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Research On Commercial Franchise

Posted on:2022-10-27Degree:DoctorType:Dissertation
Country:ChinaCandidate:P Y LiuFull Text:PDF
GTID:1486306728481834Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The starting point of commercial franchise is that the franchisee pays fees for obtaining the franchisor's franchise right and concludes a franchise contract around the exercise of the franchise right.The concept of commercial franchise right often appears in the relevant research of commercial franchise.However,few people answer the specific questions such as what is the franchise right,who is the subject of the right,what content is included,whether there are restrictions on the way of exercising the right,whether there are restrictions on the authorization act,and how to protect the right.Most of the existing researches on franchising focus on other more specific problems in franchising.The analysis of franchising is often just a passing,or simply classified according to the economic activities or contract contents of franchising,focusing on describing other problems in franchising with the concept of franchising.The problems related to franchise rights run through the whole franchise activities.Whether it is the information disclosure of the franchisor in the early stage,the specific performance of the franchise contract and the post contract obligations after the termination of the franchise relationship,they all revolve around the franchise rights.Franchise is the core element to distinguish franchise from other business forms or legal relations.The emergence and development of franchise also distinguish different types through the differences in the establishment methods or contents of franchise.Therefore,only by clarifying the concept and content of franchise can we get a more targeted answer.With the help of the definition of commercial franchising at home and abroad,and through the comparative analysis of the concepts similar to franchising,the franchise right can be summarized as a right generated by the franchisor's authorization of the(broad)intellectual property it holds,which is essentially a right to use intellectual property.Franchise right is a relative right in the form of contract.Although it is a relative right,the franchise right should be exclusive.It is a kind of right that the franchisor guarantees the franchisee to use the franchisor's operating resources for exclusive or exclusive operation in a specific region and within a specific period.Because there are often differences in economic strength,professional ability,information acquisition ability and risk-taking ability between the franchisees,there are also significant differences in the negotiation ability of the two parties when signing the contract.The franchisor may use this advantageous position to conclude many substantive unfair contracts.At the same time,the commercial franchise contract is a long-term,sustainable and relational commercial contract.Compared with the traditional contract,its rights and obligations are easier to be unbalanced,and it is difficult to apply the general contract interpretation principle,which further amplifies the contradictions in the franchise relationship,which is also one of the reasons for the high incidence of commercial franchise disputes.In order to solve the problem of imbalance of commercial operation relationship,in addition to strengthening the information disclosure obligation of the franchisor in the early stage and reducing the opportunistic behavior of the franchisor due to the information difference between the two sides,the rights and obligations of both parties are balanced mainly by means of contract interpretation in favor of the franchisee after the dispute,so as to adjust the franchise relationship.However,the above adjustment ideas for the franchise relationship mainly focus on the franchise contract.Therefore,when the gap between the two sides is too large,neither the early information disclosure nor the later contract interpretation can really adjust the relatively closed internal relationship of the contract.In order to truly meet the actual needs of protecting the franchisee and regulating the unbalanced franchise relationship,we should,on the basis of emphasizing that the franchisee actually owns the franchise right,focus on protecting the legitimate rights and interests of the franchisee,and construct the establishment procedures and specific rights exercise and protection rules of the franchise right,Regulate the possible abuse of rights by franchisors through clear standards.On the establishment of franchise rights,the current post filing mode can only realize the basic management function of the franchisor,but can not meet the actual needs of the franchisee to access the basic information of the franchisor,can not reduce the investment risk of investors(potential franchisees),and is more difficult to realize the functions of standardizing the franchise market order.At the same time,the system of franchise information disclosure has not played its real role.Therefore,it should be considered to modify the existing filing system into a management mode of parallel pre-registration and post filing,formulate a unified franchise information disclosure document and disclose it on the government filing management website.In the disclosure documents,special attention should be paid to the disclosure of important information related to franchising and relevant information that may have an impact on the franchisee's willingness to enter into a contract,so as to build a commercial franchising information disclosure system with the actual needs of the franchisee as the core.At the same time,it is necessary to change the current "enterprise" and "two stores one year" qualification standards for franchisors in China,appropriately learn from foreign experience and combined with the actual situation of our country,improve the registration system for franchisor qualification,and require franchisors to bear compensation liability and administrative punishment for information disclosure defects.From the perspective of the exercise content of commercial franchise rights,it mainly includes the franchisee's right to request information disclosure and guidance and assistance from the franchisor.In essence,it is to request the franchisor to perform its contractual obligations and complete the authorization behavior.In the process of the franchisee exercising the franchise right,on the one hand,we should pay attention to the neglected right to request business information in the performance;On the other hand,the franchisor's authorized behavior standard should be established to require the franchisee to provide practical help to the franchisor.In addition,the franchisor shall guarantee the franchisee's exclusive operation right and ensure that the franchisee can obtain market competitive advantage by exercising the franchise right.In addition,the franchisee's exercise of the franchise right shall include reasonable channels for the transfer of the franchise right,so as to reduce the risks and losses borne by the franchisee when he withdraws from the franchise.In terms of the protection of franchise rights,because the franchisee only has the right to use relevant intellectual property rights,the franchisor,as the actual owner of intellectual property rights such as trademark rights,is likely to use its advantageous position to carry out abuse of rights in the process of authorization,which poses a threat to the stability of the franchisee's exercise of franchise rights.Therefore,reasonable restrictions should be made on the agreement that the franchisor may cause damage to the franchisee in the franchise contract.Firstly,in terms of supervision and control over the franchisee,the franchisor should reserve certain options for the franchisee to avoid abuse of rights under excessive control.At the same time,the franchisor should pay attention to reducing the possibility that the control behavior in franchising violates the anti-monopoly law because it involves restricting competition.Secondly,in terms of the franchisor's recovery of the franchise right,the necessary restrictions on the franchisor's discretion to recover the franchise right should be considered,that is,the franchisor can recover the franchise right only after a certain procedure on the premise of having legitimate reasons,so as to avoid the franchisor from suffering heavy losses due to the sudden loss of the franchise right and inability to continue operation.Finally,in terms of collecting royalties,the franchisor should ensure that the amount or calculation method of collecting royalties remains stable.The franchisor shall fully explain the expenses to the franchisor during the early information disclosure,and explain the reasons for adjustment to the franchisee in case of subsequent adjustment.After the franchise relationship ends,the franchise right disappears,and the franchisee may still need to bear the restrictions from the franchisor.Based on the particularity of the authorized object of franchising,some franchisors will choose to protect the business secrets in the franchise right by signing a non-competition agreement,so as to avoid the franchisees who have mastered the business know-how from affecting their market dominant position.Although the franchisor is allowed to enter into a reasonable non competition agreement,it also needs to be bound by the rationality standard,such as whether the purpose of entering into the non-competition agreement,the restricted content,the restricted time,the restricted geographical scope are reasonable,and whether there are other alternative means to protect the interests of the franchisor,In order to avoid the franchisor making improper restrictions on the franchisee's subsequent normal business behavior by entering into a non competition agreement.In an ideal commercial franchise,the franchisor and the franchisee can form a community of interests: the franchisor has a new source of capital to expand the market and brand influence and obtain higher goodwill value,while the franchisee can get the franchisor's trademark use right with market competitive advantage,high-quality products and mature business experience to quickly start its own business.At the same time,the business experience and reputation formed by well-developed franchisees can also feed back to franchisors,further improve the quality of products and services,gradually promote the whole franchise system to form a unified and high-standard management service model,and drive the development of relevant industry markets.In order to achieve the goal of benign development of commercial franchise market,we should really recognize the root causes of contradictions under the appearance of chaos and solve the practical problems caused by the imbalance of franchise relationship.Clarify the concept,content and right attributes of franchise right from the source,build a benign guidance system based on this,enhance the trust of franchisees and ordinary consumers in the commercial franchise model,truly realize the maximum value of commercial franchise,and give full play to its role in promoting the development of small and medium-sized enterprises,absorbing private capital investment,expanding consumption Promote employment and other aspects of the positive role.
Keywords/Search Tags:Franchise, Franchise Relationship, Information Disclosure, Abuse of Rights, Intellectual Property, Non-competition
PDF Full Text Request
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