Economic Analysis of Civil Procedure -A Survey-

This survey provides an overview about the current debates of economic analysis of law of civil procedure. Built on the efficiency perspectives, the economic analysis of law assumes that rational individuals regard the legal system as imposing implicit prices for their choosing certain kinds of behaviors, and thus such ex ante incentives of individuals are determined by specific legal rules. Civil procedure provides the most interesting examples, because there are explicit conflicts of interests, in which the gain of one party means the loss of the same amount of the other opposing party. Several theories have been developed, and this paper tries to explain them in more understandable ways. In the Chapter II, the paper start with asking why trials should occur. In other words, what are the social costs and benefits of civil procedure system. By identifying the social costs and benefits of suits, it should be emphasized that the private incentive to suit is highly likely to diverge from the socially optimal level of suits. Plaintiffs make their filing decision based on a comparison of their private costs and benefits, but social costs and benefits are not internalized in that calculation. In the following Chapter III, the basic model of civil procedure ― so called differing-perception model ― is closed examined. According to this model, litigants disagree about the likelihood of a trial outcome based on different opinions, and the level of suits and settlements is determined by the degree of such disagreement. The Chapter IV deals with the most interesting topic in this area, which is the theories of frivolous or strike suits. Such kind of suits attracts attentions,...이 연구는 서울대학교 신임교수 연구정착금으로 지원되는 연구비에 의하여 수행되었음