가맹계약의 해지에 대한 규제와 그 한계

• 영문명: Regulation of Franchise Termination and the Limits Thereon
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 최영홍(Young-Hong Choi)
• 간행물 정보: 『비교사법』比較私法 제14권 제2호, 253~283쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

  Franchising 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.
  Franchising has become generally popular from the late 1960s. As popularity grew so did abuses and perceived abuses. Most particularly, concerns were raised about the degree of control the franchisor excised over the franchisees. Franchisor"s could and did dictate such matters as the franchisee"s choice of location, the appearance of the premises of business, the products sold or used, bookkeeping methods, advertising and sales methods, the qualification and appearance or personnel. Above all else, the franchisor"s power to terminate the franchise is perceived as a power of life or death.
  The extent of control excised by the franchisor over the franchisee has been the subject of considerable regulation. Recognizing the disparity in bargaining power between the franchisor and franchisee and franchisee"s usual making a substantial investment, franchise terminations are restricted by a thicket of laws, inter alia, state statutes limiting causes and requiring prior notice, a right of appeal and buybacks of inventory and equipment purchased from the franchisor.
  Given all the rationales of the restrictions of franchise terminations, Korea Fair Franchise Practices Act(KFPA) regulates them too rigidly. It requires a franchisor sending three-time prior notice and giving at least two months to cure the deficiencies uniformly to terminate the franchise with only a few narrow exceptions. Therefore, KFPA should be amended to lower the degree of restrictions on the franchise terminations as equivalent to those of US state laws, which state by and large that (ⅰ) a franchisor is prohibited from terminating a franchisee without providing thirty days prior notice, as well as identifying the rationale for termination unless the franchisee be in such occasions as being convicted of a crime relating to the franchise, becoming insolvent or bankrupt, default in amounts owed to the franchisor, falsifying records or reports, losing the right to occupying the premises, materially impairing the goodwill associated with the franchisor"s trademarks or the like; (ⅱ) a franchise relationship cannot be terminated unless the franchisor has a good reason for the termination, and if not the case, the franchisor is required to compensate the franchisee for certain assets of the franchised business which are listed in the Administrative Rule under the KFPA.

목차

Ⅰ. 서언
Ⅱ. 일반론에 따른 가맹계약의 해지와 가맹계약의 특성에 따른 규제 필요성
Ⅲ. 가맹계약의 해지에 대한 미국법의 규제
Ⅳ. 우리나라 가맹사업법의 문제점과 개선방안
Ⅴ. 결언
【참고문헌】
【Abstract】

키워드

가맹계약 가맹사업 가맹본부 가맹점사업자 가맹계약의 해지 「가맹사업거래의 공정화에 관한 법률」 Franchise Agreement Franchising Franchisor Franchisee Franchise Termination Fair Franchise Practices Act