가맹업자의 제3자에 대한 대위책임

Abstract

Apart from the name-lender's liability, a franchisor may be potentially liable for injuries arising from the operations of a franchisee under a variety of legal theories. These include not only so-called direct liability based on the franchisor's own tortious conduct and the tortious conduct of the franchisor's own immediate employees, but also, under certain circumstances, vicarious liability for the tortious conduct of its franchisees and persons employed by the franchisees. Vicarious liability is liability for the tort of another person. As such, vicarious liability represents an important exception to the usual parameters of the tort liability system that makes the tortfeasor alone responsible for his torts. It is akin to the Employer's Liability under the Section 756 of the Korea Civil Code. Vicarious liability in general has three core require- ments. First, there must be a legally sufficient relationship between the person causing the plaintiff's injury and the vicariously liable defendant. Second, the person causing the plaintiff's injury must act tortiously. And finally, the tortious conduct by the tortfeasor must have occurred within the scope of that legally sufficient relationship with the vicariously liable defendant. Once those requirements are all met, Korean courts have held the employer is liable for the tortious conduct by the employee within the scope of employment without any exception even in the principal-independent contractor contexts. Given that vicarious liability is a severe exception to the basic principle that one is only responsible for his or her own acts, and that the role of franchising in Korea and the world economies is bigger and bigger, we should proceed with caution to impose vicarious liability on a franchisor with bright-lined law. Recommendable is the flexible approach to make the franchisor not liable for the franchisee's conduct otherwise be the case under an independent contractor rationale in Korea. The approach is preconditioned that the franchisor must have taken reasonable steps to require that notice be prominently displayed by its franchisees clearly indicating that the franchised units are owned and operated by independent franchise entities.