가맹계약 종료후의 경업금지의무

Abstract

Franchise business transaction is a continuous business relationship in which the franchisor supports and trains the franchisee and receives franchise fee for payment in order to sell their products(goods) and services effectively. There is possibility of growth for both the franchisor and the franchisee through this relationship because the franchisor is provided with funds and workforce that had been lacking and the franchisee gets to use the franchise brand image and is able to learn business know-how. Franchise business transaction showed rapid growth in a short period of time and holds a significant portion in the market within United States, where franchising was first introduced, and in Korea as well. Such circumstances are due to the fact that franchising is highly advantageous in forming nationwide distribution network with relatively low cost and short time. The franchise agreement that lays the foundation of franchise business transaction is a continuous contract based on trust between the franchisor and the franchisee and the franchisor supplies the franchisee with their inner information including trade secrets and know-how. Therefore, the franchisee's misuse of confidential information or the act of doing same or similar business with that of the franchisor fundamentally destroys the trust between the franchisor and the franchisee. Generally, provisions about the franchisee's duty not to engage in competitive business or duty of confidentiality are provided to prevent the franchisee from engaging in competitive business or divulging trade secrets in the course of agreeing on the franchise agreement. However, imposing the duty not to engage in competitive business restricts the franchisee's freedom to choose an occupation or freedom of running a business. Furthermore, there is a possibility that the duty may impede fair trade. The franchisor and the franchisee often face conflict of interest owing to such limitations following the duty. This paper deals with the duty not to engage in competitive business after the franchise agreement termination in accordance with situations mentioned above. After examining the significance of the duty, the legal system and court cases regarding franchising in the United States and the judgement structure of the duty will be considered.