민사소송의 법경제학 - 기초이론 -
Economic Analysis of Civil Procedure -A Survey-

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서울대학교 법학연구소
법학, Vol.46 No2 pp.136-168
법경제학의 정체성효율성을 극대화민사법 질서소송제도의 사회적 비용
This survey provides an overview about the current debates of economic
analysis of law of civil procedure. Built on the efficiency perspectives, the
economic analysis of law assumes that rational individuals regard the legal
system as imposing implicit prices for their choosing certain kinds of behaviors,
and thus such “ex ante” incentives of individuals are determined by specific
legal rules. Civil procedure provides the most interesting examples, because there
are explicit conflicts of interests, in which the gain of one party means the loss
of the same amount of the other opposing party. Several theories have been
developed, and this paper tries to explain them in more understandable ways.
In the Chapter II, the paper start with asking why trials “should” occur. In
other words, what are the social costs and benefits of civil procedure system. By
identifying the social costs and benefits of suits, it should be emphasized that
the private incentive to suit is highly likely to diverge from the socially optimal
level of suits. Plaintiffs make their filing decision based on a comparison of
their private costs and benefits, but “social” costs and benefits are not
internalized in that calculation. In the following Chapter III, the basic model of
civil procedure ― so called “differing-perception” model ― is closed examined.
According to this model, litigants disagree about the likelihood of a trial
outcome based on different opinions, and the level of suits and settlements is
determined by the degree of such disagreement.
The Chapter IV deals with the most interesting topic in this area, which is
the theories of “frivolous” or “strike” suits. Such kind of suits attracts attentions,...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 46, Number 1/4 (2005)
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