회사법의 법경제학적 접근을 위한 방법론적 소고

Theories of the firm stayed in the background during the half century ending in 1980, while a conception of the firm as a management power structure prevailed unchallenged in legal theory. When “Law and Economics Approach to The Corporate Law” asserting a nexus for a set of contractual relationships among individual factors of production appeared around 1980, the situation changed. The Law and Economics Approach has two variants. One has closer ties to agency cost economics and the other to transaction cost economics. This two related perspectives generate a conceptual account of why firms exist and why they are structured as they are, and a prescriptive account of how they should function. The seminal insight that economics provides to the analysis of corporate law is that people respond to incentives. Law and economics is, at root, a behavioral theory, and therein lies its true power. The concern of law and economics with how actors in and subject to the legal system respond to legal directives now permeates the mainstream of legal academic thought. Thus, Resolving how and why the law should intervene requires a theory of how parties bargain. Such a bargaining model must account for how parties structure their relationships. Only by examining the bargaining process and the likely behavioral effect of proposed alternative rules on the parties can we determine whether and how the corporate law should supply a liability rule. Law and economics writers restated corporate law in the new theory's terms and successfully reoriented legal discourse on corporations.