가맹사업법상 계약의 존속에 대한 규제

Abstract

The issue of contract termination and renewal is an important matter in determining the parties' interests in the continuity of the contract, and this becomes more important in the so-called 'distribution contracts'. Distribution contracts are not only one-time or short-term, but are retained on a recurring and long-term basis, in which the nature of these continuing contracts forces the parties to be bound here for a long period of time and rely on the trust of the parties to resolve the various problems arising from the contractual relationship. However, in a distribution contract, it is common to see situations in which asymmetry between parties is structured and solidified due to circumstances in which either party is in a dominant market position or controls accessibility to consumers. This is a situation in which autonomous determination, which is the basis for contract freedom, is infringed, and in this case, the law's intervention is required. Special distribution-related laws, such as the Franchise Act, the Large Retail Business Act, and the Agency Act, can be said to limit the freedom to decide whether a contract is retained or not through regulatory laws based on the principle of good faith. The nature of such contracts in the distribution requires that the various issues arising from the contract relationship be treated differently than in the general contract. Much of it may be left to negotiation and agreement between the parties in a contract of equal standing, but in a major distribution contract in which the symmetry of the status is not guaranteed due to structural conditions, 'the objective legitimacy(das objectiv Richtige)' should be achieved through legislation. At present, since the broadest range of regulations is in Franchise Act of Korea, we could take an approach to examine whether the rules on the termination and renewal of contracts can be extended to the Agency Act or the Large Retail Business Act. Of course, the key to this is to have a review based on an understanding of the nature of each transaction. Recently, there has been discussion on introducing regulations related to contract termination and renewal in other distribution-related laws, especially the Agency Act, and a proposed revision to the law has been prepared to reflect them. This is because it has been pointed out that unfair business practices related to the termination or renewal of contracts are taking place in agency transactions. Meanwhile, the Fair Trade Commission's recently announced measures to prevent unfair practices in dealing with agency transactions said that it will set up at least three years of contract renewal requirements in standard agency contracts considering the proper duration of each transaction. While this is not yet set as a legal amendment, it may be possible to try legislative solutions in the future while looking at the improvement in reality. Of course, the provisions concerning contract termination and renewal under the Franchise Act can be a primary reference. However, it should not be missed that a gradual increase in the level of regulation in terms of 'best regulatory levels' would be desirable. In other words, it is necessary to step up to the legal level, starting from a low level, such as the introduction of standard contracts or the preparation of guidelines, with checking the effectiveness of regulations.