국제거래와 대리상제도의 법리

Through this study, I made an inquiry into the commercial agency law of the European Union and the United States of America, which may be designated as a governing law in the international trade involving Korean companies and affect to it. The law of European Union takes the position that a commercial agent is economically week comparing to a principal, but the law of the United States of America is not taking the same view. Korean law is basically the same type of that of the European Union, but it has less provisions in the Commercial Code compared to the law of the European Union. Commercial agency contracts are often used in the international trade. Concluding a commercial agency contract, parties to that contract normally specify the details of that contract as they wish regarding the scope of agent's authority, remuneration, confidentiality, termination and so on. And they designate as a governing law a law or regulation of a certain country to regulate others than what they agree. When choose a governing law, parties consider several factors according to their positions. Normally a party considers which country's law is more favorable. A principal might prefer the law of the United States of America, which protects a principal rather than an agent. A commercial agent might choose the law of European Union as a governing law because this law is more favorable to an agent. Normally a party tends to choose his or her own country's law, but this is not true any more with regard to the commercial agency. Which position a party takes is a decisive factor for choosing a governing law. Now it is common to allow for some amount of restrictions on the principle of autonomy in international business transactions. The leading case is the judgment of the European Court in 2000, Ingmar GB Ltd v. Eaton Leonard Technologies Inc. According to the European Court, Articles 17 and 18 of Directive 86/653 on the coordination of the laws of the Member States are related to self-employed commercial agents, which guarantee that certain rights to commercial agents after the termination of agency contracts, and that those rights must be applied where the commercial agent carried out his activity in a Member State although the principal is established in a non-member country and a clause of the contract stipulates that the contract is to be governed by the law of that country. Articles 17 through 19 of the Directive are mandatory in nature according to the European Court. It is advisable for the Korean Commercial Code to follow this approach and to specify a mandatory application of the right to indemnity of a commercial agent after the termination of commercial agency contracts. The Korean Commercial Code, which has only 8 provisions regarding commercial agencies, allows a great amount of autonomy to contracting parties in this area. This could have the negative effect of failing to protect the commercial agent, who is deemed to be economically weak. The European Union limits improper use of autonomy through Directive 86/653. Korean law could learn from such a law. It might be advisable for the Korean Commercial Code to follow this approach and to specify mandatory application of the right to indemnity of a commercial agent after the termination of commercial agency contracts or to declare this through case law. This will provide protection to Korean companies doing business as commercial agents in Korean markets for foreign companies. Also, it is necessary to clarify the legal relations regarding the commercial agency through fixing the current commercial agency law system.