법원판결의 적절성을 경제적 효율성지표로 판단하는 것은 타당한가?

Abstract

The value exchange takes place in the rationality dimension which is built on the value-cost measure. The perfect property rights should be assumed to build the system of value-cost measure. It is the ceteris paribus, invariableness(Hume 1739), and sympathy-consent-free assumptions(Rhee 2012b). However, real life abides in the sympathy-consent dimension where property rights remain imperfect. In real life, inductive reasoning(Hume ibid) or sympathy-consent process replaces the deductive reasoning of rationality dimension as a process of decision making. In the open/indeterminate system of the sympathy-consent dimension, the inductive reasoning relies on the experiences, the coincidental outgrowth of which sets to shape the path dependence of decision process. Relation exchange as the process of building-relation-specificity is more fundamental than the value exchange. The transaction cost is unable to be calculated consistently across the different paths of relation exchange. In the open/indeterminate system of the sympathy-consent dimension, the deterministic method like transaction cost to the question of the aptness of judicial decision is not available. Only evolutionary approach to the answer is available. Repeated practice of judicial decisions leads to the historical development of institutions.