가맹사업 필수품목과 차액가맹금에 관한 소고

Recently, as regulations on essential items and differential franchise fees, which are important factors for competition between franchise brands, have been strengthened in Korea, civil lawsuits for unjust enrichment by franchisees demanding the return of differential franchise fees from the franchisor have become an issue. Since essential items are key factors for competition between franchise brands, regulations on them must be designed precisely, and accurate understanding of franchise contracts by contracting parties and stakeholders surrounding franchise businesses is essential. In order to desirablely resolve the issue of essential items and differential franchise fees, the franchisor needs to provide sufficient explanation and consultation to franchisees regarding franchise contracts. In particular, it should avoid designating items that do not contribute to consumer welfare and competition between brands as essential, and care should be taken not to supply such items to franchisees at a margin that exceeds essential costs such as logistics costs or labor costs. Franchisees should be familiar with their contracts with the franchisor and actively cooperate. Franchisees, as ‘merchants’ under the Commercial Act, must understand the nature of their business, the franchise business, and must accurately understand the franchisor’s policies in order to secure the efficiency of the franchise system by complying with the obligations in the franchise agreement. Mean- while, the franchisee association must strive to enhance the franchisee’s negotiating power against the franchisor while ensuring that the franchisee and the franchisor can actively discuss conflicting issues. The Fair Trade Commission, the regulatory agency of the franchise industry, must consider that essential items are a key means of differentiation for competition between franchise brands. Even when evaluating the management status of a franchisor through agreement performance evaluations, etc., rather than evaluating the reduction of essential items or conversion to royalties, it is necessary to consider whether there are any violations of the law, such as mandatory purchases of general industrial products or acts of binding counter- parties, in consideration of the purpose of the regulation. In addition, the Fair Trade Commission’s differential franchise fee regulation must also be fair in a way that does not discriminate between indirect and direct manufacturing. I believe that the current franchise business law’s regulation of essential items and differential franchise fees should be in harmony with the competition and consumer welfare protection pursued by the Monopoly Regulation and Fair Trade Act. Even if it is recognized that there is a need for regulations to protect businesses with inferior transactional positions, including franchisees, the regulations need to be designed and operated in a way that simultaneously considers the promotion of competition and the protection of consumer welfare. This is because the Franchise Business Act exists to protect franchisees, promote growth through competition by franchise headquarters, and promote consumer welfare and the sound development of the national economy through this.