Analysis On Law Problems Of Franchise

Franchise, as a modern business model with obvious advantages, it is a business method based upon contracts, with the involvement of the civil law, contract law, the intellectual property law, the tort law, the produce quality law and the compition law. The legal relations are very complicated, and they require comprehensive adjustment.The legal relations of franchise are very complicated, but it is the most that is a series of the intellectual property right or the franchise right of authorization. Franchisor controls franchisee by prevalence situation of his own franchise right, there are real difficult to negotiate for contract that franchisee and franchisor in equality; and usually franchisor offeres standard contract, the nature of the contract is formalization contract or adherence conrtract, franchisee can hardly change the content about contract. Otherewise, it is so necessary to protect franchise contract parties in the fairness, and especially franchisee interests. The fair protection of franchise contract parties contains many aspects, such as the unjust compition, the protection of trademarks, and the protection trade names and so on. This study focuses on the fair protection of franchise contract parties on contract law.The systems of protection of contract parties'rights involve the contract performance and the defense of fulfillment, the warranty, the abolition and the liability of the breach of contract and so on. They are essential system about the protection of contract parties on traditional contract law, and match each other and take common function, make complete and logical framework. However, this embodies only the formal justice in traditional contract law, and in the case, parties are equivalent on economical power and status and so on. But, in franchise business, franchisee has to submit the management of franchisor; it is very difficult to use these rules for franchisee. America case law has confirmed implied obligations, which the obligations of good faith and fair dealing, in order to protect franchise parties and especialiy franchisee's intrests.Today, also America has created the relational contract theory, observe contract in social background, and argues that promise is not sole element of contract; except for this, such as economical power; status and custom play major roles in transaction. If only the promise and the fact are conjugated, really mean considering the interest of contract parties and embody essential justice. Otherwise these facts is the element of contract to influence essentical justice of contract, so that we should fairly protect the rights of franchisor and franchisee, propertly define the conflict concerning franchisee of living right and the protection of trade secrets of franchisor and the obligation of competition prohibition of franchisee, and franchisor may also take the responsibility of liability when franchisee comes to the dispute against the third party.We can use the ripe system and the advanced theory for reference, the tendency makes the rules to protect the rights of franchisee, improv legislation on franchise of china.