Is Comparative Law and Economics Viable as a Comparative Approach to Korean Civil Procedure ?

The mainstream of the Korean legal community has drawn attention to the theoretical development regarding the interpretation of law, which might not keep up with the change of social consensus. At present, the Korea’s legal community is primed to open the legal service market to foreign practitioners following the signing of the KORUS FTA by both South Korea and USA. Comparative legal studies on common law, therefore, are worth being conducted to find out the way to eliminate or minimize the gap between the reality of practice and the legal system in Korea. In this regard, I endorse a “comparative law and economics” as a coherent tool for analyzing both a common law country’s and Korean civil procedure. A full discussion on this interdisciplinary project requires three steps. The first step is to explain why law and economics is an approach preferable to others in terms of comparative studies. A comparative law and economics is law and economics enriched by a comparative approach. Hence, I delve into the feasibility of law and economics. To show the theoretical excellence of this discipline as compared to that of others is a precondition for the feasibility of a comparative law and economics. Afterwards, the Article illustrates the history of law and economics and its current movement. A variety of law and economics branches exist right now. Unless I select one of those camps, the discipline can not be discussed coherently. Therefore, I discuss the historical development of law and economics and comparative law and economics. Here, I endorse a comparative law and economics as a comparative approach from the normative standpoint. Next, I apply comparative law and economics to analyze both a foreign country’s and Korean civil procedure from the positive perspective. In this regard, the Article will lay out my comparative law and economics from the positive standpoint, and apply it to the real world. This step is necessary to evaluate the feasibility of this approach. Finally, I will conclude that comparative law and economics is viable in Korea and easily applicable to Korean civil procedural law despite the fact that a handful of scholars and lawyers are familiar with this approach.