에 의한 감리대가 지급_ 314
2. 감리계약이 중도에 종료된 경우 감리대가의 정산·············································315
가. 감리계약의 중도해지와 그에 따른 법률관계_ 315
나. 감리 중단시 보수청구권_ 315
3. 감리비의 감액 문제····················································································· 316
Ⅳ. 공사감리자의 책임····························································································316
1. 책임 일반·································································································· 316
2. 준공검사(사용승인) 후 책임여부····································································318
제 5 장 공사대금
제1절 공사대금채권_ 321
Ⅰ. 공사대금채권의 성립시기 등··············································································· 321
1. 성립시기····································································································321
2. 공사원가계산 방식 재경비 산정기준·······························································322
Ⅱ. 공사대금채권의 소멸시효··················································································· 323
Ⅲ. 공사대금채무의 변제기······················································································ 323
1. 지급시기의 약정이 있는 경우······································································· 323
2. 지급시기의 약정이 없는 경우······································································· 327
3. 계약이 중도에 해제 또는 해지된 경우····························································327
4. 공사의 완성여부························································································· 328
가. 공사의 미완성과 하자의 구별기준_ 328
나. 예정된 최후 공정의 종료 여부_ 329
Ⅳ. 기성고 산정···································································································· 330
1. 기성고의 의의···························································································· 330
가. 의 의_ 330 나. 확정시점_ 330
2. 기성고 산정 방식························································································331
가. 원 칙_ 331 나. 도급계약이 중도해지된 경우_ 333
다. 비율이 잘못 산정된 경우_ 335 라. 공사대금의 변경이 있는 경우_ 336
3. 기성고 산정 시 단가의 결정········································································· 339
가. 단가의 결정_ 339 나. 공사비 내역서가 있는 경우_ 339
다. 공사비 내역서가 없는 경우_ 339
4. 지연손해금 기산일······················································································ 340
Ⅴ. 실제공사비를 근거로 한 공사비 산정····································································340
1. 정액도급이 아닌 경우의 공사비 정산····························································· 340
2. 기공사 부분 공사비 정산············································································· 341
3. 실비정산 보수가산식 계약의 실비 정산·························································· 341
4. 내역입찰의 수량변동 및 계약금액··································································342
제2절 추가공사대금_ 347
Ⅰ. 추가공사·········································································································347
1. 추가공사의 의의························································································· 347
2. 추가공사에 따른 문제점··············································································· 348
3. 추가공사대금의 확정··················································································· 348
가. 추가공사대금 확정시기_ 348
나. 추가공사를 인정하지 않기로 하는 약정의 효력_ 349
다. 추가공사대금 판단기준_ 350
4. 추가공사대금 감정······················································································ 350
5. 추가공사대금의 입증책임············································································· 351
Ⅱ. 물가변동 및 설계변경 등에 따른 추가공사대금······················································· 351
1. 계약금액 조정의 필요성 및 원칙··································································· 351
2. 물가변동으로 인한 계약금액 조정··································································353
가. 사인 간의 계약의 경우_ 353 나. 국가와의 계약의 경우_ 354
다. 계약이 없는 경우_ 358
3. 설계변경으로 인한 계약금액 조정··································································358
가. 사인 간의 계약의 경우_ 358 나. 국가와의 계약의 경우_ 359
4. 기타 계약내용 변경으로 인한 계약금액 조정···················································361
Ⅲ. 추가공사대금과 압류의 효력··············································································· 361
제3절 부가가치세_ 364
Ⅰ. 부가가치세 일반론····························································································364
1. 의 의·······································································································364
2. 과세대상 및 과세기간·················································································· 364
가. 과세대상_ 364 나. 과세기간_ 366
3. 부가가치세의 면세······················································································ 366
4. 과세체계····································································································367
가. 과세표준_ 367
나. 토지와 건물공급시 과세표준 안분계산_ 367
Ⅱ. 건설공사도급계약에 따른 부가가치세 지급의무······················································· 369
1. 서 설·······································································································369
2. 당사자 사이에 부가가치세 납부에 약정이 있는 경우········································ 369
3. 수급인이 부가가치세를 납부하지 아니한 경우················································· 370
4. 당사자 사이에 부가가치세 납부에 관한 약정이 없는 경우·································371
Ⅲ. 하자있는 세금계산서와 매입세액의 공제 문제························································ 372
1. 세금계산서의 필수적 기재사항 누락 또는 오류의 경우····································· 372
2. 세금계산서가 교부되지 않은 경우의 배상책임················································· 373
Ⅳ. 국민주택 건설과 부가가치세 면제········································································ 374
1. 관련 법령·································································································· 374
2. 부가가치세 면제의 범위··············································································· 374
Ⅴ. 관련 문제······································································································· 375
1. 부가가치세 청구채권의 양도········································································· 375
2. 주택재개발･재건축조합, 조합원 및 시공자 간 부가가치세의 부담·······················375
제4절 공사대금채권의 확보_ 377
Ⅰ. 유 치 권·········································································································377
1. 의 의·······································································································377
2. 유치권의 성립요건······················································································ 377
가. 공사대금채권과 건축물과의 견련관계_ 377
나. 공사대금채권의 변제기 도래_ 379
다. 건물의 점유_ 380
라. 유치권의 성립을 배제하는 특약의 부존재_ 381
마. 담보의 제공_ 381
3. 유치권과 다른 권리의 우선관계·····································································381
가. 압류효력 발생 후 유치권 취득_ 381
나. 가압류 후 본압류 이전에 유치권 취득_ 382
다. 저당과 유치권의 우선관계_ 384
라. 신축건물 수급인의 유치권행사 가부_ 384
4. 하수급인의 유치권 행사의 가부·····································································385
5. 효 과·······································································································386
가. 목 적_ 386 나. 경매와 간이변제충당_ 386
다. 과실취득권 및 유치물사용권_ 387 라. 철거대상 건물에 대한 유치권 여부_ 387
마. 유치권자의 의무_ 387 바. 유치권의 소멸_ 388
5. 유치권부존재확인의 소················································································ 389
가. 허용 여부_ 389 나. 소의 형식과 내용_ 390
Ⅱ. 저당권설정청구권····························································································· 390
1. 의 의·······································································································390
2. 요 건·······································································································391
3. 사해행위와의 관계······················································································ 391
Ⅲ. 미등기 건물에 대한 공사대금채권 확보수단··························································· 392
Ⅳ. 공사대금채권에 대한 강제집행············································································ 393
1. 공사대금채권이 가압류된 경우······································································ 393
2. 공사대금채권에 대한 압류 및 추심명령이 있는 경우········································ 394
3. 공사대금채권에 대한 압류 및 전부명령이 있는 경우········································ 395
4. 임금에 대한 압류 금지················································································ 397
가. 임금에 대한 압류금지_ 397
나. 압류대상에서 제외되는 임금의 산정방법 등_ 397
다. 도급계약서 등에 노임액과 그 밖의 공사비 부분을 구분하지 아니한 경우_ 398
라. 건설공사계약이 중도 해지되어 공사대금 정산합의가 이루어졌고 그때까지 기성금으로 수령한 공사대금이 있는 경우, 정산합의에 따른 잔여 공사대금 중 압류가 금지되는 노임채권의 범위를 산정하는 방법_ 398
마. 노임에 대한 양도의 금지여부_ 398
제5절 공사대금채무_ 400
Ⅰ. 공사대금의 대물변제························································································· 400
1. 대물변제약정의 의의··················································································· 400
2. 대물변제약정의 효력··················································································· 401
가. 약정의 형식과 내용_ 401 나. 대물변제약정의 효력_ 401
다. 대물변제와 사해행위_ 402
3. 도급인의 대위변제······················································································ 404
가. 의 의_ 404
나. 도급인과 수급인의 합의한 경우_ 405
다. 도급인과 수급인이 합의하지 않은 경우_ 406
라. 하도급거래 공정화에 관한 법률에 따른 직접 지급 청구_ 407
4. 채무인수_ 407
Ⅱ. 소멸시효·········································································································408
1. 의 의·······································································································408
2. 도급을 받은 자의 공사에 관한 채권의 의미···················································· 408
3. 소멸시효의 기산점······················································································ 409
제6절 하자담보책임(하자보수청구･손해배상청구)_ 410
Ⅰ. 하자담보책임 개관····························································································410
1. 건축물 하자의 의의····················································································· 410
가. 하자담보책임 일반_ 410 나. 건축물 하자의 개념_ 410
다. 건축물 하자의 분류_ 411
2. 하자의 판정기준························································································· 413
가. 계약내용(설계도서, 계약상 약정 위반)에 따른 기준_ 413
나. 거래관념 또는 사회통념_ 415 다. 그 외 주요하자의 판정기준_ 415
3. 건물공사의 미완성과 하자의 구별··································································430
가. 미완성의 개념_ 430 나. 구별기준_ 430
다. 구별의 실익_ 431
4. 하자의 입증책임························································································· 432
5. 하자담보책임의 법적 성격············································································ 432
가. 법정무과실책임설_ 432 나. 채무불이행책임설_ 433
다. 판례의 태도_ 434
6. 채무불이행책임과의 경합············································································· 434
7. 하자담보책임의 도해··················································································· 435
8. 하자담보책임 관련 법령의 적용범위·······························································439
가. 민 법_ 439
나. 집합건물의 소유 및 관리에 관한 법률_ 442
다. 주택법_ 446 라. 건설산업기본법_ 450
마. 하자담보책임에 관한 법률 간의 규정_ 451
Ⅱ. 민법상 하자담보책임의 내용··············································································· 453
1. 하자보수청구······························································································453
가. 의 의_ 453 나. 성립요건_ 453
다. 하자보수비용 산정 일반사항_ 454 라. 하자보수청구의 제한_ 456
마. 하자보수비용의 과다성_ 458 바. 하자보수청구권의 행사_ 458
2. 손해배상청구······························································································459
가. 유 형_ 459 나. 손해배상의 범위_ 461
다. 손해배상액 산정의 기준시기_ 464 라. 과실상계_ 465
마. 동시이행항변권_ 467
바. 공사대금청구권과 공사대금채권의 상계_ 470
3. 공사대금의 감액청구 및 계약해제··································································470
가. 공사대금의 감액청구_ 470 나. 계약해제_ 471
4. 하자담보책임의 존속기간············································································· 472
5. 하자담보책임의 배제··················································································· 473
가. 배제사유_ 473 나. 배제의 예외_ 474
Ⅲ. 집합건물의 하자담보책임··················································································· 475
1. 집합건물의 소유 및 관리에 관한 법률상 하자담보책임····································· 475
가. 민법의 준용_ 475 나. 수분양자의 계약해제_ 475
다. 하자담보청구권의 주체_ 476 라. 전득자의 하자담보청구권_ 478
마. 집합건물 시공자의 하자담보책임_ 479 바. 손해배상청구권의 소멸시효_ 479
2. 주택법상의 하자담보책임············································································· 480
가. 하자보수청구권_ 480 나. 하자보수청구권자_ 481
다. 하자보수청구절차_ 482
3. 하자보수보증금제도····················································································· 483
가. 하자보수보증금의 의의_ 483 나. 하자보수보증금의 예치금액_ 484
다. 하자보수보증금의 청구절차_ 485 라. 하자보수보증의 대상인 하자_ 486
마. 하자보수보증금의 지급_ 488 바. 하자보수보증금의 반환_ 491
4. 하자담보책임기간························································································492
가. 근거규정_ 492 나. 하자담보책임기간의 법적 성격_ 507
다. 입증책임_ 510
제7절 지체상금_ 511
Ⅰ. 지체상금의 의의 및 법적 성격············································································ 511
1. 의 의·······································································································511
2. 법적 성격·································································································· 512
3. 표준계약서상의 지체상금 규정 사례·······························································514
가. 공공공사의 경우_ 514 나. 민간공사의 경우_ 516
Ⅱ. 지체상금 청구의 요건························································································518
1. 지체상금 약정이 있을 것············································································· 518
가. 지체상금 약정_ 518
나. 공사도급계약이 중도에 해제･해지된 경우_ 518
2. 수급인의 의무 불이행(이행지체)····································································520
가. 수급인의 공사완공의 지체 및 귀책사유_ 520
나. 인도의무의 지체_ 521
다. 수급인의 면책 주장_ 522
3. 손해의 발생 여부························································································524
4. 초과손해, 특별손해의 청구여부····································································· 525
Ⅲ. 지체상금의 산정·······························································································525
1. 기준금액····································································································525
가. 원 칙_ 525 나. 특수한 문제_ 526
2. 대상기간····································································································528
가. 지체기간의 시기(始期) 및 종기(終期)_ 528 나. 종기의 제한_ 529
다. 지체일수 산정의 구체적 사례_ 530 라. 미산입되는 지체일수_ 531
3. 지체상금의 감액과 과실상계········································································· 531
4. 지체상금의 이행기 및 이행지체·····································································533
5. 지체상금 약정이 없는 경우·········································································· 534
6. 분할 가능한 공사의 지체상금 계산································································ 534
Ⅳ. 지체상금에 대한 연대보증인의 보증책임······························································· 535
Ⅴ. 해제시 지체상금 약정의 적용여부········································································ 535
1. 법정해제의 경우························································································· 535
2. 약정해제의 경우························································································· 536
제8절 계약보증금_ 537
Ⅰ. 계약보증금의 의의····························································································537
1. 의 의·······································································································537
2. 종 류·······································································································540
Ⅱ. 법적 성질······································································································· 541
1. 계약보증금에 관한 귀속약정이 없는 경우······················································· 541
2. 계약보증금에 관한 귀속약정이 있는 경우······················································· 542
Ⅲ. 계약보증금의 청구 또는 몰취의 요건····································································546
1. 입증책임 및 수급인의 의무불이행··································································546
2. 도급계약의 해제························································································· 548
Ⅳ. 계약보증금이 담보하는 손해의 범위····································································· 548
1. 원 칙·······································································································548
2. 구체적인 경우···························································································· 548
가. 지체상금_ 548
나. 선급금 반환채무 및 수급인의 원상회복의무_ 549
다. 공사대금의 변경이 있는 경우_ 550
라. 소멸시효의 기산점_ 551
Ⅴ. 공사도급계약과 보증보험계약··············································································551
1. 개 념·······································································································551
2. 보증계약의 종류························································································· 552
가. 기관보증_ 555 나. 보증보험_ 555
3. 보증인 및 보험자························································································555
4. 보증사고와 보증기간··················································································· 556
5. 금융기관 등의 항변····················································································· 559
가. 도급계약 또는 계약보증금 약정의 부존재를 이유로 한 면책_ 559
나. 보증보험계약의 취소_ 561 다. 약관상의 보증대상에서 제외_ 564
라. 보증기간 경과 후의 보험사고 발생_ 565
6. 소멸시효····································································································565
제9절 선 급 금_ 571
Ⅰ. 선급금의 의의································································································· 571
1. 의 의·······································································································571
2. 법률의 규정······························································································· 571
Ⅱ. 선급금의 정산································································································· 572
1. 정산방법····································································································572
2. 계약해제와 선급금의 반환············································································ 574
3. 공동수급체와 선급금의 반환········································································· 577
4. 연대보증인의 선급금 반환············································································ 577
5. 계약보증인의 선급금반환············································································· 579
6. 하도급대금 직접지급과 선급금 정산·······························································580
Ⅲ. 선급금보증계약 또는 보증보험계약·······································································582
1. 보증의 범위······························································································· 582
2. 금융기관 등의 항변····················································································· 583
가. 기성금 채권과 상계_ 583
나. 하자보수보증금의 공제주장 여부_ 584
제10절 도산절차와 공사도급계약_ 585
Ⅰ. 도산절차의 의의·······························································································585
1. 파산절차····································································································585
2. 회생절차····································································································585
Ⅱ. 도산절차가 공사도급계약에 미치는 영향······························································· 586
1. 문 제 점····································································································586
2. 쌍방 미이행쌍무계약의 처리········································································· 587
가. 파산절차의 경우_ 587 나. 회생절차의 경우_ 587
3. 건설도급계약의 경우··················································································· 588
가. 파산절차의 경우_ 588 나. 회생절차의 경우_ 590
제 6 장 건설공사와 제3자의 손해
제1절 불법행위책임_ 593
Ⅰ. 불법행위책임의 요건························································································· 593
1. 고의 또는 과실···························································································593
2. 인과관계····································································································594
Ⅱ. 불법행위의 주체·······························································································594
1. 직접 행위자······························································································· 594
2. 수 급 인····································································································595
3. 도 급 인····································································································595
가. 원 칙_ 595
나. 도급인이 사용자책임을 지기 위한 요건_ 595
다. 도급인의 사용자책임에 관한 판례의 태도_ 596
4. 건물의 점유자 및 소유자············································································· 600
Ⅲ. 손해배상의 범위·······························································································601
1. 원 칙·······································································································601
2. 적극적 손해······························································································· 601
가. 하자보수비_ 601 나. 대체주거비_ 603
다. 안전진단비용_ 603
3. 소극적 손해······························································································· 604
가. 영업손해_ 604 나. 일실차임 손해_ 604
4. 위 자 료····································································································604
제2절 일조권 침해_ 606
Ⅰ. 서 설··········································································································· 606
1. 일조권의 의의···························································································· 606
2. 일조권의 법적 성격····················································································· 606
가. 학 설_ 606 나. 판 례_ 607
3. 일조권보호를 위한 법률의 규정·····································································609
Ⅱ. 분쟁의 당사자································································································· 611
1. 손해배상청구권을 가지는 자(원고, 피해자)····················································· 611
가. 피해건물의 소유자 및 거주자_ 611
나. 일조방해가 초래된 후 피해 건물의 소유권을 취득한 자_ 611
다. 실질적인 처분권자_ 611
2. 손해배상청구의 상대방이 될 수 있는 자(피고, 가해자)····································· 612
가. 가해건물의 소유자 및 공사시행자_ 612
나. 가해건물의 수급인_ 612
다. 피해건물의 시공자 및 분양자_ 620
라. 건축허가 등을 한 행정청이 속한 국가 또는 지방자치단체_ 623
Ⅲ. 일조권보호의 판단기준: 수인한도론······································································624
1. 서 설·······································································································624
2. 수인한도 판단의 제요소··············································································· 625
가. 일조피해의 정도_ 625 나. 지역적 특성_ 625
다. 공법적 규제의 준수 여부_ 628
라. 건물의 용도 및 피해건물 또는 토지의 용도_ 629
마. 피해건물의 상태_ 629 바. 피해회피의 가능성_ 630
사. 건물의 선･후관계_ 630 아. 건축제한의 합의가 있는 경우_ 631
자. 신축 건물들 간 일조권 침해_ 631
Ⅳ. 복수건물에 의한 일조방해(복합일조방해)·······························································632
1. 침해의 유형······························································································· 632
2. 책임의 분배······························································································· 632
가. 가해건물들이 동시에 건축되는 경우_ 632
나. 가해건물들이 시간적 관련성을 갖지 아니하고 건축된 경우_ 634
Ⅴ. 손해배상청구의 요건 및 범위··············································································635
1. 손해배상청구의 요건··················································································· 635
2. 손해배상의 종류와 범위··············································································· 636
가. 재산적 손해(토지･건물의 가치하락 금액)_ 636
나. 광열비, 건조비 등의 지출 증대_ 639
3. 정신적 손해······························································································· 639
Ⅵ. 소멸시효의 기산점····························································································640
Ⅶ. 일조권 침해에 대한 구제수단··············································································641
1. 손해배상청구······························································································641
2. 방해제거 및 방해예방청구············································································ 642
3. 보상청구····································································································643
4. 일조권 침해에 대한 감정의 문제··································································· 644
제3절 조망권 침해_ 648
Ⅰ. 서 설··········································································································· 648
1. 의 의·······································································································648
2. 조망권의 보호···························································································· 649
가. 영업이익_ 649 나. 생활이익_ 649
Ⅱ. 조망권의 인정 여부·························································································· 650
Ⅲ. 조망권의 법적 보호요건·····················································································651
1. 조망가치의 필요성······················································································ 651
2. 권 원 성····································································································652
3. 장소의 조망성···························································································· 652
4. 시간적 선주(先住)······················································································· 653
5. 조망목적성과 주변 토지 이용과의 조화성······················································· 653
Ⅳ. 조망권보호의 판단기준(수인한도)·········································································653
Ⅴ. 사법적 구제···································································································· 658
1. 방해제거청구······························································································658
2. 방해예방청구······························································································659
3. 손해배상청구······························································································659
제4절 사생활침해_ 660
Ⅰ. 서 설··········································································································· 660
Ⅱ. 사생활침해의 발생시점······················································································ 660
Ⅲ. 일조방해, 조망방해와의 관계·············································································· 660
제5절 소음･진동피해_ 661
Ⅰ. 서 설··········································································································· 661
1. 소음･진동의 의미························································································661
가. 소음발생원_ 661 나. 진동발생원_ 661
다. 소음의 실태 및 영향_ 662
2. 공법적 규제······························································································· 662
가. 소음환경기준_ 662 나. 소음･진동관리법_ 664
다. 주택건설기준 등에 관한 규정_ 666 라. 층간소음 문제_ 666
Ⅱ. 당 사 자·········································································································669
1. 원 고·······································································································669
2. 피 고·······································································································669
가. 건설공사 소음_ 669 나. 교통소음_ 670
Ⅲ. 인과관계·········································································································671
Ⅳ. 위 법 성·········································································································671
Ⅴ. 손해액의 산정································································································· 672
Ⅵ. 사법적 구제···································································································· 673
제 7 장 소송을 통한 분쟁해결
제1절 소송의 제기_ 677
Ⅰ. 소송의 준비···································································································· 677
1. 소송의 준비······························································································· 677
2. 소송의 유형······························································································· 679
가. 건설사업단계에 따른 소송의 유형_ 679
Ⅱ. 소장의 작성···································································································· 684
1. 서 설·······································································································684
2. 소장의 기재사항························································································· 685
가. 필요적 기재사항_ 685 나. 임의적 기재사항_ 688
3. 소장의 구체적인 예시·················································································· 701
Ⅲ. 소장의 제출···································································································· 722
1. 소장의 접수······························································································· 722
2. 인지의 첩부······························································································· 722
3. 소송목적의 가액························································································· 722
4. 송달료의 예납···························································································· 723
제2절 소송의 진행_ 726
Ⅰ. 소장부본의 송달·······························································································726
1. 송 달·······································································································726
가. 의 의_ 726 나. 송달기관_ 726
다. 송달서류_ 727 라. 송달받을 사람_ 727
마. 송달실시방법_ 729 바. 송달의 하자_ 739
2. 소제기 효과······························································································· 741
가. 소송계속(소제기의 소송법상 효과)_ 742
나. 중복제소 금지_ 742 다. 실체법상의 효과_ 743
Ⅱ. 답변서의 제출································································································· 744
1. 개 설·······································································································744
가. 답변서의 제출의무_ 744 나. 변론준비절차 회부_ 745
다. 답변내용_ 745
2. 청구취지에 대한 답변·················································································· 751
가. 소송이송 신청_ 751 나. 소각하의 답변_ 753
다. 본안의 답변_ 754 라. 부수적 신청_ 754
3. 청구원인에 대한 답변·················································································· 755
가. 의 의_ 755 나. 답변의 방식_ 755
다. 인부기재의 방법_ 756 라. 인부에 관하여 유의할 사항_ 757
4. 피고의 주장(항변 등)···················································································757
가. 의 의_ 757 나. 항 변_ 758
다. 항변의 기재방법_ 758 라. 유의사항_ 758
5. 기타 관련사항···························································································· 759
가. 증거방법_ 759 나. 결론부분_ 759
다. 첨부서류_ 759
6. 답변서의 제출방법 및 효과·········································································· 760
가. 답변서 부제출시 무변론 판결_ 760 나. 부제출자가 출석한 경우_ 760
다. 부제출자가 불출석한 경우－자백간주_ 760
라. 양쪽 당사자가 출석하지 아니한 경우_ 760 마. 변론준비절차 종결_ 761
Ⅲ. 반소 및 소의 변경····························································································761
1. 반 소·······································································································761
가. 반소의 의의_ 761 나. 반소의 요건_ 764
다. 반소제기의 절차와 심판_ 765 라. 절 차_ 766
마. 특수한 반소_ 767
2. 소의 변경·································································································· 767
가. 개 설_ 767 나. 청구취지의 변경_ 768
다. 청구원인의 변경_ 769 라. 단순한 공격방법의 변경_ 769
마. 소의 변경의 종류_ 770 바. 소의 변경의 요건_ 770
사. 절 차_ 771 아. 당사자의 변경_ 771
자. 임의적 당사자 변경_ 781 차. 청구의 변경_ 787
3. 소송참가····································································································794
가. 의 의_ 794 나. 보조참가_ 795
다. 공동소송적 보조참가_ 799 라. 독립당사자 참가_ 801
마. 승계참가_ 807 바. 당연승계(포괄승계)_ 807
사. 특정승계_ 808 아. 인수승계(민소 제82조)_ 811
자. 공동소송참가_ 813 차. 소송고지_ 817
Ⅳ. 준비서면의 공방·······························································································820
1. 변론준비절차······························································································820
가. 의의의 목적_ 820
나. 변론준비절차의 구체적 진행방식_ 820 다. 유 형_ 821
라. 준비서면과 진술과의 관계_ 821
2. 준비서면의 의의························································································· 821
3. 준비서면의 기재사항··················································································· 822
가. 준비서면의 의의_ 822 나. 준비서면의 종류_ 822
다. 준비서면의 기재사항_ 822
4. 준비서면의 실질적 요소··············································································· 823
가. 공격 또는 방어방법의 기재_ 824
나. 상대방의 청구 및 공격 또는 방어방법에 대한 진술_ 827
5. 준비서면의 제출························································································· 828
가. 제출의 시기_ 828 나. 인용문서의 첨부_ 828
6. 준비서면 제출 및 미제출의 효과··································································· 829
가. 미제출의 불이익_ 829 나. 준비서면 제출의 효과_ 830
다. 기일 출석(불출석의 제재)_ 830
7. 준비서면의 작성요령··················································································· 831
Ⅴ. 증거의 조사···································································································· 842
1. 증거의 신청······························································································· 842
가. 의 의_ 842 나. 신청의 방식_ 842
다. 신청의 시기_ 843 라. 증거신청의 방식, 시기 등_ 843
마. 상대방의 진술_ 845 바. 증거신청의 철회_ 845
사. 증거의 채부결정_ 846 아. 증거조사_ 846
2. 증인신문····································································································846
가. 의 의_ 846 나. 신청절차_ 847
다. 집중심리주의의 도입에 따른 증인신문의 중요성_ 847
라. 증인능력_ 847 마. 증인신문_ 849
바. 증인조사의 방식_ 850
사. 증인신문사항 및 반대신문사항 작성요령_ 856
3. 감 정·······································································································857
가. 의 의_ 857 나. 감정의 대상_ 858
다. 감정의 신청 및 감정인의 지정_ 858 라. 감정절차_ 858
마. 감정의 종류_ 859 바. 감정시점_ 863
사. 하자감정 및 건축물 피해감정_ 864 아. 하자판정의 기준도면_ 864
자. 낙찰율의 비적용_ 865 차. 감정의 업무단계_ 865
카. 감정기일_ 878 타. 감정인 기피신청_ 881
파. 감정서 제출 및 이후의 절차_ 882 하. 건설감정의 특수성_ 884
거. 건설감정 시행 전에 정리할 기본사항_ 884 너. 감정서 제출 이후의 절차_ 885
더. 건설감정의 종류와 감정의 기본사항_ 886 러. 하자감정_ 888
4. 서 증·······································································································890
가. 의 의_ 890 나. 문서의 증거능력과 증거력_ 891
다. 서증의 신청_ 894 라. 서증의 제출_ 900
5. 검 증·······································································································901
가. 의 의_ 901 나. 검증의 대상_ 901
다. 검증의 신청 및 절차_ 901
라. 검증 시 수인의무와 수인의무 위반_ 902마. 현장검증_ 902
6. 당사자 신문······························································································· 906
가. 의 의_ 906 나. 요건 및 절차_ 906
7. 사실조회····································································································907
가. 의 의_ 907 나. 절 차_ 908
8. 증거보전····································································································912
가. 증거보전의 의의_ 912 나. 요건(증거보전의 필요성)_ 912
다. 증거보전신청의 관할_ 912 라. 증거보전의 절차_ 913
마. 증거보전의 효력_ 913
9. 그 밖의 증거조사························································································919
가. 자기디스크 등에 기억된 문자정보 등에 대한 조사_ 919
나. 음성, 영상자료 등에 대한 증거조사_ 919
Ⅵ. 변 론··········································································································· 919
1. 개 요·······································································································919
2. 변론기일 등에 대한 준비············································································· 920
가. 준비서면, 증거신청서의 사전제출_ 920 나. 소송기록의 열람 및 등사_ 920
다. 변론기일 등의 변경_ 920 라. 사실의 사전 확인_ 922
마. 의뢰인의 재정 요청, 전문심리위원의 지정신청_ 922
3. 변론준비절차······························································································923
가. 의 의_ 923 나. 변론준비절차의 내용_ 923
4. 변론기일····································································································924
가. 제1회 변론기일의 운영_ 924 나. 제2회 변론기일의 운영_ 924
다. 구두변론_ 925
제3절 소송의 종료_ 927
Ⅰ. 판결의 선고···································································································· 927
1. 판결의 종류······························································································· 927
가. 종국판결_ 927 나. 중간판결_ 929
2. 판결의 성립······························································································· 929
가. 판결내용의 확정_ 929 나. 판결원본의 작성_ 930
다. 판결의 선고_ 930 라. 판결의 송달_ 930
3. 판결의 효력······························································································· 931
가. 기 속 력_ 931 나. 형식적 확정력_ 935
다. 기 판 력_ 936 라. 형 성 력_ 938
마. 집 행 력_ 939 바. 부수적 효력_ 940
4. 외국판결의 효력························································································· 940
5. 판결의 하자······························································································· 941
가. 판결의 부존재(불성립, 비판결)_ 941 나. 무효인 판결_ 941
다. 판결의 편취_ 941
6. 종국판결의 부수적 재판－가집행선고····························································· 942
가. 의 의_ 942
나. 요건: 가집행선고 대상－재산권의 청구에 관한 판결로서 집행할 수 있는 것_ 942
다. 절차와 방식_ 943 라. 효력과 그 실효_ 945
마. 원상회복과 손해배상의무_ 945
Ⅱ. 소의 취하······································································································· 947
Ⅲ. 청구의 포기와 인낙·························································································· 948
1. 의 의·······································································································948
2. 요 건·······································································································948
가. 당사자에 관한 요건_ 948 나. 소송물에 관한 요건_ 948
다. 시기와 방식_ 948
3. 효 과·······································································································948
가. 소송종료_ 949 나. 확정판결과 동일한 효력_ 949
4. 인낙･포기조서의 작성과 송달······································································· 949
5. 인낙의 불이행으로 인한 손해배상청구 또는 해제 가부····································· 949
Ⅳ. 재판상 화해(소송상 화해)···················································································949
1. 의 의·······································································································949
가. 자백과의 차이_ 951 나. 재판상 화해와의 차이_ 951
다. 소취하와의 차이_ 951
2. 요 건·······································································································951
가. 당사자에 관한 요건_ 951 나. 소송물에 관한 요건_ 951
다. 시기와 방식_ 951
3. 효 력·······································································································952
가. 소송의 종료_ 952 나. 집 행 력_ 952
다. 형 성 력_ 953 라. 기 판 력_ 953
마. 조건적 화해 허부_ 953 바. 화해조서의 작성절차와 송달_ 953
제4절 상소심 절차_ 954
Ⅰ. 상소제도의 의의 및 종류··················································································· 954
Ⅱ. 상소의 요건···································································································· 954
Ⅲ. 항 소··········································································································· 956
1. 항소의 의의······························································································· 956
2. 항소의 요건······························································································· 956
3. 항소제기 방식···························································································· 956
4. 항소장의 기재사항······················································································ 957
5. 항소제기의 효력························································································· 958
6. 항소의 포기 및 취하··················································································· 958
가. 항소의 포기(민소 제395조)_ 958 나. 항소의 취하_ 958
7. 부대항소····································································································959
가. 의 의_ 959 나. 방식과 심판_ 959
다. 효 력_ 959
8. 불이익변경금지···························································································960
9. 항소심에서의 반소의 제기············································································ 960
10. 강제집행정지신청······················································································ 962
11. 항소의 추후보완신청(추완항소)····································································965
12. 항소심의 소송절차·····················································································967
13. 항소심 절차의 종료··················································································· 967
가. 항소심의 종국재판_ 967 나. 가지급물 반환신청_ 968
Ⅳ. 상 고··········································································································· 969
1. 의 의·······································································································969
2. 상고이유····································································································970
가. 상고이유_ 970 나. 사실오인과 상고이유_ 970
다. 상고의 제기_ 971
3. 상고이유서의 제출······················································································ 971
가. 제출기간_ 971 나. 기재사항_ 972
4. 답변서의 제출···························································································· 972
5. 부대상고····································································································972
6. 상고심절차에관한 특별법············································································· 972
가. 심리불속행제도_ 972 나. 판결의 특례_ 973
다. 특례의 제한_ 973 라. 재항고 및 특별항고에의 준용_ 974
Ⅴ. 항 고··········································································································· 981
1. 항고의 의의······························································································· 981
2. 종 류·······································································································981
가. 보통항고와 즉시항고_ 981 나. 최초의 항고와 재항고_ 982
다. 특별항고_ 982
3. 항고의 제기방식························································································· 982
4. 원재판의 집행정지······················································································ 982
5. 항고심의 심리···························································································· 983
제5절 판결의 확정 및 부수절차_ 984
Ⅰ. 판결의 확정···································································································· 984
Ⅱ. 재 심··········································································································· 984
1. 재심의 의의······························································································· 984
2. 재심의 관할법원························································································· 985
3. 재심기간····································································································985
4. 재심의 사유······························································································· 986
5. 준 재 심····································································································986
가. 의 의_ 986 나. 대 상_ 987
다. 준재심의 절차_ 987
Ⅲ. 소송비용액 확정결정························································································· 992
1. 소송비용의 부담························································································· 992
가. 소송비용의 의의_ 992 나. 소송비용의 범위_ 992
다. 소송비용_ 993 라. 소송비용의 부담_ 994
마. 소송비용의 부담의 재판_ 998 바. 소송비용액 확정절차_ 999
2. 소송비용의 담보························································································1008
가. 소송비용담보의무_ 1008 나. 담보를 제공하지 아니한 효과_ 1011
다. 담보의 취소_ 1012
｜ 부 록_ 1015
Ⅰ. 민간건설공사 표준도급계약서············································································1017
Ⅱ. 정부도급공사 표준도급계약서············································································1027
Ⅲ. 건설공사 표준하도급계약서···············································································1061
Ⅳ. 건축물의 설계표준계약서················································································· 1074
Ⅴ. 건축물의 공사감리계약서················································································· 1079
Ⅵ. 공동계약운용요령··························································································· 1085
✻ 참고문헌····································································································· 1098
✻ 판례색인····································································································· 1102
✻ 사항색인····································································································· 1111