금지청구권의 요건사실에 관한 법경제학적 검토

초록

There are several remedial measures for the infringement of entitlements including criminal punishments, administrative sanctions, and private enforcement measures. Among private enforcement measures, damages and injunctive relief are most popularly used. We enforce law to aim at retaliation and deterrence. To deter, violators should be punished up to the maximum magnitude [benefit (or damage)×probability of conviction+reasonable deterrence margin]. Of course the maximum magnitude can be depreciated by the consideration of policy. To remain the maximum, enforcement measures can be replaceable with their equivalence. For a voluntary exchange, injunction is required to be dominating remedy. But, in common law countries, injunctive reliefs is subordinate to damages. The requirement of irreparable injury for injunction originated historically to reflect on its subordination. However, Douglas Laycock reviewed more than 14,000 remedy cases and declared that the irreparable injury rule in common law is almost dead. He made clear that the irreparable injury rule doesn’t mean irreplacceable, inadequate at law but means adequacy of injunction itself. Furthermore, in civil law countries including Korea, injunctive reliefs are rarely recognized without statutory athority. There are few exceptions such as basic human rights. By researching those weakpoints of every jurisdictions, we need to apply injunction on the allmost all infringement of entitlements.

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