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법(法)의 해석(解釋)과 적용(適用)에서 경제적(經濟的) 효율(效率)의 고려(考慮)는 가능한가? : Should Economic Efficiency be Considered in the Interpretation and the Application of Law?
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- Authors
- Issue Date
- 2009
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.50 No.1, pp. 39-81
- Keywords
- 법의 해석과 적용 ; 배분적 효율 ; 생산적 효율 ; 거래비용의 감소 ; 신뢰보호의 원칙 ; 비례의 원칙 ; The Interpretation and the Application of Law ; Allocative Efficiency ; Productive Efficiency ; Reduction of Transaction Cost ; The Principle of the Protection of Reliance ; the Principle of Proportionalit
- Abstract
- This paper deals with the problem of whether economic efficiency should be a
factor to be considered in the interpretation and the application of law. In this
context, looking to the controversy in Germany may be helpful. According to
Eindenmüller, even though economic efficiency can play a role in the process of
legislation, judges should not consider economic efficiency in general. On the
other hand, Janson asserts that economic efficiency has relevancy not only to
legislation, but to the interpretation and the application of law.
I argue that economic efficiency can be included among the factors in the
interpretation and the application of law. The private autonomy and the guarantee
of private property are acknowledged to accomplish economic efficiency. The
precedents on the interpretation of the contract and mistake can be analysed in
terms of efficiency. The general clause of good faith and the doctrine of the
abuse of right can be understood as efforts to reduce transaction costs.
In the area of the constitutional law, the principle of the protection of reliance
contributes to legal certainty, thereby enhancing efficiency. The principle of
proportionality is another example of the economic way of thinking.
- ISSN
- 1598-222X
- Language
- Korean
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