정의 ․ 형평과 효율:민사법의 경제분석에 국한하여

The development and application of law and economics presupposes participation and contributions of lawyers and legal academics. Traditional lawyers and legal academics might, however, have some reluctance to adopt economic methodology in analyzing legal issues for reasons, one of which seems to be a suspicion that economics emphasizes only efficiency and wealth and does not consider justice and fairness which are core values in law. This suspicion has its own right because most economic analysis has focused on efficiency and wealth. Economics can accommodate other values and should, but has not actively thus far. Still, economic analysis of law is very useful for lawyers and legal academics, and to a certain extent, the fact that economics has focused overwhelmingly on efficiency and wealth is the very reason why it can contribute to legal scholarship. Law and policy that sees only justice and fairness as its goal and does not reckon the incentive structure it creates frequently proves to be self-defeating or at least non-operative while incurring costs and wastes. It is for those who are subject to that law and policy can and might well avoid it, especially when it comes to private law matters where the paramount principle is private autonomy. In this situation, justice and fairness is frequently overwhelmed by efficiency concerns so that sometimes justice and fairness cannot even be pursued directly. Moreover, the most fundamental institutions in private law including the notion of simple and undividable property and the fault principle can be analyzed adequately in terms of economic efficiency rather than in terms of justice and fairness. Law and economics can be a useful tool to remind lawyers and legal academics the importance of how rather than for what and to analyze the possible responses or outcomes, which lawyers and legal academics also should be interested in