추가 적립 안내

[미국 법 총 정리]는 그간 어렵게 느꼈던 미국법에 대해서 알기 쉽게, 체계적으로 정리한 책이다. 미국을 상대로 무역을 하는 회사, 유학생들, 민주주의를 배우는 정치인, 미국에 거주하고 있는 교포 등 다양한 사람들에게 도움을 줄 것이다. 한국법과 미국법의 차이점부터 시작하여 가정법까지 다루고 있다.

어렵게만 생각했던 미국 법, 이 책 한권이면 충분하다.

세계화시대, 글로벌화시대에 미국을 모르면 세계를 모른다고도 할 수 있다. 미국을 상대로 무역을 하는 회사, 유학생들, 민주주의를 배우는 정치인들, 미국에 거주하고 있는 교포들이나 장차 이민을 계획하는 분들, 인터넷 모바일 상거래시대 국제법소송이 필요한분들까지 본서는 필수 교과서라고 할 수 있다.

본서는 한국법과 미국법의 차이점부터 시작하여 연방법과 주법의 체계, 법원의 소송단계, 민사소송법, 형사소송법, 민법, 상법, 부동산법, 결혼과 이혼, 상속법, 가정법까지 일반인들이 필수로 알아야 할 미국 법을 총 정리하여 광범위하게 다루고 있다. 또한 법률용어라는 점에서 중요한 용어는 영어 원문을 그대로 살려서 혼란을 피하게 하였다.

저자 Mary Lee변호사와 Joseph Kim박사는 오랜 사건수임경험과 대학에서 강의한 경험을 토대로 어렵고 까다로운 법률용어를 아주 쉽게 풀이하여 미국법이 어렵다고 생각하는 분들과 법률초보자도 이해할 수 있도록 간단하고 상세하고 쉽게 강의식으로 저술하였다.

01 한국과 미국 법체계의 주요 차이점 / 19

1. 미국의 법원 체계?연방법원과 주 법원 ··········································· 19
1) Federal Court System?연방 법원체계 ··········································· 20
2) 주 법원들(캘리포니아의 경우) ····················································· 24
2. 미국 배심원 재판 ············································································· 26
3. 민사소송 당사자의 조사 권리(Civil Discovery) ··································· 30
4. 미국의 형사 사건에서 검사의 역할 ·················································· 32
5. 미국 증거법의 특징 ·········································································· 33
1) No 유도질문 ·············································································· 33
2) 직접 아는 것이 아닌 추측, 생각(No) ··········································· 35

02 민사소송 절차법(Civil Procedure) / 37

1. Jurisdiction(관할권)의 개념 ······························································· 37
1) 연방 지방법원의 Subject Matter Jurisdiction ·································· 38
2) Personal Jurisdiction & In Rem Jurisdiction. ··································· 40
3) 연방법원의 Supplemental Jurisdiction(연방 법원이 어떤 사건을 다룰 때 그 사건과 접한 연관이 있는 주법(state law)의 내용을 함께 검토하고 결정을 내릴 수 있는 관할권) ···················44
2. 집단 소송(Class Action) ··································································· 45
1) Certification of Class(집단에 대한 인증서) ··································· 45
2) Notice(통보) ·················································································· 46
3) Jurisdiction(관할권) ········································································ 46
3. 고소장 및 답변서(Pleadings) ······························································ 47
1) 서면 요구(Demand Letter) ··························································· 47
2) 고소장(Complaint) 준비 ································································48
3) 법 선택(Choice of Law) ······························································· 50
4) 고소장 접수 ················································································· 52
5) 담당 판사탄핵(Peremptory Challenge) ············································ 52
6) 소장 전달 ···················································································· 53
7) 송달 증명서 접수 ········································································ 55
8) 피고의 대응(Defendant' Response) ·················································· 55
9) Amendment(고소장 수정) ···························································· 60
4. 재판을 위한 증거수집(Discovery) ······················································· 64
1) Written Discovery(문서로 하는 증거채집) ····································· 65
2) 구두로 하는 정외 증인 심문(Oral Deposition) ······························· 66
5. Writ of Mandamus(긴급 심의 요청) ·················································· 67
6. Summary Judgment(약식 문서재판) ··················································· 68
7. Mediation or Arbitration(합의 중재회담) ··········································· 68
8. Pre?Trial Motions(재판전의 청구신청) ·············································· 69
9. Trial(재판) ······················································································· 69
1) Court Trial(판사재판) ·································································· 69
2) Jury Trial(배심원 재판) ································································· 69
10. Judgment Notwithstanding the Verdict(평결 번복 신청) ··················· 72
11. Post Trial Motions(재판 후의 motions) ············································· 72
12. 판결이후 판결의 법리적 구속력 ··················································· 73
1) Collateral Estoppel ······································································· 73
2) Res Judicata ················································································ 73
13. Appeal Stage(항소 단계) ·································································· 74
1) Notice of Appeal(항소 의사 통보) ················································· 74
2) Document Designation(항소에서 검토할 문서 지정) ····················· 74
3) Appellant의 준비 서면 ································································75
4) Respondent의 반대 서면 ····························································· 75
5) Reply Brief ·················································································· 75
6) 청문회 및 판결을 위한 검토 ······················································ 76
7) 항소법원 판결문(Opinion) ··························································· 77
14. Full Faith and Credit······································································· 77

03 주요 민법(상법포함) / 79

A. 민사적 불법행위(Torts) ····························································· 79

1. Intentional Torts(고의적 불법행위) ···················································· 79
1) Act(행동) ···················································································· 80
2) Intent(의도) ················································································· 80
3) Causation(인과관계) ····································································· 81
4) Damages(피해) ············································································ 81
5) Defenses(방어) ··············································································· 82
2. Intentional Torts의 종류 ···································································· 82
1) Assault(협박) ··············································································· 82
2) Battery(폭행) ··············································································· 83
3) False Imprisonment(감금) ····························································· 83
4) Intentional Infliction of Emotional Distress(정신적 학대) ··············· 84
5) Trespass to Land(무단침입) ··························································· 85
6) Trespass to Chattel(물건에 대한 소유권 침해) ····························· 86
7) Conversion(도둑질) ······································································· 86
8) Defenses(방어 논리) ······································································ 87
3. Negligence(과실) ················································································ 89
1) Duty to Act or Duty of Care(행할 의무) ····································· 89
2) Affirmative Duty to Act ······························································ 94
3) Breach of Duty(의무 위반) ·························································· 96
4) Causation(인과관계) ····································································· 99
5) Damages ····················································································· 102
6) Defenses(방어논리) ····································································· 103
4. Nuisance(공해) ················································································· 104
1) Private Nuisance(개인적인 공해) ·················································· 104
2) Public Nuisance(대중 공해) ························································ 105
3) Remedies ····················································································· 105
4) Defenses(방어논리) ······································································ 106
5. Defamation(명예훼손) ······································································· 107
1) Libel(문서에 의한 명예 훼손) ····················································· 108
2) Public Figure vs Private Person(공인과 개인) ······························ 110
3) Defenses(명예 훼손의 방어논리) ················································ 113
4) Libel Per Se ··············································································· 115
5) Slander ······················································································ 115
6. Invasion of Privacy(사생활 침해) ······················································ 116
1) Commercial Appropriation(초상권 침해) ······································· 116
2) Intrusion(침해) ··········································································· 117
3) False Light(허위묘사) ·································································· 117
4) Disclosure of Embarrassing Facts(공개될 수 없는 혹은 공개하기 싫은 사적 사항의 불법공개) ·· 117
5) Proximate Causation ····································································· 118
6) Damages(피해) ··········································································· 118
7) Defenses(방어) ············································································· 118
8) Action Does Not Survive Death (죽은 사람을 대신 하는 소송 못함) ····················· 118
7. Fraud(사기) ······················································································ 119
1) Intentional Fraud(의도적인 사기) ··············································· 119
2) Negligent Misrepresentation(과실에 의한 사기) ····························· 120
8. Vicarious Liability(대리책임) ····························································· 120
1) Employer & Employee Relationship(종업원과 주인의 관계) ········· 120
2) 고용주의 다른 과실 ·································································· 121
3) Agent's Liability ········································································· 121
4) Partner's Liability(동업자 책임) ··················································· 121
5) Automobile Owner's Liability(자동차 소유주 대리 책임) ··············· 122
6) Multiple Defendants(피고가 여럿일 때) ········································ 122
7) Satisfaction(책임 완수) ································································· 122
8) Contribution(피고끼리 서로 분담) ··············································· 123
9) Indemnity(구상권) ······································································ 123
10) Immunities(면책) ······································································ 123
9. Products Liability(생산 업자의 잘못) ················································ 124
1) Strict Product Liability(무과실생산 책임) ····································· 124
2) Negligence Action(생산자 과실 고소) ········································· 127
10. Warranty(보증) ·············································································· 129
11. Strict Liability(무과실 책임) ···························································· 130
1) Ultrahazardous Activity(근본적으로 위험한 행위) ······················· 130
2) Wild Animals(야생동물) ······························································ 132

B. 계약법(Contract) ········································································ 133
1. Contract involving Sales of Goods (상인들 간의 물건 구매 계약) ··· 133
1) Governing Law?Article II of UCC(적용되는 법) ························ 134
2) Formation of Contract(계약 체결) ··············································· 134
3) Breach(계약위반) ······································································· 140
4) Remedies(보상) ·········································································· 140
2. General Contract(일반 계약) ····························································· 143
1) 계약 전 흥정 ············································································· 143
2) Statute of Fraud(문서로 되지 않은 계약은 무효라는 법) ··········· 144
3) Valid Offer(제안) ······································································· 147
4) Valid Acceptance(유효한 수락) ····················································· 153
5) Consideration(주고받는 대가) ····················································· 155
6) Assignment of Right and Delegation of Duty(권리와 의무의 양도) 157
7) Breach(계약 위반) ····································································· 158
8) Damages(손해) ············································································ 159
9) Defenses(방어) ··········································································· 159
3. Third Party Beneficiary(제 3의 계약 수혜자) ·································· 161
1) Intended Beneficiary(제 3자를 수혜자로 지정한 경우) ················· 161
2) Incidental Beneficiary(지정된 수혜자가 아닌 부수적 계약 수혜자) 163
4. Remedy(보상) ··················································································· 163
1) Specific Performance(계약 이행 명령) ··········································· 164
2) Damages(금전적 배상) ································································164
3) Injunctive Relief(금지명령) ··························································· 164
5. Beach of Warranty(보증위반) ························································· 165
1) Implied Warranty ······································································ 166
2) Express Warranty ······································································· 166

C. 부동산 법(Real Property) ··························································· 167

1. Acquisition by Conveyance(매매를 통한 부동산의 취득과 양도) ······· 168
1) General Warranty Deed ······························································· 168
2) Quit Claim Deed ········································································· 169
3) Valid Transaction ······································································· 170
2. Acquisition by Adverse Possession (남의 땅을 주인 허락 없이 취득하는 방법) ···································· 172
3. Eminent Domain by Government (정부에 의한 강제 점유) ·············· 175
4. Acquisition By Inheritance(상속에 의한 취득) ··································· 175
1) Present Possessory Interest(현재 소유 권한) ································ 175
2) Future Interest(미래의 권한) ······················································ 182
3) Restraint on Alienation(양도의 제약) ············································ 188
4) The Type of Restraint(제약의 종류) ············································· 189
5. Concurrent Ownership(공동 소유권) ················································· 190
1) Joint Tenacy ·············································································· 191
2) Tenacy in Common ···································································· 193
3) Tenacy By the Entirety································································194
6. Mortgages(부동산에 대한 채무 담보) ··············································· 195
1) Trustee Sale(신속한 강매방법) ····················································· 195
2) Judicial Foreclosure(소송을 통한 경매 판결집행) ·························· 197
3) 융자금 있는 부동산의 양도 ······················································· 198
4) Redemption After Foreclosure ····················································· 199
7. Rights of Possessor(땅 소유주의 권리)? Lateral Support (땅을보호받는것) ···················· 199
8. Landlord and Tenant(임대인과 임차인) ············································ 201
1) 임차의 종류 ············································································· 201
2) 계약 밖에서 이루어지는 임차의 종료 ········································ 202
3) Landlord's Duty(주인의 의무) ····················································· 203
4) Tenant's Duty(세입자의 의무) ····················································· 206
5) Assignments and Sublease ··························································· 210
6) Condemnation of Leaseholds ······················································· 212
9. Non?Possessory Interest(무소유 권리) ·············································· 213
1) Easement(사용권) ········································································ 213
2) Creation of a Valid Easement······················································· 215
3) Termination of Easement(사용권 해제) ········································· 216
4) License(이용권) ·········································································· 217
5) Profits(채취권) ··········································································· 218

D. 회사법(Corporation) ··································································· 219

1. Corporation의 탄생 ·········································································· 219
2. 회사 설립 관련 계약 ······································································ 221
1) Pre?Incorporation Contract ·························································· 221
2) Post?Incorporation Subscription ··················································· 223
3) De Facto Corporation(실질적 회사 법인체) ································ 223
4) De Jure Corporation ··································································· 224
5) Piercing the Corporate Veil(법인체 보호막이 무너짐) ··················· 224
3. Issuance of Stock(주식 발행) ···························································· 226
4. 회사 운영 ······················································································· 227
1) Liability of Controlling Shareholder(대주주의 책임) ····················· 227
2) 주주들의 회사운영 ··································································· 228
3) 이사회(Board of Directors) ························································· 230
4) 이사의 의무 ··············································································· 231
5) 이사의 충성의무(Duty of Loyalty) ············································· 231
6) 이사의 책임 ··············································································· 232
7) Officers(회사 경영진) ································································· 232
5. 회사 관련 소송 ············································································· 234
1) SEC 16?b Action ····································································· 234
2) 10b?5 Action ··········································································· 235
3) Derivative Action ······································································· 236
6. 배당금 ···························································································· 237
7. 회사 변경 ······················································································· 237
8. 법인체 해산 ···················································································· 238

E. 가정법(Family Law) ···································································· 239

1. 결혼 ······························································································ 239
2. Annulment(무효) ·············································································· 240
1) Grounds for Annulment(무효 사유) ············································ 240
2) Defenses(방어) ··········································································· 241
3) 결혼 무효신청의 자격 ······························································ 242
4) 결혼 무효판결의 관할권 ···························································· 242
3. 이혼 ································································································ 242
1) 이혼 방법 ················································································· 243
2) 재산권에 대한 관할권 ································································243
3) 한 주에서 내려진 재산권 판결?완전한 인정 ···························· 244
4) 위자료 변경신청 ········································································ 244
5) 아이 양육권 ··············································································· 244
4. 부부재산 분할 방식 ········································································ 245
1) Community Property(부부 공동재산) ·········································· 245
2) Quasi?Community Property ······················································· 246
3) Transmutation(양도) ··································································· 246
4) Separate Property(배우자 한쪽의 개인재산) ································· 246
5) Commingling(섞는 것) ······························································· 246
6) Personal Injury Settlement(상해보상합의금) ·································· 246
7) Disability Benefit(불구수당) ························································ 247
8) Retirement Benefit(은퇴연금) ······················································ 247
9) Distribution Options(분배) ··························································· 248
10) Education(결혼 중 받은 교육) ··················································· 248
11) Joint Title Presumption······························································ 248
12) 올라간 재산 가치 분할 방법 ·················································· 249

F. 유언 및 신탁 법(Wills & Trust)················································ 250

1. 유언장 ···························································································· 250
1) 유언장 작성자의 능력과 자유로운 의사 ····································· 250
2) Statutory Will ············································································ 251
3) 사기 유인(Fraudulent Inducement) ·············································· 25
1 4) Anti?Lapse Statute ··································································· 251
5) Omitted Child(유언장에 실수로 빠진 아이) ································ 252
6) Advancement(가불) ······································································ 252
7) 실수로 무효화된 유언장 ··························································· 252
8) Holographic Will(수기로 작성한 유언장) ··································· 253
9) Incorporation by Reference ·························································· 253
10) Acts of Independent Significance ··············································· 253
11) Pour Over Trust ······································································ 254
12) Revocation of Valid Will ···························································· 254
13) Semi?Secret Trust ····································································· 254
14) Intestacy ·················································································· 255
2. 신탁법(Trust) ··················································································· 255
1) Creation of Trust········································································· 255
2) Trustee's Duty ··········································································· 256
3. Termination of Trust ······································································ 257
4. Charitable Trust(자선단체) ······························································· 258
1) 설립 ··························································································· 258
2) 해체 ··························································································· 259

04 형사법 / 261

1. Classification of Crimes(범죄의 종류) ················································ 261
1) Felonies(중범 죄) ······································································· 261
2) Misdemeanors(경범죄) ································································262
3) Malum Prohibitum and Malum on Se Crime(Statutory Crimes) ····· 262
4) Infamous Crimes ·········································································· 262
2. 형법에서의 원고와 피고 ································································· 262
3. Causes of Action in Criminal Cases (형사법 고소사유) ······················ 263
1) General Intent Crime ································································· 264
2) Specific Intent Crimes(의도적인 범죄) ·········································· 267
3) Statutory Crimes(Strict Liability Crimes) ········································ 287
4) Miscellaneous Issues ····································································· 290

05 형사 절차법(Criminal Procedure) / 293

1. Vehicle Code Violation(자동차 법규 위반) ······································ 293
1) Stop(Reasonable Suspicion?) ··························································· 294
2) Arrest Without Warrant(영장 없는 체포) ···································· 296
3) Search Incident To Lawful Arrest(체포에 수반된 수색) ················· 296
2. Investigation ····················································································· 297
1) Reasonable Expectation of Privacy(합리적인 사생활 기대치) ········· 297
2)“Shock the Conscience”(Rochine v. California 342 U.S. 165(1952)) ··· 299
3) Stop & Frisk(검문검색) ······························································ 300
4) Search(수색) ················································································ 300
5) Seizure of a Person's Conversation ··············································· 301
6) Plain View Doctrine(육안) ·························································· 305
7) Public Safety Exception································································306
8) Pre?Arrest Investigation ···························································· 306
9) Post?Arrest Delays ··································································· 307
3. Arrest(체포) ··················································································· 309
1) 공공장소에서의 체포 ································································309
2) 피고 집에서 체포 ······································································· 310
3) 남의 집에서의 체포 ·································································· 310
4) 체포 시 행하는 수색(Search Incident to Lawful Arrest) ·············· 310
5) 영장의 발행 ············································································· 311
6) Challenging Warrant ·································································· 312
7) 증거 삭제 법칙(Exclusionary Rule) ············································· 313
8) 민간인 예외 ··············································································· 315
9) 행정적 수색(Administrative Search) 예외 ······································ 315
4. Statements & Confession(말과 자백) ················································· 315
1) Involuntary Statement(강압적 자백) ············································ 316
2) 14th Amendment(수정 헌법 14항) ·············································· 316
3) Miranda Warnings ····································································· 317
4) Massiah Warning ······································································· 318
5. Identification ·················································································· 319
1) Pre Indictment Identification ························································ 319
2) Post?Indictment Identification ··················································· 320
3) In Court Identification(Gilbert v. California 388 U.S. 263(1967)) ··· 321
6. Pre Trial Procedure(재판 전 절차) ···················································· 321
1) Booking ····················································································· 322
2) 인정심문(Arraignment) ································································322
3) Preliminary Hearing ··································································· 324
4) Grand Jury Hearing ··································································· 324
5) Pretrial Motions ··········································································· 326
7. Trial ······························································································ 326
1) 공개 재판 권한 ·········································································· 327
2) 배심원의 언론노출 금지 ···························································· 327
3) Ineffective Counsel ····································································· 328
4) Right to Jury Trial ···································································· 328
5) 자신에게 불리한 증언을 하는 증인을 대면 할 권리 ················ 328
6) 배심원 평결지침서(Jury Instruction) ············································ 329
7) 평결 불일치(Mistrial) ··································································· 330
8. 재판 후 절차(Post Trial Procedure) ·················································· 330
1) Ineffective Counsel ····································································· 330
2) Cruel and Unusual Punishment ··················································· 331
9. Appeal ····························································································· 331
1) Appeal as a Matter of Right ······················································ 331
2) Habeas Corpus ··········································································· 332

06 연방 헌법(U.S. Constitution) / 333

1. Original Constitution ········································································ 333
2. 수정헌법 ······················································································· 334
1) First Amendment ······································································· 334
2) 수정헌법 4항 ············································································ 343
3) 수정조항 5항 ············································································ 343
4) 수정조항 6항 ············································································ 344
5) 수정조항 8항 ············································································ 344
6) 수정조항 14항 ·········································································· 345
7) 수정조항 13항 ·········································································· 345
8) 수정조항 10항(10th Amendment?Power of States) ······················ 346
3. Equal Protection Clause(차별금지법) ················································· 350
1) 표면상으로도 무효인 법(Void On Its Face)································· 350
2) Discrimination on its Face(void on its face와 구별) ····················· 350
4. Substantive Due Process(내용적 적법 절차) ······································ 353
5. Procedural Due Process(절차적 적법절차) ········································· 354
6. Article 6 Supremacy Clause(연방법 상위 조항) ································· 354
1) State Must Follow Federal Law. ··················································· 354
2) 모든 법의 어머니 (U.S. Constitution takes precedence over other Federal Laws, Treaties, and State Laws) ··········································· 354
7. Scope of Federal Power ··································································· 354
1) Legislative Power(Article 1 의회의 권한) ···································· 355
2) President's Executive Power(대통령 권한?Article II) ····················· 358
3) Judicial Power(Article III 사법부의 권리) ··································· 361
4) Special Standing Rules(특별자격 법) ············································· 363
5) Full Faith and Credit Clause(다른 주의 판결을 존중하는 조항) ··· 365
6) Bill of Attainder ········································································ 365
7) “Ex Post Facto”법 ····································································· 365

07 증거법(Evidence) / 367

1. 증인(Witness) ·················································································· 367
2. 증언 ································································································ 369
1) Foundational Question(기초 질문) ················································ 369
2) Relevancy(사건에 대한 관련성) ···················································· 369
3) Hearsay ······················································································· 371
4) Admission(상대방이 한 말?인정) ·············································· 376
5) Non Assertive Conduct ······························································· 379
6) Lay Opinion Testimony(보통 사람의 증언) ································· 380
7) Former Testimony(과거에 했던 법정 증언) ································ 380
8) Expert Testimony(전문가 증언) ·················································· 380
9) 비이 유지되는 대화 ······························································ 381
10) Cross Examination(반대심문) ······················································ 382
11) Character Evidence(증인의 인격 증거) ········································ 383
12) Impeachment(증인의 신뢰도 공격) ··········································· 383
13) Rehabilitation(실추된 신용 회복) ·············································· 385
14) Evidence in Rape Case(강간사건) ·············································· 385
15) Habit(습관 증거) ····································································· 386
3. Document(문서증거) ········································································ 386
1) Self?Authentication ··································································· 387
2) Best Evidence Rule ···································································· 387
3) Judicial Notice ··········································································· 387
4. Policy Exclusion ·············································································· 388
5. Objections(질문에 대한 이의 신청) ·················································· 389