대리상의 보상청구권의 유추적용 여부 - 대법원 2013.2.14. 선고 2011다28342 판결에 대한 평석 = Is the Commercial Code Article 92-2 Applied to Other Types of Commercial Intermediaries by Way of Analogy? - A Comment on the Supreme Court’s Judgment of 2011da28342 (2013)

다국어 초록 (Multilingual Abstract)

Since article 92-2 was added to the Korean Commercial Code in 1995,lower courts’ judgments pertaining to the entitlement of indemnity of a commercial agent (hereinafter, referred to as “the Entitlement Provision”),setting aside theoretical disparities, have been almost all fall in line that the Entitlement Provision should not be applied by analogy to the other types of self-employed commercial intermediaries such as commission agents,distributors, franchisees, or the like (hereinafter collectively referred to as “Authorized Distributors”). In the meantime the Supreme Court held on 14February, 2013 that the Entitlement Provision could be applied to Authorized Distributors if the following requirements are met: Authorized Distributors have become so integrated in the marketing organization of the manufacturers that their rights and duties resemble those of commercial agents; Authorized Distributors are required contractually to turn their customers over to the manufacturers at the time their relationship comes to an end and the manufacturers are immediately able to make use of the customer accounts to their own business advantage should they so desire;and Authorized Distributors are worth being protected like commercial agents in many respects.
Even though the interests of Authorized Distributors and commercial agents might be similar, Authorized Distributors buy and resell goods in their own name and on their own account, which differentiate them from the commercial agents doing in principal’s name and on principal’s account.
The activities pursued by persons acting on behalf of a third party but in their own name is likewise different from those pursued by commercial agents. As the European Court of Justice and the German Government rightly observed, the interests and the need for protection of the occupations of commission agents and commercial agents are not the same.
Because the primary function of commercial law is to accommodate the legitimate practices and expectations of the business community in relation to their commercial dealings, and because businessman should be free to make their own law, there is no need to support by analogy the commercial entities that are readily deemed sophisticated in perceiving their interests. Although the Supreme Court seemingly takes the theory of analogous application of the Entitlement Provision, the effect of the judgment is quite the opposite as a matter of fact. Given the scarcity of meeting those requirements in all, the party to a distribution contract can hardly be supported in reality. The business world attaches high importance to the predictability of judicial decisions on legal issues. The goal of the construction of the law is to find out the concrete fairness if, and to the extent that, the legal stability is not derogated. The Supreme Court had better quit the analogous application theory which gives ambiguous signals to the business world in vain.

참고문헌 (Reference)

1 이기수, "제4판국제거래법" 세창출판사 2010

2 윤남순, "유럽聯合의 代理商法" 7 (7): 1998

3 윤남순, "상인자격의 흠결과 대리상계약" 한국상사판례학회 20 (20): 717-738, 2007

4 최기원, "상법학신론(상)" 박영사 2009

5 이철송, "상법총칙 상행위(제11판)" 박영사 2012

6 김정호, "상법강의(상), 제 4 판" 法文社 2005

7 서헌제, "상법강의(상)" 법문사 2007

8 정찬형, "상법강의(上)" 박영사 2010

9 손주찬, "상법(상)" 2002

10 최영홍, "딜러계약의 법리" 한국경영법률학회 22 (22): 147-180, 2012

11 박준우, "대리상의 보상청구권과 영업비밀준수의무-상법 제92조의2 및 3에 대한법경제학적 분석" 21 (21): 2002

12 김정호, "대리상의 보상청구권, 상사법의 이론과 실제, In 석영 안동섭 교수 화갑기념 논문집" 1995

13 정동윤, "대리상의 보상청구권, In 상사법 논총, 제남 강휘두 박사 화갑기념 논문집(상)" 1996

14 최영홍, "대리상의 보상청구권 규정의 법적 성질과 다른 중간상에의 확대 적용 여부" 안암법학회 (36) : 575-607, 2011

15 최영홍, "대규모유통업법의 제정과 운용상 쟁점" 한국경쟁법학회 25 : 3-36, 2012

16 정홍식, "국제대리상계약 상의 주요 법률쟁점 -ICC 모델 대리상계약서를 중심으로-" 한국상사법학회 30 (30): 207-240, 2011

17 윤남순, "국제거래와 대리상제도의 법리" 한국경영법률학회 20 (20): 427-457, 2010

18 윤남순, "국제거래와 대리상의 보호" 한국경영법률학회 17 (17): 97-128, 2006

19 석광현, "국제거래에서의 대리상의 보호 - 상법 제92조의2의 적용범위와 관련하여-" 법조협회 55 (55): 19-65, 2006

20 尹南順, "代理商에 관한 유럽共同體法 硏究 : 英國·프랑스·獨逸의 立法을 中心으로" 高麗大學校 大學院 1997

21 Roy Goode, "Transnational Commercial Law" Oxford University Press 2007

22 Gerald McMeel, "The Construction of Contracts" Oxford 2011

23 American Law Institute, "Restatement of The Law Third, Agency" American Law Institute Publishers 2007

24 Ralph H. Folsom, "Principles of International Business Transactions, Trade & Ecocomic Relations" Concise Hornbooks Thomson 2005

25 Study Group on a European Civil Code, "Principles of European Law Commercial Agency, Franchise and Distribution Contracts(PEL CAFDC)" Oxford University Press 2006

26 John Fairhurst, "Law of the European Union" Pearson Education Ltd. 2006

27 Michael Wendler, "Key Aspects of German Business Law" Springer 2006

28 Catherine Mitchell, "Interpretation of Contracts" Routledge 2007

29 "ICC Model Distributorship Contract, Pub. No. 646"

30 "ICC Model Commercial Agency Contract, Publication No.644"

31 Philip F. Zeidman, "Getting The Deal Through Franchise 2013" Law Business Research Ltd. 2012

32 Elspeth Deards, "European Union Law" Oxford 2004

33 박덕영, "EU법 강의" 박영사 2010

34 Joanna Goyder, "EU Distribution Law" Hart Publishing 2011

35 Fabio Bortolotti, "Drafting and Negotiating International Commercial Contracts" ICC Service Publications 2008

36 Ernst & Young, "Distribution Law in Europe"

37 윤남순, "Commission Agent의 법리" 한국상사판례학회 19 (19): 73-106, 2006

38 LS Sealy, "Commercial Law" Oxford University Press 2009

39 Francis Rose, "Commercial & Consumer Law 2009-2010" Oxford University Press 2009

40 William A. Klein, "Business Associations – Agency, Partnerships, LLCs, and Corporations - 2010 Statutes and Rules" Foundation Press 2010

41 Daniel S. Kleinberger, "Agency, Partnerships, and LLCs" Wolters Kluwer 2008