Differentiating Legal Relation Of Commercial Franchise

Commercial franchise belongs to the new developing commercial management mode in our country. It has been only ten years since the first relevant laws for commercial franchise was issued in China in 1997. Because of the shortage of the experience of commercial franchise operation, with the addition of inconplete legislation, the question produced in practice in commercial franchise operation is constant. When these disputes are referred to the judicial authority, the judicial authority has no common sense to the legal relation of commercial franchise. All these have caused the confused state of franchise market at present. This text wants to start with the key elements of legal relation of commercial franchise, compared with some other legal relations of chain operation, agency, distribution, intellectual property right permits using,etc. to carry on the discussion of differentiating commercial franchise.The concept of franchise came from Europe of feudal society, while the modern commercial franchise initially appears in the U.S.A.. Commercial franchise includes tow modes of "Product Sales Franchising" and "Business Format Franchising". Different countries have the different definitions of commercial franchise. Some only involve the concept of "Product Sales Franchising ", and some "Business Format Franchising". The others involve the two modes above. According to the present trend, "Business Format Franchising" is a mainstream of commercial franchise in the whole world, as well as the developing direction in our country too. So, in this text, commercial franchise is directed primarily to "Business Format Franchising".To differentiate one legal relation from others, we should mainly differentiate the key elements of every legal relation, i.e. the subject, object, and the right and obligation. Among them, the right and obligation is the main factor of distinguishing the legal relations. In franchise, there are many peculiar rights and obligations. For example, franchisers should authorize franchisees using the operation resources and franchisees should pay for the authorizing in the form of franchise fees; franchisers should instruct franchisees and franchisees should obey; franchisers should announcing some key information before contract signed. All these are uncommon in other commercial relations. In addition, whether the franchisee's behavior form to agency by estoppel, and whether the franchisers should take substituting responsibility, and on which kind of intensity should franchisees undertake not to compete for the obligation of no-competition, have not been clarified in the laws of our country. In order to help the readers correctly understand franchise, the writer introduce in this text some foreign laws, and put forward her own opinion on this.Franchise is still a new commercial mode in China, but it has been developed very fast. Although the paces of the relevant legislation have been accelerated greatly in recent years, but as to the integrality and effectiveness of the legal content, still need improving badly. This text proposes solve some important problems in franchise one by one by relevant judicial interpretation, which is also the way to establish the foundation for issuing the relevant laws and regulations in future.