경제학적(經濟學的) 논증(論證)의 법적(法的) 지위(地位) -배제적(排除的) 법실증주의(法實證主義)의 관점(觀點)에서-

Abstract

In 2005, the Korean Ministry of National Defense (plaintiff) filed a lawsuit

against five major domestic refineries (defendants), with the Seoul Central

District Court claiming that they suffered damages in amount to Korean Won

165,967,357,805 due to the collusive bid riggings performed by the defendants.

On January 23, 2007, the court rendered a judgment holding that the defendants

were liable for the collusive bid riggings as claimed by the plaintiff and responsible

for the damage of Korean Won 80,997,385,398. Calculating the damage

amount, the court mainly relied on the econometric method. Depending upon

Joseph Raz exclusive legal positivism, this essay explores whether Korean

legal system recognizes the economic reasoning that the court relies on in calculating

the damage amount. Main point of this essays conclusion is two-pronged.

First, the court decision to rely on econometric method in calculating damage is

valid in Korean legal system. Second, the court decision to normatively control

various aspects of expert witness damage-calculating practice is also valid even

though expert witness practice is so professional that courts seem to be unable

to handle.