법의 최적집행(Optimal Law Enforcement)에 관한 연구

초록

Social planners adapt different legal methods to achieve same goals go deter same kind of infringement. In the case, they should try to optimally combine various methods of law enforcement to avoid its inefficiency. Optimal law enforcement among legal methods can be discussed on the condition that all the relevant legal methods may be quantitatively substitutable each other. Optimal law enforcement as well as law enforcement are pretty new topics for Korean law scholars. Therefore there are very few papers on the issues. On this paper, I would like to briefly introduce the basic optimal law enforcement theory which has been developed in the American Law&Economics and add some Korean understanding to it. Law enforcement can be replaced by the concept, remedies. Remedies include civil remedies such as injunction, damages, administrative remedies such as cease and desist order and administrative fines, and criminal sanctions such as fines, imprisonments and corporal punishment. Law and Economists propose maximum sanction in which benefits from infringement,, shall be multiplied by a reciprocal of probability of detection and conviction. But the maximum sanction can not always be optimal, because there exist some enforcement costs. By considering the costs, law and economists suggest optimal law enforcement. Optimal law enforcement arrives where marginal benefits of law enforcement equal marginal costs of law enforcement. Benefits of law enforcement can be defined as any benefits which can be derived from reduced infringement by the activity of law enforcement. Also, law and economists suggest that social planners stop to sanction if benefits(b) exceed harm(h) or maximum expected sanction is far less than benefits and harms.

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