가맹점사업자단체에게 단체교섭권, 가맹사업일시정지권(집단휴업권)을 부여하는 입법안의 위헌성에 대하여

Abstract

This study examines the issues regarding legislative proposals to grant collective bargaining rights, the right to temporarily pause franchise business, and collective temporary closure rights to the Franchisees' Association. Collective bargaining rights referred to above are almost the same as the collective bargaining rights recognized by the Workers' Association, and right to temporarily pause franchise business and collective temporary closure rights are similar to the right to collective action. The logic of the above legislation is that problems arising in the franchise business sector can be solved through strengthening the status of the Franchisees' Association. To this end, franchisees or the Franchisees' Association should be entitled to the same rights as workers or the Workers' Association. However, in addition to being fundamentally flawed in that it treats franchisees, who are not workers but business owners, the same as workers, the above legislation violates the constitutional fundamental rights of franchisors (individuals and corporations) and is unconstitutional as it contradicts the principle of equality. In this paper, firstly, the constitutional rights that franchisees or the Franchisees' Association can have were examined based on the status of constitutional freedom for associations and the contents thereof, as well as the Three Rights of Workers. Secondly, the fact is indicated through comparison with other areas in which unfair trade is problematic (general fair trade, subcontracting, dealerships), that above-mentioned legislation contradicts the principle of equality and violates the freedom of business operation, general freedom of action (contractual freedom), and property rights of franchisors. The disputes arising in the franchise business sector are not due to the bargaining power or inferior status of franchisees, but due to asymmetery of information or lack of knowledge regarding the establishment of franchisees, and because the stipulations set forth in the current Franchise Business Act are sufficient to solve such problems, it seems that activation of the current system, not introduction of new legislation, would be the proper solution to the problems.