대리상의 보상청구권 규정의 법적 성질과 다른 중간상에의 확대 적용 여부

Korean Commercial Code Sec. 92-2 provides that on termination of his agency the commercial agent is entitled to be indemnified. This entitlement results from the idea that an agent may spend money, time and effort establishing a market and goodwill for his principal, but then be deprived of the benefit of his investment through termination of his authority by a principal who seeks to deal directly with customers or employ another agent to do so. According to the laws of EU and its member states, parties cannot contract out the provision for indemnity ‘to the detriment of the commercial agent before the agency contract expires’. That means where a contract purports to exclude indemnity, the agent would nevertheless be entitled to it. Even though there is no such provision in Korean Commercial Code, some Korean scholars argue that the provision for the entitlement of indemnity is mandatory. I do not think so. The freedom of contracting parties to govern their contractual relations is a basic tenet of commercial law and that freedom is removed only by statutory regulation or rules that are mandatory, of which Korean Commercial Code does not know. Therefore, the law of indemnity of a commercial agent should be construed as gap-filler that supplies a contractual term that the parties failed to include in the contract. Another issue is whether entitlement provision of indemnity of a commercial agent should be applied, by analogy, to such a self-employed commercial intermediary as a franchisee, commission agent, distributor or the like. The goal of the construction of the law could be to find out the concrete fairness only if, and to the extent that, the legal stability is not derogated. Considering the clear and unequivocal wordings of Commercial Code Sec. 89 which provide for “in the name of the principal”, the definition of a commercial agent does not extend to self-employed intermediary who purchases in his own name goods from the principal and subsequently sells those goods to third parties but acting on behalf of the principal. The activity pursued by persons acting on behalf of a third party but in their own name is different from that pursued by commercial agents. As the European Court of Justice and the German Government rightly observes, the interests and the need for protection of their occupations are not the same. Accordingly, there is no reasonable doubt that the scope rule of commercial agent include other type of self-employed commercial intermediaries. It is time to wait and see the attitude of the Korean Supreme Court to the issues reviewed above, which would be expected to come out in near future.