Research On Some Legal Issues Concerning Disputes Over The Contracts For Franchising

Franchising is called the leading business pattern in the 21st century. The franchiser authorizes the franchisee to use some management resources such as trademark, firm and management pattern to develop operation by entering into a franchising contract. At the same time, the franchisee can get an effective management pattern by paying some fee. A lot of business risk can be avoided by running business under a united management system.As a promising business pattern, the environment of development for franchising, especially the environment of legal system is relatively deficient. First of all, most people know little about franchising. Secondly, the legislation of franchising is not completed, and there are many problems in justice practice.In order to offer some beneficial references to define the legal relationship of franchising, standardize franchising, and to ensure the sound progress of franchising, the author begins with some typical cases concerning disputes over franchising. Those issues are classified and then analyzed, on which foundation some countermeasures and suggestions are provided. The essay is consisted of three chapters except preface and epilogue.Depending on four material cases, Part 1 enumerates some disputes over the contracts for franchising, from which educes the legal issues to be discussed.Part 2, defines and analyzes the basic concepts of franchising, which is consisted of the following three chapters.Chapter 1 discusses the definition of franchising and the basic concepts of the parties. At first, it enumerates some different definitions of franchising brought forward by some international organizations and our country. After that, it analyzes the definitions, qualifications, rights and obligations of franchiser and franchisee. It also analyzes the relationship between the two parties, which is a special contract relationship. In the end, it analyzes the concept of the third party of franchising contract.Chapter 2 concludes the basic legal characters of franchising, and then classifies it according to three different criterions.Chapter 3 focuses on the development of franchising and the problems existing. The situation of franchising in our country now is developing quickly but in a low level, there are many problems. Meanwhile, in this chapter, it also concludes the dispute types of franchising and the reasons why it comes into being in our country.Part 3 includes some legal issues in justice practice. It is divided into two chapters. The first chapter relates to some legal procedures, including the establishment of a case and the third party of the litigation subjects.Section 1 of chapter 1 begins with comparing franchising with some similar legal concepts, pointing out that the cases referring to franchising disputes are confused. In this section, the author suggests to unify the cases as disputes over contract for franchising. Section 2 of chapter 1 analyzes the issue in which the third party who not entering into the contract becomes to be litigation subject by citing cases and making a chart. In this section the author points out that the alliances shops and the suppliers designated by the franchise can be litigation subjects as the third party.Chapter 2 is about entity issues. According to the obligation of information disclosure for franchising, section 1 puts forward that strict and exact criterions should be taken when examining franchiser' s obligations of information disclosure. At the same time, much attention should be paid to distinguish the difference between franchising and advertisement. The franchisee should be treated as commercial subject, whose noticing obligation is higher than general consumers.Section 2 of chapter 2 is about the restrictive articles of competition for franchising. It puts forward that those articles are reasonable, however, they also should be restrict in a reasonable scope. Because of the lack of legislation in justice practice, the principle of good faith can be applied. In the end, the author gives some suggestions of legislation.Section 3 of chapter 2 discusses the effectiveness of rescission. It puts forward that the contract for franchising is a kind of continuous contract. Different situations should be distinguished when rescinding this kind of contract. Whether the alliance fee should be paid back or not depends on respecting the stipulations and distinguishing the obligations of breaching the contract.