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민사적 구제수단의 행정,형사적 구제수단에 대한 비교우위

Title
민사적 구제수단의 행정,형사적 구제수단에 대한 비교우위
Author
김차동
Keywords
사적집행; 공적집행; 비교우위; 금지청구; 손해배상; 과징금; 벌금; 징역형; private enforcement; public enforcement; comparative advantage; injunction; damages; surcharge; fine; imprisonment
Issue Date
2014-03
Publisher
한양대학교 법학연구소
Citation
법학논총, vol.31, no.1[2014], pp. 447-470 (24 pages)
Abstract
A right can be defined as a legally protected interest. What kinds of protection shall be given to the right? Lawyers reply to the question that it is a remedy. Law and economists reply to the question indicating two rules, that are property rule and liability rule. Property rule is considered as basic protection to the right. To the very exceptional cases, liability rule can be applied. Under property rule, infringement to the right must be enjoined by injunctive reliefs. As legal systems have been evolved, direct prevention has been refrained and replaced by sanctions. Sanctions are originated with an idea of retribution. But they are frequently used to deter infringement. We can find a lot of sanctions such as damages, administrative fines, surcharges, fines, imprisonment and etc. Such sanctions are categorized as private, administrative, and criminal ones. Nowadays, the Korean Supreme Court and Korean Constitutional Court have opinions that private sanctions can not be substituted by administrative or criminal ones and vice versa. But, law and economists have different opinions. They frequently wrote several papers on the substitutability among the three remedies. In a certain circumstance, private law enforcement has comparative advantage against public law enforcement including administrative and criminal ones. Here are a list of considerations on the comparative advantage such as costs, incentives, policy and procedure of law enforcement. There is not an absolute solution on the issue but only second best solution.
URI
http://kiss.kstudy.com/thesis/thesis-view.asp?key=3233834http://hdl.handle.net/20.500.11754/47979
ISSN
1225-228x
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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