가맹점 영업의 전전양도와 상법상 경업금지의무- 대법원 2022. 11. 30. 선고 2021다227629 판결에 대하여

Article 41(1) of the Commercial Act provides, “When a business is transferred, the transferor shall not engage in the same type of business in the same or adjacent special metropolitan cities, metropolitan cities, or Si/Gun for ten years, unless otherwise agreed.” Article 41(1) of the Commercial Act is a default rule that applies in the absence of another agreement (Opt-Out) and functions as a form of libertarian paternalism. Considering that: (i) a business transfer contract is concluded between merchants on an equal footing and thus it is not always necessary to prioritize the protection of the transferee; (ii) the temporal and geographical restrictions imposed on the transferor’s freedom of business are extensive; and (iii) Article 41(1) is exceptional from a comparative law perspective and may not correspond to reasonable majority standards depending on the nature of the business, the paternalistic intervention of Article 41(1) should be restrained when it does not align with the legislative purpose of “balancing with the consideration paid for goodwill by the transferee.” This is particularly true in the cases where goodwill is, in practice, attributed to the franchisor rather than the franchisee, and where the freedom to contract out, as stipulated in Article 41(1), is constrained by Article 168-9(1) of the Commercial Act, which requires a franchisee to obtain the franchisor’s consent in order to transfer its business. The decision under review, based on the purpose of Article 41(1), held that in cases of successive transfers of a business, the transferee’s right to demand non-competition constitutes part of the business assets and is thus transferred to subsequent transferees along with the business, and the authority to notify the assignment of the claim for non-competition is also transferred. While such reasoning is valid on the premise of an ordinary case of business transfer, it is difficult to regard the loss suffered by a subsequent transferee due to the transferor’s competition as always “unjust.” Therefore, the core reason why the notification of the assignment of the right to demand non-competition by a subsequent transferee should be effective is that, by its nature, the right does not pose a risk of double satisfaction. Meanwhile, the fact that the business is transferred successively within the ten-year period stipulated in Article 41(1) implies that collecting information about the business is not difficult; the business is somewhat standardized; uncertainty is not high; and transaction costs are low, which increases the likelihood of successive franchise transfers. The case at issue likewise concerns a franchise business. Franchise businesses are characterized by their control by the franchisor, the use of franchisor’s trademarks, and the contractual nature derived from the franchise agreement. They also require the franchisor’s consent for transfer. Precedent, taking into account the purpose of Article 41(1), has interpreted “same type of business” as “a business that may be in competition”, and expanded “same or adjacent special metropolitan cities, metropolitan cities, or Si/Gun” to “the entire country”, based on the region where the transferor’s business activities were typically conducted. To prevent excessive expansion, it is necessary to construe Article 41(1) narrowly in a purposive manner with respect to franchise transfers, thereby excluding its application in principle. In brief, unless there are special circumstances demonstrating that the transferor received substantial compensation for assuming the non-compete obligation circumstances consistent with the legislative intent of Article 41(1) the provision should not apply to franchise transfers. This is because such transfers essentially involve only the transfer of contractual rights (the right to operate the franchise) and physical facilities of the franchise store. Furthermore, if the non-compete obligation under Article 41(1) is enforced without restriction, there is a risk of undermining the reasonableness test for post-termination non-compete clauses in franchise agreements, entrenching inefficient resource allocation where opt-out is not freely available if opposed by the franchisor, and creating serious obstacles for small franchisees who need to re-establish a business to sustain their livelihood. Where necessary, reasonable non-compete agreements with temporal and geographical limits may be concluded for example, “the transferor agrees not to compete within the territory specified in the transferee’s franchise agreement during the contract period (three years in the case under review).” The conclusion of the decision was that the defendant, who was merely a franchisee of a coffee chain, had to close another coffee franchise business that he had reestablished at considerable expense two years and seven months after the initial transfer, pursuant to a judgment rendered approximately six years later. However, given that the franchisor’s expansion strategy likely would have led to another store being established nearby regardless of the defendant’s re-entry, that the defendant being a merchant but not a legal professional may not have been aware of Article 41(1), which is an exception from a comparative law perspective, and that the amount of consideration he received in the first transfer was unclear, it is difficult to categorically conclude that the plaintiff, the third transferee, suffered “unjust” losses from the defendant’s competition. In this respect, the court’s pronouncement that the initial transferee had acquired the right to enforce the non-compete obligation under Article 41(1), thereby foreclosing the possibility of purposive restrictive interpretation at the appellate stage after remand, leaves some regret, even taking into account the respect owed to the factual determinations of the pre-remand appellate court and the constraints of the principle of party disposition.