민사소송의 법경제학 - 기초이론 -

Abstract

This survey provides an overview about the current debates of economic

analysis of law of civil procedure. Built on the efficiency perspectives, the

economic analysis of law assumes that rational individuals regard the legal

system as imposing implicit prices for their choosing certain kinds of behaviors,

and thus such ex ante incentives of individuals are determined by specific

legal rules. Civil procedure provides the most interesting examples, because there

are explicit conflicts of interests, in which the gain of one party means the loss

of the same amount of the other opposing party. Several theories have been

developed, and this paper tries to explain them in more understandable ways.

In the Chapter II, the paper start with asking why trials should occur. In

other words, what are the social costs and benefits of civil procedure system. By

identifying the social costs and benefits of suits, it should be emphasized that

the private incentive to suit is highly likely to diverge from the socially optimal

level of suits. Plaintiffs make their filing decision based on a comparison of

their private costs and benefits, but social costs and benefits are not

internalized in that calculation. In the following Chapter III, the basic model of

civil procedure ― so called differing-perception model ― is closed examined.

According to this model, litigants disagree about the likelihood of a trial

outcome based on different opinions, and the level of suits and settlements is

determined by the degree of such disagreement.

The Chapter IV deals with the most interesting topic in this area, which is

the theories of frivolous or strike suits. Such kind of suits attracts attentions,...