寇斯定理與私法自治

Coase Theorem and the Self-Rule of Private Law

寇斯定理的法律意義，不同於其經濟意義之在於市場交易結果，而是在於市場交易之前提，此即財產權利之如何確定。在實體法，法律規範應無矛盾與漏洞； 在程序法，應經濟有效解決紛爭；在司法制度， 則審判獨立、公正是其要求。自治是私法之原則。財產權之私有，避免了公地悲劇，眾人互蒙其利了。但對物之直接支配力，不是物權法之本質，不能排他或僅能金錢賠償， 才是物權法之定分本質。侵權法與契約法的過失，也應以互蒙其利的交易為其理解基礎。

The legal meaning of Coase Theorem is different from economic one. While its economic meaning would focus on the result of transactions in market, the legal meaning would emphasis on the stability of legal application. Accordingly, there should be no inconsistence and gap in the legal system otherwise the law is unpredictable and therefore no guide for transactions in market. Cost-effectiveness should be implemented in the judicial procedure. The final but not least should be an independent and non-biased judicial system. Private ownership has been established by people to avoid the tragedy of the commons. However, the main function of property law is to resolve the conflicts of interest of owners. Right in rem is not about the direct control of things. Negligence should never be objectified because it symbolizes the peoples acceptance of the law. Those risks which have not been caused by the defendant should be allocated by individual contracts not tort law.