대리점 계약의 종료와 보상청구권의 인정 여부 - 대상판결: 대법원 2013. 2. 14. 선고 2011다28342 판결 -

Abstract

Upon termination of a long-term distributorship, the agreement itself will become ineffective in the future. However, the relation between the contracting parties, built up over the course of their transaction history could remain after termination. For this reason, Article 92-2 of Korean Commercial Code provides a commercial agent’s right to claim indemnity if the agent obtained new customers, or increased business substantially for the supplier through the agent’s activities for which the supplier receives profits even after the contract is terminated. Whether this provision could be applied by analogy to other types of distribution agreements, however, remains controversial. On this point, the Korean Supreme Court has held on February 14, 2013 (2011da28342) that such provisions could be analogically applied to other distribution agreements under certain conditions. In light of distinct characteristics of each type of distribution agreement, it would not be appropriate if the indemnity right of a commercial agent is applied across the board to other distributors. However, in the case where a distributor was highly dependent on the supplier or its products like a commercial agent, and the supplier will acquire the fruit of the distributor’s labor after termination, it would be fair and equitable to grant the indemnity right to the distributor, but only to a limited extent. More specifically, the Korean Supreme Court decision suggested the following requirements before applying such analogy: (i) the distributor actually has become so integrated in the marketing organization of the supplier that it has played a similar role to a commercial agent’s; (ii) the distributor is obliged to transfer the relationship with customers under the contract so that the supplier can use it right after the termination; and (iii) from the totality of circumstances, it is required to protect the distributor like a commercial agent. In a specific case, these requirements should be reviewed from the viewpoints whether the distributor has an affinity with a commercial agent in substance, and whether it would be possible for the supplier to acquire the legacy of the contract relationship even after the termination of the agreement,and also whether it is worth protecting the distributor upon the termination.