프랜차이즈 관련 상법 개정안의 고찰

Abstract

The Draft of Commercial Law Revision on the parts of General Provisions and Commercial Transactions(hereinafter "Draft"), which was prepared elaborately by the Special Committee established in Ministry of Justice, has been submitted to Legislation and Judiciary Committee of the National Assembly at last. The Draft includes, inter alia, Chapter 13(Franchising) of Part 2(Commercial Transactions) of the Commercial Code. Franchising is a method of expanding a business and delivering goods and services. It has enabled a large number of companies to achieve national and even international trademark and trade name recognition within a short time and with little outlay of their own capital. At the same time, it has enabled innumerable individuals with little capital to achieve independent businessman status under the guidance of an experienced company and backed by the reputation of a well-known product or trade name. Nowadays it is easy to see the franchised outlets in our surroundings. But, there has been no provisions related to franchising in the current Commercial Code except for the Section 46(20) which states "the legal behavior pertaining to the business carried by licensing of trade name, trademark and the like". In other words, the relationship of the parties to the franchise agreement is governed almost entirely by the freedom of contract and adhesion contract. In this context, I heartedly welcome the Draft which enables the Code to keep abreast of the changing climates ofdistribution and franchising in reality both domestic and abroad. This does not mean, however, that there is no flaws in the Draft. Much more still remains to be reviewed. On revising the Commercial Code, we should consider its high status and dignity as one of our six basic laws in general and reflect franchise relationship as sui generis in particular as well. Therefore, I propose that some of the wordings of the Draft should be either amended or re-written more or less to fit the franchise context more plausibly, that Section 186-10 of the Draft and Subsection 41(1) of the Code pertaining respectively to termination and non-competition should be deleted, and that a clause excluding the liability of the franchisor as the title-lender should be supplemented in the Code to be revised.