民事訴訟의 法經濟學 ― 基礎理論 ―

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, because the expected payoff of plaintiff from filing a suit is negative. It is quite understandable if the defendant is assumed to be ignorant of the frivolous nature of the suit. Recent theoris, however, have argued that, even if the defendant knows what the plaintiff knows, the suits are likely to end up with settlement. This paper summarizes the result of previous researches, such as Hylton (1990), Rosenberg & Shavell (1985), and Bebchuk (1996). The Chapter V briefly examines the procedural aspects of the rules; rules on revelation of information and appeal system, and finally the Chapter VI summarizes the current debates on the effect of different rules allocating litigation costs between plaintiffs and defendants.