S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 48, Number 1/4 (2007)
법(法)의 경제적(經濟的) 분석(分析)에 관한 몇 가지 오해(誤解)에 관한 고찰(考察)
A Study on Several Misunderstandings of Economic Analysis of Law
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.48 No.4, pp. 179-205
- 법경제학 ; 효율성 ; 법의 경제적 분석에 관한 오해 ; 형평성 ; Law and economics ; efficiency ; rationality ; justice
- It has been quite long since the academic trend of economic analysis of law
was introduced into Korea, and quite many scholars are interested in that field
nowadays. However, the outcome is not so satisfactory yet. More and more
cases come to courts recently which need economic analysis, but, in Korean
courts, most of them are settled without economic analysis. There can be found
many reasons of this state of things. In my thought, one of those reasons stems
from several misunderstandings of economic analysis of law.
Followings are those several misunderstandings.
(1) The Law and the Economics do not share the academic research subjects,
so the two academics cannot be combined.
(2) The economic analysis of law does not consider the value of justice and
human rights which are the main objects in legal research.
(3) Economic analysis evaluates every value in our society in terms of monetary
value, so it is not appropriate to be taken as legal analytic tool.
(4) The economic analysis of law does not fully consider the value of equity
(5) The economic analysis of law can be done only through unintelligible
mathematics and diagrams.
(6) The economic analysis of law can be applied only in the field of private
law, not in the field of public law.
(7) The economic analysis of law uses many strict and impractical assumptions,
so its applicability to real legal problem is severely restricted.