국제프랜차이즈계약에서의 국내 가맹점사업자 보호와소송상 준거법

초록

The range of the franchise contract is beyond the border. The Korea-based franchisors are running outbound business and many foreign franchisors have lots of franchisees in Korea. In these cases, there are ‘international’ factors so that these could be called ‘international franchise contracts.’ In this regard, it should be determined which law would be the governing law in the litigation on the international franchise contract. In Korea, it is the matter of the ‘International Private Act’, which declares ‘Principle of the Party Autonomy’ regarding the governing law, still there are some exceptions where the other law than what the parties agreed is able to be applied. In this article, the cases when domestic franchisees contract with foreign franchisors are examined. When the parties agree that the Korean law would be the governing law, the Commercial Code, the General Clause Regulation Act, and the Fair Franchise Transactions Act etc. would apply. Meanwhile, in the cases that not Korean law but foreign law is agreed as the governing law, Korean law could not regulate those international franchise contracts in principle. But there are some ways that Korean law could deal with even those cases, so that we have to look over those matters. At first, the provisions in the General Clause Regulation Act, and the Fair Franchise Transactions Act are generally not internationally overriding mandatory provisons. But there are open to question as to some of the Fair Franchise Transactions Act when scrutinized in the specific cases. Secondly, it is hard to say that the agreement on the governing law itself is against the public order and good morals. Moreover, generally speaking, international franchise relationship could not be regarded as the consumer or labor relationship. In the absence of any valid express or implied choice by the parties, the proper law of a contract is determined by the decision of which law has the most closest connection. In the specific cases, various decisions would be made by the principle so that the conclusion deducted by Korean law would be different from one by Rome I Regulation.

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