민사적 구제수단(私的執行)의 행정·형사적 구제수단(公的執行)에 대한 비교우위

Abstract

A right can be defined as a legally protected interest. What kinds of protection shall be given to the right? Lawyers reply to the question that it is a remedy. Law and economists reply to the question indicating two rules, that are property rule and liability rule. Property rule is considered as basic protection to the right. To the very exceptional cases, liability rule can be applied. Under property rule, infringement to the right must be enjoined by injunctive reliefs. As legal systems have been evolved, direct prevention has been refrained and replaced by sanctions. Sanctions are originated with an idea of retribution. But they are frequently used to deter infringement. We can find a lot of sanctions such as damages, administrative fines, surcharges, fines, imprisonment and etc. Such sanctions are categorized as private, administrative, and criminal ones. Nowadays, the Korean Supreme Court and Korean Constitutional Court have opinions that private sanctions can not be substituted by administrative or criminal ones and vice versa. But, law and economists have different opinions. They frequently wrote several papers on the substitutability among the three remedies. In a certain circumstance, private law enforcement has comparative advantage against public law enforcement including administrative and criminal ones. Here are a list of considerations on the comparative advantage such as costs, incentives, policy and procedure of law enforcement. There is not an absolute solution on the issue but only second best solution.