경제학적 논증의 법적 지위

Abstract

In 2005, the Korean Ministry of National Defense (“plaintiff”) filed a lawsuit against five major domestic refineries (“defendants”), with the Seoul Central District Court claiming that they suffered damages in amount to Korean Won 165,967,357,805 due to the collusive bid riggings performed by the defendants. On January 23, 2007, the court rendered a judgment holding that the defendants were liable for the collusive bid riggings as claimed by the plaintiff and respon- sible for the damage of Korean Won 80,997,385,398. Calculating the damage amount, the court mainly relied on the econometric method. Depending upon Joseph Raz’ “exclusive legal positivism,” this essay explores whether Korean legal system recognizes the economic reasoning that the court relies on in calcul- ating the damage amount. Main point of this essay’s conclusion is two-pronged. First, the court decision to rely on econometric method in calculating damage is valid in Korean legal system. Second, the court decision to normatively control various aspects of expert witness’ damage-calculating practice is also valid even though expert witness’ practice is so professional that courts seem to be unable to handle.