경업금지특약의 유효요건 － 미국 가맹계약을 중심으로 －
Requirements for the enforceability of covenant not to compete ancillary to franchise agreement
최영홍(고려대학교)
27권 1호, 123~154쪽
초록
Covenant not to compete(hereinafter “COVENANT”) is a promise not to engage in the same type of business for a stated time in the same market between the parties to the contract. COVENANTs are to some degree agreements in restraint of trade. Restrictive covenants could, however, encourage efficiency and preserve the freedom to contract. It is generally recognized that the test of reasonableness for an anticompetitive covenant ancillary to an employment contract is somewhat more strict than the criterion necessary for enforcement of such covenants ancillary to the sale of a business. A COVENANT incident to a franchise agreement has elements of both employment and sale of business contracts, but does not fit neatly into either category. Franchise cases have struggled to reconcile the franchise relationship with either of the sale of a business or an employment agreement. Courts generally enforce COVENANTs for the duration of the business relationship(in-term covenants), but provisions that extend beyond the termination of that relationship(ex-term covenants) must be resonable in scope, time, and territory. In general, an enforceable COVENANT in a franchise context must satisfy four requirements: (1) Lawfulness of the principal agreement (2) Franchisor’s legitimate interests (3) Reasonableness of the restrictions and (4) Public interest. Many US courts, when confronted with a COVENANT that otherwise would be unenforceable, apply the so-called “blue pencil” rule or partial enforcement approach, and modify the covenant by paring it down to what is considered reasonable. So does the Korea Supreme Court. The modifications that are made relate to scope, time and geography, and are acceptable if they do not effectively rewrite the contract. With the emergence of franchising in our distribution sector, we should reconsider the properness of Korea Commercial Code Sec. 41.1, which reads “when a person has transferred his/her business, he/she shall neither, for a period of ten(10) years, carry on the same kind of business in the same or adjacent (---region), unless the parties have made any specific agreement”. We confront contraction in construing the COVENANT ancillary to sale-of-business including franchise. To get rid of it, Sec. 41.1 should be deleted from the Code.
Abstract
Covenant not to compete(hereinafter “COVENANT”) is a promise not to engage in the same type of business for a stated time in the same market between the parties to the contract. COVENANTs are to some degree agreements in restraint of trade. Restrictive covenants could, however, encourage efficiency and preserve the freedom to contract. It is generally recognized that the test of reasonableness for an anticompetitive covenant ancillary to an employment contract is somewhat more strict than the criterion necessary for enforcement of such covenants ancillary to the sale of a business. A COVENANT incident to a franchise agreement has elements of both employment and sale of business contracts, but does not fit neatly into either category. Franchise cases have struggled to reconcile the franchise relationship with either of the sale of a business or an employment agreement. Courts generally enforce COVENANTs for the duration of the business relationship(in-term covenants), but provisions that extend beyond the termination of that relationship(ex-term covenants) must be resonable in scope, time, and territory. In general, an enforceable COVENANT in a franchise context must satisfy four requirements: (1) Lawfulness of the principal agreement (2) Franchisor’s legitimate interests (3) Reasonableness of the restrictions and (4) Public interest. Many US courts, when confronted with a COVENANT that otherwise would be unenforceable, apply the so-called “blue pencil” rule or partial enforcement approach, and modify the covenant by paring it down to what is considered reasonable. So does the Korea Supreme Court. The modifications that are made relate to scope, time and geography, and are acceptable if they do not effectively rewrite the contract. With the emergence of franchising in our distribution sector, we should reconsider the properness of Korea Commercial Code Sec. 41.1, which reads “when a person has transferred his/her business, he/she shall neither, for a period of ten(10) years, carry on the same kind of business in the same or adjacent (---region), unless the parties have made any specific agreement”. We confront contraction in construing the COVENANT ancillary to sale-of-business including franchise. To get rid of it, Sec. 41.1 should be deleted from the Code.
- 발행기관:
- 한국상사법학회
- 분류:
- 법학