The Least Cost Avoider:The Economic Analysis Of Legal Theory

With the development of the society,Juristiche Dogmatic becomes less and less capable of dealing with some new matters.There are two problems in Juristiche Dogmatic.First,Juristiche Dogmatic cannot solve the problems when there are no explicit corresponding legal provisions.Second,although in some cases some provisions are made by the Juristiche Dogmatic,the law is not in conformity with the actual situation and the judgment is not in accordance with the public's awareness.In this thesis,by introducing a commonly used legal economics----the least cost avoider doctrine,we hope to provide some help to solve the problems of existing laws.In our definition,the rule of least cost avoider doctrine means people who can use the minimum cost to avoid accident or loss are to bear the responsibility of prevention.This thesis innovates mainly in three aspects.Firstly,this paper innovatively introduces the common economical tool time axis into the law,and sort out related literature of the least-cost avoider doctrine about time axis.It effectively makes up the deficiency of the understanding about minimum preventing cost from existing literature.We believe the minimum preventing cost is more than just one.And when we have clear evidence,we can always find the minimum preventing cost on the corresponding time spot.Secondly,this paper compares the minimum preventing cost with other law doctrines(including Hand Formula,the last clear chance doctrine,the least-cost rule,come to nuisance).We find different legal principles are suitable for different situations.But essentially,they are based on the consideration of costs and gains.They are merely the different expressions of the same economic logic.Finally,we analyze the judicial cases in mainland China with the principle of the minimum preventing cost for the sake of making up for the deficiency of civil law system's understanding about the common law's principles.We analyze this article from both the law and the legal economic perspectives.In that way,can find the advantages of legal economic analysis through comparison.We hope this thesis can make some contributions to the development of economic law in Chinese mainland.