악의적 소송에 관한 경제학적 분석 : 한국의 민사소송법을 중심으로

The purpose of this paper lies in an economic analysis of the Korean Civil Procedure Act, as many commentators have recently expressed their concern about an 'explosion of litigations' in Korea. Specifically, we evaluate how effectively the Act has been designed to contain 'frivolous suits' (sometimes interchangeably used with the term 'negative expected value suits'). We are particularly concerned with frivolous suits occurring under complete information between litigants, as they are what have been a most vexing question to researchers and should be deterred by judicial policy. For this goal, we first demonstrate the major tenets underlying existing representative models in the field of law and economics, and, based mainly upon our independent theoretical work, briefly introduce its analytic results regarding more comprehensive conditions for frivolous suits to take place. The next step as the main analysis in this paper is to apply these conditions to the Korean Civil Procedure Act in order to see if the Act commands a reasonable degree of deterring frivolous suits. A preliminary conclusion through these processes will be that, broadly speaking, the Act is relatively well-equiped to cope with them. We further provide a few short-term policy suggestions. Finally, we summarize and supplement, taking into consideration the current situations surrounding the Korean courts, our earlier attempt to design a institutional mechanism to contain the frivolous suit more fundamentally. We expect our various tasks in this paper to trigger, in yet fuller force, more academic research in Korea on this profoundly critical issue of judicial policy.