법(法)의 경제적(經濟的) 분석(分析)에 관한 몇 가지 오해(誤解)에 관한 고찰(考察)

Abstract

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

in law.

(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.