목적론적 관점에서 바라 본 미국 불법행위법 - 불법행위법 영역에서 바라 본 ‘정의란 무엇인가?’ - (The American Tort Law from the Perspective of Teleology)

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초록

American tort law has been quite different from that of Korea from theperspective of how to tort liability is imposed. In both countries, thecomponents of tort liability - the act by an injurer, the injury to a victim,and the causation between the act and the injury - are very close to eachother. The large number of victims are not compensated under the nameof tort liability even though it is clear for the existence for an actor and avictim. I believe that social policy and judicial review may play moreimportant roles than tort theory in determining whether the injurer istortiously liable to the victim or not. In Korea, these kinds of debates arehiding underneath the openness to public. On the other hand, in the U.S.,the number of legal scholars have own social and economic perspectives ontort liability. In particular, Coarse Theorem has played a central role tonewly understand tort liability since 1970s. In law and economics, it statesthat bargaining is mostly likely to lead to an efficient outcome regardlessof the initial allocation of property under the low transaction costs world.
Ronald Coase claimed this from “The Problem of Social Cost".
The concept of transaction costs has produced varied settings in thenormative prescriptions and the positive analyses. Since the concept oftransaction costs is not clear, it is not easy to understand how it works intort settings instead. I have tried to show how transactional costs haveeffects on tort liability and economic analysis from several diagrams. Inshort, it is likely that tort liability is based on economic efficiency. InKorea, legal academcis have paid little attention to understand tort liabilitybased on economic analysis because they believe that the tort liability issupposed allocated among parties. This notion may not be wrongful untilfacing modern tortious behaviors that the small number of injurers producethe diverged large number of victims.
It is hard to define what justice is in tort settings because all of injurersare not liable to victims they caused. Legal or social barriers prevent allvictims from being fully compensated. Korean academics have focused onlegal barriers while American ones on economic barriers. I believe thatthere is no significant difference among two legal systems for who issupposed to be liable for injuries. In American academics, a new toolbased on economic analysis has been used in determining tort liability.
This analysis makes Korean scholars feel constrained to do it. However, itis time to try to accept what justice is in tort law based on economicanalysis rather than traditional legal theory. I hope that this paper maycontribute to this movement.

영어초록

American tort law has been quite different from that of Korea from theperspective of how to tort liability is imposed. In both countries, thecomponents of tort liability - the act by an injurer, the injury to a victim,and the causation between the act and the injury - are very close to eachother. The large number of victims are not compensated under the nameof tort liability even though it is clear for the existence for an actor and avictim. I believe that social policy and judicial review may play moreimportant roles than tort theory in determining whether the injurer istortiously liable to the victim or not. In Korea, these kinds of debates arehiding underneath the openness to public. On the other hand, in the U.S.,the number of legal scholars have own social and economic perspectives ontort liability. In particular, Coarse Theorem has played a central role tonewly understand tort liability since 1970s. In law and economics, it statesthat bargaining is mostly likely to lead to an efficient outcome regardlessof the initial allocation of property under the low transaction costs world.
Ronald Coase claimed this from “The Problem of Social Cost".
The concept of transaction costs has produced varied settings in thenormative prescriptions and the positive analyses. Since the concept oftransaction costs is not clear, it is not easy to understand how it works intort settings instead. I have tried to show how transactional costs haveeffects on tort liability and economic analysis from several diagrams. Inshort, it is likely that tort liability is based on economic efficiency. InKorea, legal academcis have paid little attention to understand tort liabilitybased on economic analysis because they believe that the tort liability issupposed allocated among parties. This notion may not be wrongful untilfacing modern tortious behaviors that the small number of injurers producethe diverged large number of victims.
It is hard to define what justice is in tort settings because all of injurersare not liable to victims they caused. Legal or social barriers prevent allvictims from being fully compensated. Korean academics have focused onlegal barriers while American ones on economic barriers. I believe thatthere is no significant difference among two legal systems for who issupposed to be liable for injuries. In American academics, a new toolbased on economic analysis has been used in determining tort liability.
This analysis makes Korean scholars feel constrained to do it. However, itis time to try to accept what justice is in tort law based on economicanalysis rather than traditional legal theory. I hope that this paper maycontribute to this movement.

참고자료

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