다단계판매에 관한 연구

Abstract

Ⅰ. Door-to-Door Sales, etc. Act(hereafter 'DdsAct') has a structure of three character. One is character as a special law of civil law, another is of criminal law, the other is of administration law. That is, DdsAct has three function each every law. This study principally is related to the legal interpretation of civil law and a function of DdsAct, partially to the other territory, criminal law and administrative legal system. DdsAct has many problems a waiting solution in sphere of legal interpretation and legislation. A problem is a harmonious interpretation between DdsAct and civil law. DdsAct as a trade act should be interpreted impartially without leaning toward one contract party. Besides it has many question of legal interpretation. definition of Multilevel Marketing(hereafter ‘Mlm’)(DdsAct § 2. 5), difference between Mlm and Door-to-Door Sales(hereafter ‘Dds’), cooling off(withdrawal), effect of withdrawal, etc. The most important point of problems is the definition of Mlm. If a sales contract for Goods, etc is classified as a Mlm. DdsAct regulates the Mlm in many respect. The regulation would be matters related to contract parties, registration system of Mlm, contents of contract, specially price limit of Goods, etc, on the contrary Dds required reporting system. DdsAct regulates strictly a person who establishes, manages or operates a Mlm-organization without registration. The person who violates provision required registration, may be applied to imprisonment and fine penalties together(DdsAct § 51). Therefore an exact legal meaning of the definition provision on the Mlm(DdsAct § 2.5) is very important. DdsAct Article § 2 Definitions is as follows. Article § 2, 5. “Mlm” means the practice of selling Goods, etc. through a multi-layered sales organization(including two-layered organizations specified by a presidential decree that are practically managed and operated as three or more layers) in which the seller recruits people as sales agents of a Multilevel network(forming three or more levels) by an inducement with that they can receive income(including profits from retailing Goods, etc. to consumers and Commission paid to the seller by the Mlm-Business-Operator; the same shall apply hereinafter) from engaging in the following activities. a. selling products supplied by the Mlm-Business-Operator directly to consumers b. recruiting some or all of the consumers mentioned in subparagraph (a) as sales agents directly below the initial seller’'s level who then engage in the same activities as the initial seller. The contents of this provision is not only complicatedly composed , but the detail contents of the provision spreads as far as president decree and prime minister decree. Since a tiresome long composition of provision can't be interpreted precisely, A function as a criminal law can't be expected. It means violation against the principle of “nulla poena sine lege”.

Ⅱ. This study divides contents of dissertation into six chapter to solve these problems on the legal interpretation and legislation. Chap.1. introduction Chap.2. on the definition of Mlm and legal relation of mutual parties. Chap.3. on the comparative study with legal systems of U.S.A., Deutschland, Japan. Korea. Chap.4. on the interpretation of DdsAct. Chap.5. on the problems and the improvement of DdsAct. Chap.6. Conclusion.

Ⅲ. Emphases : (1) In my opinion the distinction standard between Mlm and Dds in our current legal system is unreasonable. we can't fined out division line easily in two methode of marketing. we don't think that ‘3 Layered or 2 Layered’-organization is a difference of essential qualities. we can say the same about the inducement because a somewhat allurement can be doing generally in another usual trade. Still more, on the commission, distinction of the volume of Goods, etc. sold by the direct lower line or by all lower line than tow-line-marketing-agents under his/her supervision is not essential. we dare to assert that Size of commission is an essential element because fairness of commission becomes a key that controls speculation of Mlm. (2) Mlm has a legal essential character, what is called, confrontation of mutual duties of both parties, that is, ‘Sales’ of multilevel marketer and ‘commission’ of Mlm-Business-Operator. Legal nature of Mlm can be defined as a contract with mutual duties. we dare to conclude a Definition on Mlm as follows. Mlm is a contract which Mlm-Business-operator(or Multilevel-marketer) is under an obligation to pay commission to Multilevel-marketer(or the Purchasing Party) engaging in the following activities. The Commission must be fair. The Criteria of commission fairness is decided with considering several circumstances. a. selling products supplied by the Mlm-Business-Operator directly to consumers b. recruiting some or all of the consumers mentioned in subparagraph (a) as sales agents directly below the initial seller’s level who then engage in the same activities as the initial seller. (3) A blind point of registration system in DdsAct has not only effaced existence purpose of the system, but price limit of selling goods(130 ten thousand won) would be an increase cause of ‘new’ Dds. we think that mitigation of registration, in addition abolition of price limit of trade goods would be a device which solves illegality of ‘new’ Dds.