課程資訊
課程名稱
民法經濟分析:以德國最高法院見解為例
Economic Analysis of Civil Law with Examples from German Court Decisions 
開課學期
107-1 
授課對象
法律學院  法律研究所  
授課教師
蕭喬本 
課號
LAW5398 
課程識別碼
A21EM9230 
班次
 
學分
1.0 
全/半年
半年 
必/選修
選修 
上課時間
第12,13,14,15 週
星期一A,B(18:25~20:10)星期三A,B(18:25~20:10) 
上課地點
法研6法研6 
備註
本課程以英語授課。密集課程。
限法律學院學生(含輔系、雙修生)
總人數上限:20人 
Ceiba 課程網頁
http://ceiba.ntu.edu.tw/1071LAW5398 
課程簡介影片
 
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課程概述

Economic Analysis of Civil Law with Examples from Decisions of the German Supreme Court (BGH)

Civil law is more doctrinal and more systematic than Common Law. Common law is more based on cases and precedents. Also in the important common law country USA legal scholarship is traditionally more oriented towards “legal realism” as opposed to “legal formalism”. The schools of legal realism found that often the law in action as well as court decisions can be better understood if one looks at the consequences of the law in society and the economic, social and political structure in which the law operates. Legal formalism however maintains that court decisions are –and should be- dependent on legal concepts or forms and that a proper understanding of such concepts (in German “Begriffe”) is essential for legal scholarship and good legal practice. However in both legal cultures both lines of thinking, legal realism and legal formalism co-exist since long time. There was always acknowledgement in civil law countries and in common law countries that law must be responsive to economic and social developments and that above the concepts and legal forms there exist deep economic and social structures, which play a role in explaining the law and in shaping its development. And in civil law countries as well as in common law countries judges and judiciaries play an important role in concretizing and developing the law. And even though doctrinal thinking and legal forms grossly reduce the complexity of a legal case it is fully understood in civil law countries, that they have often limited value for deciding hard cases.

The discipline of law and economics relates legal norms to the economic concept of economic efficiency and more generally to the consequences of legal norms on the economy and the society at large. This so-called consequentialist attitude to the law is strong in common law countries and in civil law countries. It helps to better understand the social outcome and development of the law. It also helps to solve difficult legal disputes, so called hard cases, in which the use of formal, doctrinal and conceptual methods might not lead to a clear result or might even lead to grossly unreasonable decisions. In such cases the judiciary must use teleological or consequential considerations to arrive at a decision.

This course aims to introduce into the discipline of law and economics with a focus on torts, contract and the corporation. It shows how economic arguments, that is arguments from microeconomic theory and welfare economics can be used in hard cases within the structure of the pre-existing legal forms. These are landmark cases of the German Supreme Court (Bundesgerichtshof or BGH), which my Colleague Hein Kötz, former director of the Max Planck Institute for comparative and international law in Hamburg and myself -using economic arguments and methods- discussed in a joint book titled “Judex Oeconomicus”.

Here is the sequence of teaching. Each of 8 sessions consists of a systematic law and economics part followed by the discussion of a case (named in brackets) related to that part. All literature mentioned in this overview will be made available for you before the class starts.



1. Session: Basics of Law and Economics, The Coase Theorem, Rejection of Pigouvian Economics, Transactions Costs, the Sole Owner Heuristics. Literature: Francesco Parisi, Coase Theorem, NEW PALGRAVE DICTIONARY OF ECONOMICS, 2nd ed.(2007); Case: panic of the pigs (Schweinepanik, BGH).

2. Session: Basics of Law and Economics, Negligence as a Legal and Economic Concept, Literature: Schäfer/Ott, Economic Analysis of Civil Law, Chapter 7, (2012) Negligence and Strict Liability, Case: Road Fencing, (Wildschutzzaun BGH).

3. Session, Pure Economic Loss in Tort and the Tort Contract Boundary, Literature: Mattiaci and Schäfer (2005) The Core of Pure Economic Loss, Cases: (a.The damaged electricity cable, (Stromkabel, BGH) and b. The Consul’s advice, Konsulfall, BGH).

4. Session: Causation as a Legal and Economic Concept, Literature: Schäfer and Ott, Economic Analysis of Civil Law, Chapter 9, Causation, (2012) Case: the contest of architects, (Architektenwettbewerb, BGH).

5. Session: Taking law and compensation for takings from an economic perspective, Literature: Schäfer and Singh (2018) taking of Land by Self Interested Governments, Economic analysis of eminent domain power, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3026204

6. Session, Stability, Flexibility and Efficiency in Contract Law, Market Mimicking Rules and the Cheapest Cost Avoider Principle, Literature: Ayres and Gertner, Filling Gaps in Incomplete Contracts (1989). Aksoy and Schäfer, Good Faith, Encyclopedia of Law and Economics (2015) Case: Standard Form Contract, (Werftbedingungen, BGH).


7. Session, The Economic Theory of Information and Pre-contractual Disclosure Rules, Case: selling at a too low price without knowing (Daktari, BGH).

8. Session, The Limited Company, its Virtues and Vices, Literature: Hansmann and Kraakman, The Essential Role of Organizational Law (2000) Case: The unpaid leasing contract bill, (Autokran, BGH). 

課程目標
待補 
課程要求
待補 
預期每週課後學習時數
 
Office Hours
 
參考書目
待補 
指定閱讀
The books of Zweigert and Kötz, An Introduction to Comparative Law, Oxford University Press and the book of Kötz and Schäfer, Judex Oeconomicus, Mohr Siebeck Verlag Tübingen will be used as background literature. All other materials will be made accessible to students before the lecture begins.  
評量方式
(僅供參考)
   
課程進度
週次
日期
單元主題
第1週
11/28  Session 2 
第1週
11/26  Session 1 
第2週
12/13  Final Examination
Please see the attached file.