법의 경제적 분석에 관한 몇 가지 오해에 관한 고찰

Abstract

It has been quite long since the academic trend of economic analysis of law was introduced into Korea, and quite many scholars are interested in that field nowadays. However, the outcome is not so satisfactory yet. More and more cases come to courts recently which need economic analysis, but, in Korean courts, most of them are settled without economic analysis. There can be found many reasons of this state of things. In my thought, one of those reasons stems from several misunderstandings of economic analysis of law. Followings are those several misunderstandings. (1) The Law and the Economics do not share the academic research subjects, so the two academics cannot be combined. (2) The economic analysis of law does not consider the value of ‘justice’ and ‘human rights’ which are the main objects in legal research. (3) Economic analysis evaluates every value in our society in terms of mone- tary value, so it is not appropriate to be taken as legal analytic tool. (4) The economic analysis of law does not fully consider the value of equity in law. (5) The economic analysis of law can be done only through unintelligible mathematics and diagrams. (6) The economic analysis of law can be applied only in the field of private law, not in the field of public law. (7) The economic analysis of law uses many strict and impractical assump- tions, so its applicability to real legal problem is severely restricted. (8) The rational choice theory in economics cannot fully explain the real persons’ acts in reality. In this paper, I reviewed the contents of those misunderstandings and explained the groundlessness of such understandings. I hope that this paper can be a small step in the road to active movement of interdisciplinary academic research in law and economics in Korea.