[법학] 권리금 레포트
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추천 연관자료
- 하고 싶은 말
- 권리금관련 최근까지의 주요 판례들을 바탕으로 그동안 주요 논문들을 참고하여 작성하였습니다. 모든 내용을 논문들과 판례들을 자기화하여 문장화 해서 반영하였고 대부분 사견을 첨가하였습니다.
- 목차
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<목차>
I. 서언·······································································································3
II. 권리금의 개관·························································································3
1.의의····················································································································3
2.연혁·····················································································································3
3.권리금 계약의 현황································································································3
III.권리금 계약의 법적성질·············································································5
1.무명계약···············································································································5
2.법적이익···············································································································5
IV.권리금의 종류··························································································5
1.지역권리금············································································································6
2.시설권리금············································································································6
3.영업권리금············································································································6
4.임차권보장권리금···································································································7
5.허가권리금············································································································7
6.전불적권리금·········································································································7
7.복합적권리금·········································································································7
V.권리금계약의 성립요건···············································································8
1. 권리금계약의 성립································································································8
2. 권리금수수계약의 당사자·······················································································8
VI.권리금계약의 법적효과··············································································9
1.당사자의 합의와 권리금의 관계···············································································9
2.임대기간과 권리금과의 관계··················································································10
VII.권리금계약의 효력·················································································10
1.의의···················································································································11
2.원칙적으로 반환하지 않는 것················································································11
3.계약서에 명시되지 않는 것···················································································11
VIII.권리금계약의 반환관계··········································································11
1. 권리금 반환의 당사자·························································································11
2. 임대차 종료시 권리금의 반환 문제·······································································14
3. 목적물 멸실과 권리금 반환··················································································15
IX. 결어····································································································16
- 본문내용
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권리금계약은 임대차관계에서 임차보증금이나 임대료이외에 권리금이라는 명목으로 수수되는 계약으로 상가건물임대차에서 많이 쓰이고 있다. 하지만 이를 규율하는 법규가 없고 권리금 관련 분쟁은 증가하고 있음에도 판례를 통하여 그때그때 해결되고 있는 실정이다. 또한 권리금은 그 종류가 다양하고 그에 따른 효과와 요건 그리고 반환범위가 달라질 수밖에 없음에도 불구하고 판례는 이를 일괄 규정하여 모든 권리금에 있어서 반환받을 수 없음을 명백히 하고 있어 임차인에게 불리한 판결들이 판결요지 화하여 적용되고 있다는 문제점이 있어 판례를 부정하는 결론으로 서술하여 나가고자 한다.
실무를 해보지 않았다는 한계 속에서 권리금이라는 개념이 추상적으로 다가 오기에 먼저 권리금 계약의 법적성질이 무엇이 있는지 권리금계약은 임대차계약, 전대차계약 또는 임차권양도계약에 부종하는 계약으로써 어떠한 법적이익을 갖는지 그리고 종류에 따라 권리금의 효과가 달라져야 한다는 입장에서 권리금의 종류에는 어떠한 것들이 있는지를 검토해 보았다. 다음으로 이러한 권리금계약은 어떠한 방식으로 성립되는지를 살펴봄으로써 권리금 반환관계를 다룬 판례의 입장을 부정하기 위한 전제요건으로 서술하였다. 이러한 권리금의 계약에 따른 법적 효과를 당사자와 임대기간을 중심으로 알아보았고 마지막으로 권리금의 반환 관계를 통하여 판례의 일관된 판결요지의 문제점을 검토해 보았다.
- 참고문헌
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참고문헌
배병일, “상가건물 임대차의 권리금”, 한국민사법학회, 제26호, 2004. 9
김우식, “상가임대차의 권리금에 관한 연구”, 경상대석사학위논문, 2003.
박문석, “상가건물임대차에서의 권리금의 법리”, 충북대석사학위논문, 2004.
노성, “권리금계약에 관한 연구”, 전북대석사학위논문, 2005.
김형진, “부동산 임대차 권리금의 본질 및 반환에 관한 연구”, 경희대석사학위논문
김영일, “임대차에 있어서 권리금을 둘러싼 제문제”, 재판자료 제32집, 1986. 11.
선봉주, “상업용 건물의 권리금에 관한 연구”, 호남대석사학위논문, 1998.
박창범, “권리금에 관한 연구”, 연세대석사학위논문, 2002.
조성민, “조성민, 권리금의 법적성질과 반환의무“, 판례월보, 365호.
임윤수, “상가건물임차인의 권리금에 관한 연구”, 한국법학회, 2006.
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