제 1 장 서 론 | 1제 1 절 현대사회와 회사 ·····························································································3제 2 절 기업조직의 형태와 회사 ···············································································41. 개인기업의 한계 52. 공동기업의 법적 형태 5제 3 절 회사법의 성격 ·································································································6Ⅰ. 회사법의 의의 ····························································································6Ⅱ. 회사법의 특색 ····························································································71. 단체법적 성질 72. 거래법적 성질 8제 4 절 회사법의 법원 ·································································································8Ⅰ. 종 류 ·····································································································8Ⅱ. 법원적용의 순서 ·······················································································10Ⅲ. 상장회사 특례규정의 지위 ······································································101. 의 의 102. 우선적용의 의미 113. 소수주주권에 관한 특례의 성격 13제 5 절 회사법의 역사 ·······························································································14Ⅰ. 회사제도의 발달 ·······················································································141. 공동기업의 기원 142. 가족적 영속기업의 등장 143. 주식회사의 생성 154. 자본단체의 폐단과 반성 16Ⅱ. 각국 회사법의 현황 ·················································································161. 독일법계 162. 프랑스법계 173. 영미법계 184. 유럽회사와 EU 가맹국의 회사법개정 20Ⅲ. 우리나라 회사법의 형성과 발전 ·····························································241. 근대상법의 계수 242. 상법의 제정 253. 상법(회사편)의 개정 25제 6 절 회사법의 기본과제 ·······················································································35제 2 장 통 칙 | 39제 1 절 회사의 개념 ····································································································41Ⅰ. 사 단 성 ····································································································421. 재단과의 비교 422. 조합과의 비교 43Ⅱ. 법 인 성 ····································································································44Ⅲ. 영 리 성 ····································································································45제 2 절 회사개념의 현대적 수정 ·············································································46Ⅰ. 1인회사 ·····································································································461. 사단성의 입법적 수정 462. 1인회사의 법률관계 47Ⅱ. 법인격부인론 ····························································································481. 유한책임의 남용과 규제 482. 법인격부인론의 법리적 근거 523. 적용요건 534. 적용범위 565. 법인격부인론의 확장(판례의 경향) 596. 부인효과 60Ⅲ. 현대회사의 사회성(기업의 사회적 책임론) ···········································641. 의 의 642. 사회적 책임론의 발전 673. 우리나라의 동향 694. 사회적 책임론에 대한 비판 69제 3 절 회사의 능력 ····································································································74Ⅰ. 권리능력 ···································································································741. 성질에 의한 제한 742. 법령에 의한 제한 753. 목적에 의한 제한 76Ⅱ. 의사능력과 행위능력 ···············································································81Ⅲ. 불법행위능력 ····························································································81제 4 절 회사의 종류 ····································································································82Ⅰ. 인적회사와 물적회사 ···············································································82Ⅱ. 상법전상의 분류 ·······················································································831. 분류의 기준(사원의 책임) 832. 회사별 특색 853. 이용실태 88Ⅲ. 법원상의 분류 ··························································································89Ⅳ. 민사회사·상사회사 ·················································································89Ⅴ. 내국회사·외국회사·합작회사 ······························································90Ⅵ. 공개회사·폐쇄회사 ·················································································90Ⅶ. 상장법인·비상장법인 ·············································································91Ⅷ. 소규모회사 ································································································92제 5 절 회사설립의 일반론 ·······················································································93Ⅰ. 설립에 관한 입법주의 ··············································································93Ⅱ. 설립행위의 개념과 성질 ··········································································941. 학 설 952. 비 판 95Ⅲ. 정관의 성질과 효력 ·················································································981. 정관의 의의와 성질 982. 정관의 효력 993. 정관의 작성 100Ⅳ. 회사법상의 등기 ·····················································································1001. 등기제도의 의의 1002. 등기의 효력 1013. 미등기의 효력 101제 6 절 회사법상의 소 ·····························································································102Ⅰ. 의 의 ·································································································102Ⅱ. 회사법상의 소의 종류 ············································································1021. 모든 회사에 공통되는 소송 1022. 인적회사에 특유한 소송 1033. 물적회사에 특유한 소송 103Ⅲ. 소의 특색 ································································································1051. 소의 성질 1052. 제소권자의 제한 1053. 소 절 차 1064. 재량기각 1075. 원고패소판결의 효력 1096. 원고승소판결의 효력 110Ⅳ. 회사소송에서의 가처분 ·········································································1111. 의 의 1112. 보전의 필요성 1113. 회사가처분의 특성과 한계 1144. 가처분결정의 회사에 대한 효력 116제 7 절 합 병 ·······································································································118Ⅰ. 의 의 ·································································································1181. 합병의 법체계 1182. 개념과 종류 1183. 경제적 의의 119Ⅱ. 합병의 본질론 ························································································120Ⅲ. 합병과 합병계약 ·····················································································1211. 학 설 1222. 사 2 견 122Ⅳ. 합병의 제한 ····························································································124Ⅴ. 합병의 절차 ····························································································126Ⅵ. 합병의 효과 ····························································································128Ⅶ. 합병무효의 소 ························································································129제 8 절 조직변경 ·······································································································131Ⅰ. 의 의 ·································································································131Ⅱ. 조직변경의 유형 ·····················································································132Ⅲ. 각 회사의 조직변경 ···············································································133Ⅳ. 조직변경의 효력발생 ·············································································135Ⅴ. 조직변경의 무효 ·····················································································135제 9 절 해산명령과 해산판결 ·················································································136Ⅰ. 해산명령 ·································································································1361. 의 의 1362. 사 유 1363. 절 차 1384. 효 과 139Ⅱ. 해산판결 ·································································································1391. 의 의 1392. 청구사유 1403. 청구권자 1414. 절 차 141제10절 회사의 계속 ··································································································142Ⅰ. 의 의 ·································································································142Ⅱ. 계속이 가능한 해산사유 ········································································1421. 합명회사 1422. 합자회사 1433. 유한책임회사 1434. 주식회사 1435. 유한회사 144Ⅲ. 회사계속의 가능시기 ·············································································144Ⅳ. 계속등기 ·································································································144Ⅴ. 계속의 효과 ····························································································145제 3 장 합명회사 | 147제 1 절 총 설 ·······································································································149Ⅰ. 연 혁 ·································································································149Ⅱ. 특 색 ·································································································150Ⅲ. 법률관계의 구조 ·····················································································150제 2 절 회사의 설립 ··································································································151Ⅰ. 설립상의 특색 ························································································151Ⅱ. 설립절차 ·································································································1521. 정관작성 1522. 설립등기 153Ⅲ. 설립의 취소와 무효 ···············································································1531. 설립의 취소 1532. 설립의 무효 1543. 채권자에 의한 설립취소의 소 155제 3 절 내부관계 ·······································································································155Ⅰ. 법률관계의 성격과 법규범 ····································································155Ⅱ. 출 자 ·································································································156Ⅲ. 업무집행 ·································································································157Ⅳ. 의사결정 ·································································································160Ⅴ. 회사와 사원의 이익충돌방지 ································································161Ⅵ. 손익분배 ·································································································162Ⅶ. 정관의 변경 ····························································································163Ⅷ. 지분 및 사원의 변동 ··············································································1641. 개 설 1642. 입 6 사 1643. 지분의 양도 1654. 지분의 상속 1665. 퇴 사 1666. 지분의 압류와 입질 171제 4 절 외부관계 ·······································································································172Ⅰ. 회사의 대표 ····························································································172Ⅱ. 사원의 책임 ····························································································174제 5 절 해산과 청산 ··································································································177Ⅰ. 해 산 ·································································································177Ⅱ. 청 산 ·································································································1771. 의 의 1772. 임의청산 1783. 법정청산 179제 4 장 합자회사 | 183제 1 절 총 설 ·······································································································185Ⅰ. 연 혁 ·································································································185Ⅱ. 특 색 ·································································································186제 2 절 회사의 설립 ··································································································186제 3 절 내부관계 ·······································································································187Ⅰ. 출 자 ·································································································187Ⅱ. 업무집행·감시 ·······················································································187Ⅲ. 경업·자기거래의 제한 ··········································································189Ⅳ. 손익의 분배 ····························································································189Ⅴ. 지분의 양도, 사원의 변동 ·····································································189제 4 절 외부관계 ·······································································································1911. 회사의 대표 1912. 유한책임사원의 책임 1923. 책임의 변경 193제 5 절 회사의 해산 및 계속 ··················································································193제 6 절 회사의 청산 ··································································································194제 5 장 유한책임회사 | 195제 1 절 총 설 ·······································································································197Ⅰ. 의 의 ································································································197Ⅱ. 법률관계의 구조와 특색 ······································································198제 2 절 회사의 설립 ··································································································199Ⅰ. 설립상의 특색 ·······················································································199Ⅱ. 설립절차 ································································································199Ⅲ. 설립의 취소·무효 ················································································200제 3 절 내부관계 ·······································································································201Ⅰ. 내부관계의 특색 ···················································································201Ⅱ. 업무집행 ································································································2011. 유한책임회사의 업무집행 방법론 2012. 업무집행자의 선임 2023. 사원운영회사의 가능성 2034. 수인의 업무집행방법 2035. 법인인 업무집행자 2036. 직무대행자 2047. 업무집행자의 권한상실선고 2048. 회사와 업무집행자의 이익충돌방지 2049. 사원의 감시권 20510. 업무집행자의 책임 205Ⅲ. 의사결정 ·································································································2051. 결정방법 2052. 의결권의 배분 2063. 의사결정기구 206Ⅳ. 정관변경 ································································································207Ⅴ. 회 계 ································································································2071. 자 본 금 2072. 재무제표의 작성과 보존 2083. 잉여금의 분배 208Ⅵ. 사원 및 지분의 변동 ·············································································2091. 입 사 2092. 지분의 양도 2093. 자기지분의 취득금지 2104. 퇴 1사 2105. 지분의 상속 212제 4 절 외부관계 ·······································································································212Ⅰ. 회사의 대표 ···························································································212Ⅱ. 사원의 책임 ···························································································213제 5 절 해산과 청산 ··································································································213제 6 장 주식회사 | 215제 1 절 주식회사의 의의와 본질 ···········································································217Ⅰ. 자 본 금 ··································································································2181. 의 의 2182. 자본금의 3원칙 218Ⅱ. 주 식 ·································································································220Ⅲ. 주주의 유한책임 ·····················································································2211. 의 의 2212. 기 능 2223. 정당성의 근거 223제 2 절 설 립 ·······································································································224제 1 관 총 설 ·································································································224Ⅰ. 설립절차의 특색 ·····················································································224Ⅱ. 설립절차의 개관 ·····················································································225Ⅲ. 발 기 인 ··································································································2271. 의 의 2272. 발기인의 자격과 수 2283. 발기인조합 2284. 발기인의 의사결정방법 229Ⅳ. 설립중의 회사 ························································································2291. 의 의 2292. 성 질 2303. 성립시기 2314. 설립중의 회사의 법률관계 233제 2 관 정관의 작성 ···························································································235Ⅰ. 절대적 기재사항과 수권자본제 ····························································2361. 절대적 기재사항 2362. 수권자본제 241Ⅱ. 상대적 기재사항 ·····················································································2421. 변태설립사항 2422. 기타의 상대적 기재사항 248Ⅲ. 정관의 효력발생 ·····················································································248제 3 관 자본금과 기관의 구성 ··········································································249Ⅰ. 주식발행사항의 결정 ·············································································249Ⅱ. 발기설립 ·································································································2501. 발기인의 주식인수 2502. 출자의 이행 2513. 임원의 선임 2514. 설립경과의 조사 2525. 변태설립사항의 조사 2526. 대표이사의 선임 255Ⅲ. 모집설립 ·································································································2551. 발기인의 주식인수 2552. 주주의 모집 2553. 주식의 인수 2564. 출자의 이행 2595. 창립총회 2606. 대표이사의 선임 262제 4 관 설립등기 ·································································································262Ⅰ. 의 의 ·································································································262Ⅱ. 등기시