목적론적 관점에서 바라 본 미국 불법행위법

The American Tort Law from the Perspective of Teleology

American tort law has been quite different from that of Korea from the perspective of how to tort liability is imposed. In both countries, the components 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 each other. The large number of victims are not compensated under the name of tort liability even though it is clear for the existence for an actor and a victim. I believe that social policy and judicial review may play more important roles than tort theory in determining whether the injurer is tortiously liable to the victim or not. In Korea, these kinds of debates are hiding underneath the openness to public. On the other hand, in the U.S., the number of legal scholars have own social and economic perspectives on tort liability. In particular, Coarse Theorem has played a central role to newly understand tort liability since 1970s. In law and economics, it states that bargaining is mostly likely to lead to an efficient outcome regardless of 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 the normative prescriptions and the positive analyses. Since the concept of transaction costs is not clear, it is not easy to understand how it works in tort settings instead. I have tried to show how transactional costs have effects on tort liability and economic analysis from several diagrams. In short, it is likely that tort liability is based on economic efficiency. In Korea, legal academcis have paid little attention to understand tort liability based on economic analysis because they believe that the tort liability is supposed allocated among parties. This notion may not be wrongful until facing modern tortious behaviors that the small number of injurers produce the diverged large number of victims. It is hard to define what justice is in tort settings because all of injurers are not liable to victims they caused. Legal or social barriers prevent all victims from being fully compensated. Korean academics have focused on legal barriers while American ones on economic barriers. I believe that there is no significant difference among two legal systems for who is supposed to be liable for injuries. In American academics, a new tool based on economic analysis has been used in determining tort liability. This analysis makes Korean scholars feel constrained to do it. However, it is time to try to accept what justice is in tort law based on economic analysis rather than traditional legal theory. I hope that this paper may contribute to this movement.