경쟁법의 목적으로서의 ‘효율성(Efficiency)’에 대한 법철학적 검토

Abstract

The objective of competition law has been debated mainly in US and EU, and especially the Chicago School which had emerged as an alternative theoretical framework against traditional Harvard School in 1970s in US has led it arguing that efficiency should be the exclusive goal for all economy-related laws including competition law. Under its powerful influence, efficiency now has become the concept which represents the goal of law, and functions as a criterion for main prohibitive activities in competition laws in many countries including Korea. In oder to see whether efficiency is eligible for the goal of law, we need to throughly examine the definition, assumption, and philosophical implication of it. When efficiency is accepted as the objective of law, issues may arise. The concept of efficiency is grounded on abstract and incomplete presumptions of 'economic men(homo economicus)' and 'perfect competition', so it never considers such facts as on what condition the affected parties are, and whether parties in question have economic capacities to improve their interests, etc. These economic reasoning neither fit well to the essentials of legal reasoning, nor is proper to solely and directly apply to complex realities. Furtuermore, Pareto efficiency, Kaldor-Hicks efficiency, and wealth maximization is not neutral on the problem of initial resource allocation. It is said that efficiency can be obtained regardless of initial resource allocation, but the matter is not only the resulted state of resource allocation depends on the state of initial resource allocation, but also the degree of inequalities in initial resource allocation could be more deepened under certain circumstances. Therefore, enforcement of competition law which aims at maximizing efficiency or wealth, is likely to widen the gap in given conditions of participating players. It is not acceptable ethically or morally, needless to say from the view of legal policy. Rather, looking back the history of competition law, the goals such as fairness or distributive justice, aside from efficiency, have been very important motives in enforcing competition law.