가맹사업거래에 있어서 경업금지 약정

Even though franchising has earn an important position over our business entity and has a crucial influence on our lives these days, we have not yet established a law applicable to the franchising. So the franchise contract carry out an important role towards the managing the franchising business Once, the franchisor made a contract with the franchisee, the franchisor has to provides the franchisee with the trade secret and know-how, on the other hand, the franchisor is apprehensive that franchisee may keep using the trade secret without permission and that franchisee may compete with him in misusing his trade secret after termination of the contract. The franchisor requires the franchisee to put non-competition covenant in the franchise contract in order to get away from the anxiety. Though, the franchisee can not but accept the covenant in order to conclude the contract. Even if this covenant is a contract not to carry on the same kind of business the franchisor is running, it has been acceptable in the name of the freedom of contract. However, this covenant must be reviewed from the fairness or reasonableness because it can be an obstacles to free competition in trade as well as to public policy. In this context, the non-competition covenant in the franchise contract is admissible if it meets 3 fairness test : (1) Fairness in business type, (2) Fairness in time period, (3) Fairness in place Fairness in business type depends upon how the franchisee’s business is alike to the franchisor’s business in type, framework, size. Although the contractually prescribed time period ranging from 6 months to 3 years has been upheld by many U. S. court, no guideline has been made by Korean court yet. We should take the individual screening approach deciding whether the time period is fair or not. As a general rule, the restriction to place depends on the franchised business premise, but the covenant based on anticipated expansion is not admissible. The unfair covenant is void, but the void covenant makes the franchise contract nullified. When the covenant is partially unfair, we can adopt blue pencil rule by denying enforcement of the unfair part in the covenant, while allowing enforcement of the remaining part. Korea supreme court makes a step forward and allows court to modify the covenant and enforce them to modified. When the covenant is valid, the franchisee is restricted in doing business within the limit. If the franchisee breach the covenant, the franchisor has right to claim damages or to restrain the franchisee from inappropriate behavior as well as to move the court for injunction.