조망(眺望) 이익의 권리성 분석— 법경제학적 접근

In the world we experience, the problem of distribution is always an important issue because of the scarcity of resources, and the transaction costs for solving it are inevitable. In the end, the law and economic project such as efficiency of resource allocation is a current and routine practice of our life world. One of the areas where this problem has been highlighted is the problem of sunshine and vista in the environment surrounding us. As a right to receive a certain amount of sunlight, this is a right under the Act, and our case also recognizes it as a legal right. On the other hand, the landscape, such as a beautiful natural and historical scenery, looks similar to sunshine, but unlike the right to sunshine, in that it is not recognized as a legal right and is recognized only as subjective interest. Even in our case of Supreme Court, in order to be recognized as legally protected profits, the importance of vision must be recognized to the extent that the interests of the vision are of special value and must be approved as an independent interests in the common sense. Are the position of such cases reasonable especially in the project of law and economics?According to the law and economic approach to the view, namely vista, the view is also a kind of resource under the economic limit situation. Especially, according to the categorization of the rights or entitlement of Calabresi and Melamed, the interests of the view are weak as property rights that can be disposed of in advance(ex ante). Furthermore, it is difficult to protect the aftermath(ex post) of infringement through liability rules. In the end, the view is difficult to recognize the legal right in a sense that there is no economic substance and efficiency to protect legally. However, as the precedent of Supreme Court pointed out, under certain conditions of legal and economic nexus, exceptional liability rules can only be protected under such conditions as would give a high appreciation of the benefits to the landscape. In this respect, the position of the case - even though it does not use economic analysis of law as a tool of argumentation - is convincing and reasonable.