대리상의 보상청구권의 유추적용 여부 - 대법원 2013.2.14. 선고 2011다28342 판결에 대한 평석

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.