최근 공법상 경제입법에 대한 법경제학적 평가: Coase와 Epstein의 이론을 중심으로

The core of national policy to solve social problems is concluded to regulation, and ex-ante evaluation of regulatory legislation is much more important than ex-post remedial measures. Legislative evaluation is divided into “legal hermeneutic evaluation,” which focuses on fairness or interpretive logic, and “legal and economic evaluation,” which focuses on increasing the overall utility of society. In this paper, three economic legislations under public law were selected and a legal and economic evaluation was attempted. The specific evaluation method was Epstein’s six-step “regulatory taking theory” applied, and especially in the last six steps, “Requirements for the efficiency of regulation itself,” were made to bring about the perspective of Coase’s “transaction costs” emphasized by. First, the amendment to the “Act on Special Measures for Strengthening the Competitiveness of the Materials, Components, and Equipment Industries” is an example of the creation of unnecessary costs and waste of budget through the creation of new public institutions without generating any benefits. Second, the bill of the “Framework Act on the Sharing Economy” provides financial support to sharing economy business owners, which brings about the benefit of an “increase in the number of sharing economy business owners,” but as a result, there is opposition from another existing business owners who have not received support, costs are also incurred due to problems such as double regulation where regulations of the existing competent ministries for each business area and the newly created “Ministry of Economy and Finance” overlap. In particular, providing additional financial support violates the “requirements for the efficiency of regulatory means (step 3)” in that since the basis for financial support is already in place under existing individual laws, supplementing it is a more efficient means. Third, the enactment of the “Special Act on Distributed Energy Activation” generates the benefit of fostering renewable energy businesses by compulsorily assigning electricity sales companies to electricity users, but also creates social costs such as sunk costs for existing businesses. In particular, it violates the “necessity of compensation and requirements for fair compensation (stage 4 and 5 requirements)” for existing businesses. The theories of Coase and Epstein can be very helpful in ex-ante legislative evaluation.