法의 解釋과 適用에서 經濟的 效率의 考慮는 가능한가?

This paper deals with the problem of whether economic efficiency should be a factor to be considered in the interpretation and the application of law. In this context, looking to the controversy in Germany may be helpful. According to Eindenmüller, even though economic efficiency can play a role in the process of legislation, judges should not consider economic efficiency in general. On the other hand, Janson asserts that economic efficiency has relevancy not only to legislation, but to the interpretation and the application of law. I argue that economic efficiency can be included among the factors in the interpretation and the application of law. The private autonomy and the guarantee of private property are acknowledged to accomplish economic efficiency. The precedents on the interpretation of the contract and mistake can be analysed in terms of efficiency. The general clause of good faith and the doctrine of the abuse of right can be understood as efforts to reduce transaction costs. In the area of the constitutional law, the principle of the protection of reliance contributes to legal certainty, thereby enhancing efficiency. The principle of proportionality is another example of the economic way of thinking.