다단계판매에서 부부사업자 제도와 다단계판매원의 지위 양도⋅양수 - 공정거래위원회 2020. 9. 25.자 심결(의결 제2020–269호)에 대한 평석 -

In this trial, in the case of a married couple having the status of a multi-level salesperson based on a single membership number under the system of married couple business owners, it was questioned whether the change of status of the married couple business owner’s main and subsidiary business operators constitutes the transferring and taking over of the status of the multi-level salesperson prohibited on the Door-to-door Sales Act, and whether it is aiding such behavior. Based on the legislative purpose of the regulation, this trial admits the concept of the narrow interpretation under the judicial precedent, while reinterpreting the implications of the change in the status of the main and subsidiary business under the system of married couple business owners. It was considered that it did not correspond to the act of transferring and taking over of the status of a multi-level salesperson because it was merely a name change and there was no unforeseen damage to the lower salesmen and consumers. This commentary basically agrees on the position of the Fair Trade Commission however was written based on the perspective that, in addition to the logic of the trial decision based on the specificity of the married couple’s marital relationship, the analysis should have been done based on the Atomy Membership Terms and conditions. Also, this commentary was written based on the perspective that the system of married couple business owners is a concept of a union under the civil law. Accordingly, (1) after arranging the perspective that the legal nature of the system of married couple business owners and the relationship of attribution of rights are to be treated as a union based on the civil law, (2) trying to think about the legal meaning of the status of the main and subsidiary members in the system of married couple business owners. Next, (3) after analyzing the meaning of the transfer of membership status, based on this analysis, (4) looking at the meaning and permission of the the act of transferring and taking over under the provisions for prohibition of the act of transferring and taking over under the Visit Sales Act, which is an issue of this trial. As a result, in this commentary, the act of transferring and taking over of the status of a multi-level salesperson prohibited in Article 23, Paragraph 1, No.11 of the Door-to-door Sales Act means an act of transferring and taking over the position of a multi-level salesperson in a formal sense. It was concluded that the interpretation should be limited to fit the legislative purpose of the regulation. It was resonable to additionally demand the condition that, in the trial based on the position of the judicial precedent, 1) there is a transfer of status acocompanied with the transaction of money or, 2) the reckless transfer causing damage to the multi-level salesperson or consumer, or further trust. Accordingly, the system of married couple business owners does not correspond to the act of transferring and taking over of the status of a multi-level salesperson referred to in this regulation. The logic is summarized below. 1. Under the system of married couple business owners, married couples form a relationship as a union and they co-hold the status of members, that is, the status of multi-level salesmen. 2. As a member of the executive union, the main member has the right of representation and shall exercise his/her beneficiary right and management right. 3. The change of the main member and the subsidiary member is merely a procedure for changing the members of the executive union. Therefore, even if the main and subsidiary member are changed, the change of status as a member does not occur, so it does not subject to the transfer prohibition regulation under the Door-to-door Sales Act. 4. Exceptionally, under the system of married couple business owners, the whole transfer of practically all membership status may occur. However, this is not an act that occurs through the disposition act of a single whole transfer of membership status, but rather a legal effect that occurs when several acts are combined. Therefore, only the occcurrence of this de facto legal effect cannot correspond to the provision of transfer prohibition under the Door-to-door Sales Act. However, if the parties act in a de-lawful manner to take advantage of the legal effect of the transfer, they may fall under the provision of prohibition of transfer under the Door-to-door Sales Act, but in this case, such de-lawful purpose must be proved. 5. In order for a door-to-door seller to be punished for aiding and instigating the transfer of the membership status, basically there must be a transfer of membership status. However, in principle, there is no transfer of membership status, so aiding and instigating cannot be validated at all. Exceptionally, the transfer of membership can be validated if the system of married couple business owners is de-lawfully abused, but in this case, the legitimate system of married couple business owners was abused by the parties and cannot be regarded as an act of aiding and instigating of multi-level salesperson.