프랜차이즈利用者의 行爲에 의한 提供者의 責任에 관한 硏究

Abstract

A franchise is a business model created by someone or a team of people, called the franchisor, that grants the right to the franchisee to sell the business model’s proven or well-recognized goods or services under a pre-defined set of terms and conditions, also known as a “system.” The relationship between a franchisor and franchisee is held together by a contract called the Franchise Agreement which outlines the privileges, terms, conditions, restrictions and other details of the system. Franchise System is one of the contractual vertical marketing system in which independent firms at different channel levels integrate their programs on a contractual basis to achieve systematic economies and increased market impact. Generally, franchise systems may be grouped into a few types. First, Manufacturer sponsored Retailer Franchise System such as automobile, truck dealerships, gas station dealerships, second, manufacturer sponsored wholesaler Franchise System, soft drink manufacturers (franchise independent bottlers), third, service firm sponsored Retailer Franchise System; fast-food restaurants, hotels and motels, auto rentals. Franchising, in its modern form, was begun in the United States about 1900. The franchise industry in the U.S. began accelerated growth in the 1950's. Korea introduced the Franchise system in twenty five years ago. The franchise system in our country came into being when we introduced Fast Food Restaurants from Japan in 1979. Franchise industry has now become a significant part in Korean industry. The problem relating to Franchise system is whether court is able to impose liability to the franchisor for damages caused by franchisees or not. This study focus on, if it is possible, what the reason is. First we think, it is traditional respondeat superior theory, that of vicarious liability for franchisors through the principles of agency rule. Court is able to apply vicarious liability rule to the franchisor when franchisees are apparent agents. Second, Under certain circumstances such as the injury caused by a defective product, strict liability concepts, such as breach of warranty and strict liability in torts, a franchisor may be held to have breached a duty of care owed to the consumer, thus making the franchisor directly liable for its own negligence. "Direct" liability of franchisors, whether via franchisor negligence, breach of warranty, strict liability, fraud, or some other theory of recovery, is based on the franchisor's own acts or omissions. Often, claims of direct liability may be combined with vicarious liability theories of recovery based on an alleged agency between franchisor and franchisee. Vicarious liability, reputedly the most common tort theory of recovery against franchisors, arises from actual agency or apparent agency. While the franchise relationship ordinarily is not considered to be an agency, In one frequently franchised industry--gasoline stations--there are numerous examples of courts finding or permitting juries to find an agency relationship, hence vicarious liability for the would-be franchisor. Franchisor vicarious liability may be justified as a method of spreading both risk and actual losses. Franchisors can better distribute the loss liability or liability insurance because of their superior bargaining position. Franchisor controls relate most directly to a third justification of franchisor liability: prevention of loss. In effect, this rationale rests upon the same two public policy precepts undergirding the actual agency principle of respondeat superior. First, the franchisor is in a good position to select responsible franchisees and to ensure that they exercise a high degree of care when dealing with their customers. Second, the imposition of vicarious liability encourages the franchisor to maintain as high a standard as possible during its selection and supervising processes.