법경제학에서 바라 본 형사법에 관한 고찰

The Law and Economics has been directed towards the legal system both the criminal law and the criminal procedure and administration. But traditional law and economics scholarship is almost entirely based on what if generally referred to as neoclassical economics. It derives its conclusions from certain assumptions about human behavior such as consistent preferences and rational behavior. It implies that people have a coherent set of preferences as a basis for formulating goals that they maximize their utility given their preferences, and that they make optimal use of available information. The great appeal of law and economics has been its use of a coherent theory of human decision making to examine legal rules and institutions. The most important function of criminal sanctions would be the deterrence of undesirable behavior. When the social authority may err in assessing a person's benefits or how harmful his act was, the optimal level of sanctions is that which would be just sufficient to deter most of those who would tend to commit the act. The economic analysis of the criminal law would be meaningful even if they were not intended to attain the economic efficiency. This study will contribute to understanding of the criminal law, criminal procedure law and future discussion of criminal policy reform. As cases increasing, courts recently need economic analysis. This study also examines constituting matters of criminal law, including attempts, intents, causation and responsibilities in the context of law and economics. And it includes the economic meanings of Korean criminal procedure law, especially criminal evidential law doctrines. It is good enough to indicate the difference in approach between law and economics and criminal law. It discusses intuitively in an economic context that attitude of criminal responsibility is justifiable not only in the perspective of the optimal deterrence of crime but also in the perspective of incapacitation of crime.