법(法)의 해석(解釋)과 적용(適用)에서 경제적(經濟的) 효율(效率)의 고려(考慮)는 가능한가?

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.