경업금지특약의 유효요건 － 미국 가맹계약을 중심으로 －
Requirements for the enforceability of covenant not to compete ancillary to franchise agreement
0
조회
0
다운로드
6
인용
0
참고문헌
키워드
초록
Covenant not to compete(hereinafter “COVENANT”) is a promise not to engage in the same type of business for a stated time in the same market between the parties to the contract. COVENANTs are to some degree agreements in restraint of trade. Restrictive covenants could, however, encourage efficiency and preserve the freedom to contract. It is generally recognized that the test of reasonableness for an anticompetitive covenant ancillary to an employment contract is somewhat more strict than the criterion necessary for enforcement of such covenants ancillary to the sale of a business. A COVENANT incident to a franchise agreement has elements of both employment and sale of business contracts, but does not fit neatly into either category. Franchise cases have struggled to reconcile the franchise relationship with either of the sale of a business or an employment agreement. Courts generally enforce COVENANTs for the duration of the business relationship(in-term covenants), but provisions that extend beyond the termination of that relationship(ex-term covenants) must be resonable in scope, time, and territory. In general, an enforceable COVENANT in a franchise context must satisfy four requirements: (1) Lawfulness of the principal agreement (2) Franchisor’s legitimate interests (3) Reasonableness of the restrictions and (4) Public interest. Many US courts, when confronted with a COVENANT that otherwise would be unenforceable, apply the so-called “blue pencil” rule or partial enforcement approach, and modify the covenant by paring it down to what is considered reasonable. So does the Korea Supreme Court. The modifications that are made relate to scope, time and geography, and are acceptable if they do not effectively rewrite the contract. With the emergence of franchising in our distribution sector, we should reconsider the properness of Korea Commercial Code Sec. 41.1, which reads “when a person has transferred his/her business, he/she shall neither, for a period of ten(10) years, carry on the same kind of business in the same or adjacent (---region), unless the parties have made any specific agreement”. We confront contraction in construing the COVENANT ancillary to sale-of-business including franchise. To get rid of it, Sec. 41.1 should be deleted from the Code.
Abstract
Covenant not to compete(hereinafter “COVENANT”) is a promise not to engage in the same type of business for a stated time in the same market between the parties to the contract. COVENANTs are to some degree agreements in restraint of trade. Restrictive covenants could, however, encourage efficiency and preserve the freedom to contract. It is generally recognized that the test of reasonableness for an anticompetitive covenant ancillary to an employment contract is somewhat more strict than the criterion necessary for enforcement of such covenants ancillary to the sale of a business. A COVENANT incident to a franchise agreement has elements of both employment and sale of business contracts, but does not fit neatly into either category. Franchise cases have struggled to reconcile the franchise relationship with either of the sale of a business or an employment agreement. Courts generally enforce COVENANTs for the duration of the business relationship(in-term covenants), but provisions that extend beyond the termination of that relationship(ex-term covenants) must be resonable in scope, time, and territory. In general, an enforceable COVENANT in a franchise context must satisfy four requirements: (1) Lawfulness of the principal agreement (2) Franchisor’s legitimate interests (3) Reasonableness of the restrictions and (4) Public interest. Many US courts, when confronted with a COVENANT that otherwise would be unenforceable, apply the so-called “blue pencil” rule or partial enforcement approach, and modify the covenant by paring it down to what is considered reasonable. So does the Korea Supreme Court. The modifications that are made relate to scope, time and geography, and are acceptable if they do not effectively rewrite the contract. With the emergence of franchising in our distribution sector, we should reconsider the properness of Korea Commercial Code Sec. 41.1, which reads “when a person has transferred his/her business, he/she shall neither, for a period of ten(10) years, carry on the same kind of business in the same or adjacent (---region), unless the parties have made any specific agreement”. We confront contraction in construing the COVENANT ancillary to sale-of-business including franchise. To get rid of it, Sec. 41.1 should be deleted from the Code.
참고문헌 (25)
- 신권철, "근로자의 경업금지의무", 노동법연구, 18 (2005), 서울대학교 노동법연구회
- 이재용, "營業秘密의 保護와 退職 勤勞者의 競業禁止義務 - ‘競業禁止約定’과 不正競爭防止法에 의한 轉職禁止請求 등에 관한 判例 理論을 中心으로 -", 법학연구, 15(4), pp.115~144 (2005), 법학연구원
- 정병덕, "영업양도에 관한 연구", 박사, pp.2006
- 최영홍, "가맹계약의 해지에 대한 규제와 그 한계", 비교사법, 14(2) (2007)
- "2 Franch and Distr Law and Prac, Covenants Not to Compete ㎣ 8:52 - 59", ~ (2007)
- "4A Am. Jur. Legal Forms 2d, Business Franchises ㎣ 50: 228 - 231", ~ (2007)
- "54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices ㎣ 976 - 982", ~ (2008)
- "62B Am. Jur. 2d, Private Franchise Contracts ㎣ 207 - 212", ~ (2008)
- Brazener, Robert A., "“Validity and Construction of Restrictive Covenant Not to Compete Ancillary to Franchise Agreement”, 50 A. L. R. 3d 746", ~ (1973)
- Cahn, David L., "Post-Expiration Covenants Not to Compete: Grant Limited ‘Free Agency’ to Franchisees”, 8 NO. 5 LJN’s Franchising Business and Law Alert 4", ~ (2002)
- Corrigan, William M, "“Non-Compete Agreements and Unfair Competition - An Updated Overview”, 62 J. Mo. B. 81", ~ (2006)
- Dougherty, Francis M., "“Enforceability of Sale-of-Agreement Not to Compete Against Nonsigner or Nonowning Signer”, 60 A. L. R. 4th 294", ~ (1988)
- Emerson, Robert W., "“Franchising Covenants Against Competition”, 80 Iowa L. Rev. 1049", ~ (1995)
- Gray, Michael R., "Covenants Not to Compete and Nonsignatories: Enjoining Unfair Conspiracies, 25-WTR Franchise L.J. 107", ~ (2006)
- Ingram, John Dwight, "Covenants Not to Compete, 36 Akron L. Rev. 49" (2002)
- Johnson, Richard E, "Achieving “Victory through Prearrangements”: Supplementing Covenants Not to Compete, 22- SUM Franchise L.J. 21" (2002)
- Lagarias, Peter C., "The Arguments For and Against Including Noncompete Clauses, 5 NO. 8 Leader’s Franchising Bus. & L. Alert 3" (1999)
- LaCroix, M. Steven, "Covenants against Competition in Franchise Agreements, 13-FALL Franchise L.J. 48", ~ (1993)
- Lord, Richard A., "Bargains and Contracts in Restraint of Trade, 6 Williston on Contracts (4th ed.)" (2007)
- McGuire, Raymond G., "The Labour Law Aspect of Franchising, 8 Boston College Industry and Commercial L. Rev. 215" (1971)
- Morton, Susan H., "Termination for Breach of In-Term Covenant & One-year Limit Upheld, 7 NO. 11 LJN’s Franchising Bus. & L. Alert 9" (2001)
- Rosenfield, Coleman R., "Franchise Litigation, 21 Am. Jur. Trials 453", ~ (2007)
- Soller, Christopher J., "Time Period and Geographic Restrictions in Non-Compete Agreements: Understanding and Winning the Battle over Reasonableness, 74 Pa. B.A. Q. 52", ~ (2003)
- Wald, Russell L., "Employment and Business-Sale Relationship Distinguished, 20 Am. Jur. Proof of Facts 3d 705 § 1.3" (2008)
- Yalung, Catherine Bergin, "Redefining the Blue Pencil Rule: Phoenix Orthopaedic Surgeons, Ltd. v. Peairs, 23 Ariz. St. L.J. 859" (1991)