가맹계약의 해지에 대한 규제와 그 한계

최영홍(Young-Hong Choi) 한국비교사법학회 2007 比較私法 Vol.14 No.2

  Franchising has enabled a large number of companies to achieve national and even international trademark and trade name recognition within a short time and with little outlay of their own capital. At the same time, it has enabled innumerable individuals with little capital to achieve independent businessman status under the guidance of an experienced company and backed by the reputation of a well-known product or trade name.<BR>  Franchising has become generally popular from the late 1960s. As popularity grew so did abuses and perceived abuses. Most particularly, concerns were raised about the degree of control the franchisor excised over the franchisees. Franchisor"s could and did dictate such matters as the franchisee"s choice of location, the appearance of the premises of business, the products sold or used, bookkeeping methods, advertising and sales methods, the qualification and appearance or personnel. Above all else, the franchisor"s power to terminate the franchise is perceived as a power of life or death.<BR>  The extent of control excised by the franchisor over the franchisee has been the subject of considerable regulation. Recognizing the disparity in bargaining power between the franchisor and franchisee and franchisee"s usual making a substantial investment, franchise terminations are restricted by a thicket of laws, inter alia, state statutes limiting causes and requiring prior notice, a right of appeal and buybacks of inventory and equipment purchased from the franchisor.<BR>  Given all the rationales of the restrictions of franchise terminations, Korea Fair Franchise Practices Act(KFPA) regulates them too rigidly. It requires a franchisor sending three-time prior notice and giving at least two months to cure the deficiencies uniformly to terminate the franchise with only a few narrow exceptions. Therefore, KFPA should be amended to lower the degree of restrictions on the franchise terminations as equivalent to those of US state laws, which state by and large that (ⅰ) a franchisor is prohibited from terminating a franchisee without providing thirty days prior notice, as well as identifying the rationale for termination unless the franchisee be in such occasions as being convicted of a crime relating to the franchise, becoming insolvent or bankrupt, default in amounts owed to the franchisor, falsifying records or reports, losing the right to occupying the premises, materially impairing the goodwill associated with the franchisor"s trademarks or the like; (ⅱ) a franchise relationship cannot be terminated unless the franchisor has a good reason for the termination, and if not the case, the franchisor is required to compensate the franchisee for certain assets of the franchised business which are listed in the Administrative Rule under the KFPA.

유통법의 의의와 지도원리

최영홍 ( Young Hong Choi ) 한국유통법학회 2014 유통법연구 Vol.1 No.-

The distribution law has had a profound impact on businesses, the national economy and our daily lives. Yet it has still not been even conceptualized and faces a long road ahead in resolving social conflicts and clashes in the distribution industry. That said, this paper seeks to present and explore a new, albeit preliminary, viewpoint on the distribution law: the concept of distribution and the scope and meaning of the distribution law will be revisited, and the guiding principles of the distribution law will need to be established in consideration of the industrial ecosystem. After achieving political democracy, the Korean society put “economic democratization” on its top agenda to eradicate deep-rooted evils brought on by intensive economic growth. Although it has led to considerable achievement in containing the greed and misbehavior of large-scale businesses, it also caused reckless abuse of concepts like coexistence or shared growth. Some of the consequences of this have been the deviation of Korean distribution laws from the global standard and deterioration in the benefits provided to the consumers. Such chaos is a growing pain that Korea may have to suffer in the course of transition to an advanced economy. Under these circumstances, the guiding principles of the distribution law should be properly established without delay to help put an end to the chaos. Such principles should espouse the freedom of contract, prevention of unfair business practices and protection of competition, just like those under the pertinent legislation of advanced nations. At the same time, “ideas of cooperation” such as coexistence or shared growth should be made complementary to the fundamental framework resting on these principles. This would incentivize all players in the distribution industry to concentrate their focus and efforts on consumer choice, help prevent small-sized players’ overdependence on regulations and impede large players’ greed. In short, the distribution law must remain steadfast in its discernment and conviction to make the players “compete for something worth competition” and “cooperate in something worth cooperation.”

대리상의 보상청구권 규정의 법적 성질과 다른 중간상에의 확대 적용 여부

최영홍 ( Young Hong Choi ) 안암법학회 2011 안암 법학 Vol.0 No.36

Korean Commercial Code Sec. 92-2 provides that on termination of his agency the commercial agent is entitled to be indemnified. This entitlement results from the idea that an agent may spend money, time and effort establishing a market and goodwill for his principal, but then be deprived of the benefit of his investment through termination of his authority by a principal who seeks to deal directly with customers or employ another agent to do so. According to the laws of EU and its member states, parties cannot contract out the provision for indemnity ``to the detriment of the commercial agent before the agency contract expires``. That means where a contract purports to exclude indemnity, the agent would nevertheless be entitled to it. Even though there is no such provision in Korean Commercial Code, some Korean scholars argue that the provision for the entitlement of indemnity is mandatory. I do not think so. The freedom of contracting parties to govern their contractual relations is a basic tenet of commercial law and that freedom is removed only by statutory regulation or rules that are mandatory, of which Korean Commercial Code does not know. Therefore, the law of indemnity of a commercial agent should be construed as gap-filler that supplies a contractual term that the parties failed to include in the contract. Another issue is whether entitlement provision of indemnity of a commercial agent should be applied, by analogy, to such a self-employed commercial intermediary as a franchisee, commission agent, distributor or the like. The goal of the construction of the law could be to find out the concrete fairness only if, and to the extent that, the legal stability is not derogated. Considering the clear and unequivocal wordings of Commercial Code Sec. 89 which provide for "in the name of the principal", the definition of a commercial agent does not extend to self-employed intermediary who purchases in his own name goods from the principal and subsequently sells those goods to third parties but acting on behalf of the principal. The activity pursued by persons acting on behalf of a third party but in their own name is different from that pursued by commercial agents. As the European Court of Justice and the German Government rightly observes, the interests and the need for protection of their occupations are not the same. Accordingly, there is no reasonable doubt that the scope rule of commercial agent include other type of self-employed commercial intermediaries. It is time to wait and see the attitude of the Korean Supreme Court to the issues reviewed above, which would be expected to come out in near future.

가맹금의 개념과 정의조항

최영홍 ( Young Hong Choi ) 고려대학교 법학연구원 2010 고려법학 Vol.0 No.56

Franchising is a brand-new way of business which had not been known of until the 20th century. That is, the traditional contract law has only covered agreements that deal with complete control over one party to another (e.g. employment agreement) or those that deal with one party imposing duty without any operational control to another party. However, franchise agreement involves licensing of franchisor`s intangible property right, such as trademark, service mark, logo and other commercial symbols, to the franchisee; substantial control over the franchisee`s business method so as to protect those rights entitled to the franchisor; and yet the franchisor does not undermine the franchisee`s status as an independent businessman. In order to constitute the franchise agreement and differentiate it from any other types of agreements, franchisee agreement must include the following requirements: (1) licensing of the franchisor`s commercial symbol to the franchisee (2) franchisor`s substantial control over and/or assistance to franchisee`s business operation (3) required payments in exchange for the above licensing, control and/or assistance (4) independence between franchisor and franchisee. The required payments requirement brings about complex issues as regards the definition of franchisee fee. Therefore, many franchise related laws specifically provides definition of franchisee fee. In Korea, Fair Franchising Act article 2.6 provides its definition. However, the above article 2.6, unlike the foreign legislations, commits the error of circular reasoning by explicitly listing the specific types of franchise fees, and yet providing that any other payments from the prospective franchisee or the existing franchisee to the franchisor to enter into or continue franchised business in article 2.6.5. Further, this definition of franchise fee is adopted when applying article 3(exemption) of the above Act as criteria for exempting the application of the Act and in deciding the qualification of article 6(deposit of franchise fee). The clause regarding the definition of franchise fee in the Korean Fair Franchising Act is inappropriately enacted, which calls for a legislative reform to adopt the mainstream of the foreign legislative precedent, i.e. to provide a general definition of franchise fee and then to exclude the several types of payment that does not qualify as franchise fee. Also, it is advisable to supplement the general definition with the Notifications of the Guide by the Korea Fair Trade Commission as they do with the Compliance Guide in the United States.

프랜차이즈계약에서의 상권잠식의 법리

최영홍 ( Young Hong Choi ) 한국경쟁법학회 2014 競爭法硏究 Vol.30 No.-

As some of the franchise business sectors are mature, competition hasintensified and the issue of encroachment has come to the forefront. Encroachment is defined most often in terms of geographic competition whichis traditional. Traditional encroachment is the franchisor``s placement of a newcompany-owned or franchised unit too close to an existing one. As someindustry analyst would have said it, traditional encroachment has emerged tobe one of the most vexing, emotional and yet least understood franchisingproblem today. Whether encroachment has a negative impact on any individual franchisee is anempirical matter that depends on how customers react to this new option aswell as how the franchisor chooses to organize the distribution channel. Wecannot draw general conclusions on the effect of encroachment decisionsbased on a priori reasoning - the net effect on franchisees always depends onthe specific circumstances and methods involved. Whatever strategy is used,however, conflict between franchisees and their franchisor will emerge ifeither party feels constrained by the other, or finds that it is being unfairlytreated by the other. In general, whether the negative impact on sale or thepositive business generation effect dominates in any particular instance ofencroachment ultimately must be addressed on a case-by-case basis byfranchisors and their franchisees. Call for regulatory intervention must betempered by the recognition that encroachment is not as simple an issue assome proponents of legislative remedies suggest. There is currently no general doctrine to be applied to the disputes ofencroachment while actions regarding encroachment may be frequentlybrought in civil court from now on. Thus, when the franchise contractexpressly reserves to the franchisor the right to open outlets in closeproximity to franchisee``s units, the courts might well be unsympathetic to franchisees`` encroachment claims. Further, when the contract expressly deniesterritorial protection to the franchisee by stating that the franchise is limitedto the outlet``s address, but does not expressly reserve for the franchisor theright to open additional outlets nearby, courts again might well be generallyunsympathetic to claims of encroachment. Finally, when the contract fails toestablish the parties`` rights in unequivocal language, the facts of the case andthe franchisor``s representations and policies become more central.

대규모유통업법의 입법취지와 적용 범위

최영홍(Young-Hong Choi) 한국기업법학회 2016 企業法硏究 Vol.30 No.3

대규모유통업법은 기존의 공정거래법 체계상 유통거래에 있어서 “보이지 않는 법위반(invisible violation)”에 대한 실효적 규제가 어려운 점을 해소하기 위해 제정되었다. 종래의 법체계상 대규모유통업자는 납품업자에 대한 대규모유통업자의 거래상 지위 남용행위를 규제하기 위해서는 그러한 남용행위가 부당하다는 점에 대한 증명책임을 공정거래위원회가 부담한다. 그런데 경제적 의존상태에 있는 납품업자는 대규모유통업자의 법위반행위에 대하여 신고하려 하지 않음으로써 결국 집행당국이 관련 증거를 포착하기 어려운 구조였다. 이로 인한 규제의 흠결을 방치하는 것은 법집행상의 형평성에 반하기 때문에 동법은 계약의 서면주의와 증명책임의 전환을 제도화하게 된 것이다. 대규모유통업법상 대규모유통업자의 정의조항에는 매장 임차인에 관한 내용이 빠져 있어 논리상 결함이 있다. 또한 도매상인 가맹본부(franchisor)가 마치 소매상인 것처럼 규제의 대상에 포함된 것도 법체계의 일관성을 해친다. 이러한 점들의 보완이 필요하다. 또한 새롭게 등장한 Mobile Commerce 기업은 그 규모의 대형화에도 불구하고 실제 거래관계에 있어서 납품업자에 대하여 거래상 우월적 지위에 있다고 보기 어려운 여러 특성이 있다. 따라서 이러한 점을 이론적으로 규명함으로써 Mobile Commerce기업들이 동법 적용 여부의 모호성에 따르는 사업위험에서 벗어나 보다 적극적으로 사업활동에 전념할 수 있도록 할 필요가 있다. Fair Trade Practices in Large-scaled Retail Business Act (hereinafter “FTPLRBA”), effective on January 1, 2012, was enacted for the purpose of regulating the “invisible violations” effectively, which have been committed by the large-scaled retailers over the suppliers but hardly detected by the administration concerned. Under the legal system of the existing Monopoly Regulation and Fair Trade Act, the abuse of trade position and its unfairness, to be sanctioned, is to be evidenced by the Fair Trade Commission. Producers and/or wholesalers, who supply the goods to the large-scaled retailers under the economic dependence in the trade relations, are unwilling to inform the unfair behaviors of the latter for fear of disadvantage repaid from that. It can not be justified to let the unfair practice free of sanction because of difficulties in getting the evidences of unfair behavior to prove. Therefore, FTPLRBA has contained both the provision to require the contract concluded by the parties to be in writing and the provision to shift the burden of proof from the Korea Fair Trade Commission to the large-scaled retailer respectively. There are some illogical flaws in the definition provision of FTPLRBA, which need to be corrected. No wording about the lessor of the department is included in the definition of large-scaled retailer. The franchisor, who is not a retailer but a wholesaler, is included in the scope of application of FTPLRBA enacted for the purpose of regulating the superior powered retailers. Mobile commerce has been and will be growing rapidly as a new distribution channel. It is not yet clear whether the mobile commerce business is in the scope of FTPLRBA. Arguably, the business is not in that scope because in the context of mobile commerce, the mobile commerce business company does not have the superior position over its counterpart in many respects, the supplier are not in the significant economic dependence on the company. More than anything else, the mobile commerce company has no physical shopping place which is the main source of superior bargaining power in the offline distribution.

대규모유통업법상 서면계약 요건

최영홍 ( Young Hong Choi ) 한국상사판례학회 2016 상사판례연구 Vol.29 No.3

대규모유통업법이 시행된 지 5년째 접어들고 있다. 동법은 경제적 의존상태에 놓인 납품업자 등을 실효적으로 보호하기 위해 제정되었다. 동법에서 규정하고 있는 거래계약의 서면화는 유통계약이 체결되면 그에관한 계약서면을 대규모유통업자가 작성하여 납품업자 등에게 교부하도록 하고 있다. 계약의 존재와 내용에 관한 증거를 남기도록 한 것이다. 이러한 제도는 계약자유의 원칙을 수정하는 것이지만 다른 한편, 유통거래관련 불공정거래행위의 “보이지 않는 법위반”으로서의 특성상 법집행상의 형평성을 제고하기 위해서 꼭 필요한 법제라 할 수 있다. 그럼에도 불구하고 위 법률에는 무익한 내용도 포함되어 있다. 유통계약서면을 작성하도록 하면서 그 서면에 반드시 양당사자 모두의 서명을 요하도록 하는 것이 그것이다. 전자문서에 의해 거래할 경우에는 양당사자의 공인전자서명을 요구하고 있기도 하다. 대규모유통업자의 거래상대방에게 까지 이러한 요구를 하는 것은 대규모유통업법의 기본취지에 반한다. 대규모유통업법은 대규모유통업자의 법위반행위를 억제하려는 데 그 기본취지가 있는 것이지, 여하한 이유로도 보호대상자인 납품업자를 괴롭히거나 규제하려는 법이 아니기 때문이다. 불필요하게 납품업자 등을 규제하고 경제적 부담까지 지우는 동법 제6조의 조항은 마땅히 개선되어야 한다. Fair Trade Practices in Large-scaled Retail Business Act (hereinafter “FTPLRBA”) was enacted for the purpose of regulating the “invisible violations” committed by the large-scaled retailers over the suppliers more effectively. Those violations are hardly detected by the administration concerned. Under the legal system of the existing Monopoly Regulation and Fair Trade Act, the abuse of trade position and its unfairness, to be sanctioned, is to be evidenced by the Fair Trade Commission. Producers and/or wholesalers, who supply the goods to the large-scaled retailers under the economic dependence in the trade relations, are unwilling to inform the unfair behaviors of the latter for fear of disadvantage and retaliation repaid. It can not be justified to let the unfair practices free of sanction because of difficulties in getting the evidences of unfair behavior to prove. Therefore, FTPLRBA has contained both the provision to require the contract concluded by the parties to be in writing and the provision to shift the burden of proof from the Korea Fair Trade Commission to the large-scaled retailer respectively. This paper reviews some of the provisions of FTPLRBA, which are related to the requirement for the records and signatures when the distribution contract is concluded between the parties thereto. There are some flaws in the provisions, while they have good reason to be inserted in the Act considering the purpose thereof as a whole. There is no need to require the signature on the contract documents, and the electronic certified signature on the electronic record in the electronic business setting, of the suppliers. Such requirement gives the suppliers rather harms than benefits. Unnecessary regulation should be avoided.

우리나라 가맹사업법의 현주소

최영홍(Young-Hong Choi) 서강대학교 법학연구소 2007 서강법학 Vol.9 No.-

대규모유통업법의 제정과 운용상 쟁점

최영홍 ( Young Hong Choi ) 한국경쟁법학회 2012 競爭法硏究 Vol.25 No.-

프랜차이즈산업 발전을 위한 제언

최영홍 ( Young Hong Choi ) 한국유통법학회 2018 유통법연구 Vol.5 No.1

프랜차이즈는 가맹희망자의 창업을 촉진하고 가맹본부의 사업 확장을 용이하게 하며 소비자에게 검증된 품질의 상품과 서비스를 공급하게 하는 유통방식이다. 오늘날 전세계적으로 널리 이용되고 있다. 그럼에도 불구하고 프랜차이즈에 대한 평가는 우호적이지 않다. 이 논문에서는 프랜차이즈에 대한 부정적 인식을 해소하고 프랜차이즈가 건전한 유통산업으로 발전하도록 하기 위해 가맹계약의 당사자와 관련 기관들에게 요청되는 사항을 제시한다. 우리 프랜차이즈가 비판의 대상이 되고 있는 원인은 복합적이다. 우선 가맹본부의 태도를 들 수 있다. 이윤추구에 급급한 채, 동반자적 관계에 있는 가맹점사업자에 대한 이해와 배려가 부족하다. 다른 한편으로는 가맹희망자의 태도를 들 수 있다. 가맹점을 운영하다가 사업이 부진하면 가맹본부의 탓으로 돌리는 경향이 있다. 무슨 사업이든 실패자가 나오기 마련인데 일부 실패한 가맹점사업자의 어려움에 관한 동정적 보도가 국민의 정상적 인식형성을 저해한다. 가맹점사업자의 결과적 사업실패에 경도되어 프랜차이즈의 기본원리를 훼손하는 입법을 추동하기도 한다. 이러한 문제점을 타개하기 위해서는 프랜차이즈와 관련되는 각 계층이 조금씩 인식을 전환할 필요가 있다. 상당수 가맹본부들에게 방만한 행태의 개선이 필요하다. 가맹점사업자들도 독립한 사업자로서의 지위를 인식하고 계약자로서 계약의무를 성실히 이행하려는 자세가 필요하다. 정부당국은 소비자를 위한 경쟁촉진의 방향성을 확립하여야 한다. 국회는 가맹사업법을 선진 프랜차이즈에 대한 국민의 인식수준을 향상시켜야 한다. 보다 근원적으로 현행 헌법에 부지불식간에 삽입되어 우리 사회에 유령처럼 배회하고 있는 경제민주화의 실체에 대한 국민적 이해가 향상되어야 한다. The franchise is a distribution system that facilitates the start-up of prospective franchises, facilitates business expansion of the franchisors, and provides consumers with products and services of proven quality. It is widely used worldwide today. Nevertheless, the evaluation of franchise is not favorable. In this paper, I propose the requirements of the franchisor, franchisee and related organizations to resolve the negative perception of the franchise and to develop the franchise into a healthy distribution industry. What causes the franchise to be a critical object? The primary responsibility is to the franchisors. Unrivaled entrepreneurial spirit leads to profit seeking. There is a lack of understanding and consideration of the commercial business. On the other hand, the franchisees are also responsible. If the business is poor while operating a franchised out, it tends to blame the franchise headquarters. A loser is coming out of any business, but a sympathetic report about the failure of some failed merchant carriers hinders people`s judgment. It may also lead to legislative measures that undermine the basic principles of franchising, which are often hampered by the resulting business failure of franchisees. In order to overcome these problems, it is necessary for each layer related to the franchise to change recognition. Many franchisors need to improve their wanton behavior. The franchisees also need to be aware of their status as an independent business operator and faithfully fulfill their contractual obligations as contracotrs. Govemment authorties should establish the direction of promoting competition for consumers. The National Assemebly shall reorganize the Franchise Business Act into a high quality law in line with the advanced foreign franchise laws. The media should improve public understanding of the reality of economic democratization, which is inserted into the current Constitution in an inrration manner and roaming like a ghost in our society, should be improved.