The Research Of Responsibility To The Third Person Of Franchiso

Specific to the output model of commercial franchising intangible asset, and takethe social public’s inadequate understanding of commercial franchising, asymmetry ofinformation between the franchisor and the franchisee into consideration, our countryhas promulgated the commercial franchising management method, the regulations onthe administration of commercial franchise to regulate the behavior of commercialfranchising, protect the lawful rights and interests of franchise and the franchisee.However, it is a pity that the two rules just stipulate the rights and responsibilities offranchisor and the franchisee, but never give a clear stipulation of the civil liability ofthe third party.In operation, the franchisor and the franchisee will surely have a certain civillegal relationship with the third party, they may have interest conflict and undertakecorresponding civil liability. However, our country has not yet had a specialized legalsystem for this situation. There even does not have an accordant solution for thedetermination of the defendant in the judicial practice, the application of the law andthe way to undertake responsibilities. The paper, sets out from liability for breach ofcontract and tort liability, tries to refer to the relevant experience of comparative lawand puts out detailed imputation plan of the responsibility in commercial franchisingthe franchisor should have to the third party.The paper starts with the realistic problems caused by commercial franchising,by analyzing the rights and responsibilities of commercial franchising franchisor andfranchisee, the writer draw a conclusion that the franchisor and franchisee’sindependence should be restricted in the responsibility franchisor should have to thethird party. Through the analysis of other countries’ relevant legislation, judicialpractice and the replay Supreme Court gives about Chongqing’s The consultationwhether the franchisor who franchised to use enterprise’s name should bear theliability for the debts, the paper draw a conclusion that the problems of responsibilitythat the franchisor should have to the third party appear in commercial franchising should be solved in different ways according to their detailed conditions under theframework of current law. The paper tries to list some cases of default andinfringement and give specified of solution methods.The paper firstly discusses the status of default responsibilities that thefranchisor and franchisee should undertake towards the third party, and gives detailedimputation scheme. When the third party, taking the identity of business subject,builds the cooperative relationship with franchisor, it should do its responsibility ofwarning which is more prudent than normal person, and carefully check the realidentification of franchisor. If there is no special certificate, franchisor does not needto assume any responsibility. If the third party does his duty of warning, but still can’tdistinguish the law relationship between franchisor and franchisee, or the franchisorignores the query the third party comes up with, any interests losing caused by thosereasons should be undertaken by franchisor according to the system of agency. Afterthe franchisor admits the responsibility, the third party can claim for recovery towardsfranchisor. While the third party is ordinary customer, the franchisor should undertakethe responsibility according to the system of agency, despite the franchisor obviouslyinforms its principal position’s independent and special responsibility. When thedefault responsibility is caused by franchisee’s product flaw which is provided byfranchisor, the franchisor should take responsibility for the flaw. Then, the papercarries a deep discussion of the situation of the infringement responsibility thatfranchisor and franchisee should bear towards the third party, and givescorresponding imputation program. The infringement and damage result caused byfranchisee which is outside the control of franchisor should be undertaken byfranchisee. The franchisor and franchisee should undertake the joint liability if thethird party’s personal and property damage was caused by the defect of franchiseproduct. When the customer was damaged while he or she is spending money in thebusiness place of franchisee due to franchisee’s business behavior, the franchisor andfranchisee should take the joint liability. But if the franchisor and franchisee havetotally fulfilled their statutory publicity obligation, customer can distinguish that thefranchisee is independent of franchisor, the franchisee can impunity by proving thathe has fulfill the responsibility of publicity obligation. If the third party’s rights were damaged by the flaw in right of franchisee’s business resource which is permitted byfranchisor, the franchisor and franchisee should jointly undertake their infringementresponsibility towards the third party. If the infringement responsibility was causeddue to franchisor’s control of franchisee’s business activities, it should be judgedaccording to the principle of default responsibility. If the franchisee lacks relevantability, the franchisor does not do his duty of warning, or franchisee’s behavior washappened within the control scope of franchisor, the franchisor should take theresponsibility.On the basis of predecessor’s analyzing of the imputation type which thefranchisor should undertake towards the third party, combine with UK-America lawsystem, China mainland law system and the legislation and judicial practice ofTaiwan region, the paper has designed specified solution methods aim at franchisorundertaking the responsibilities of default and infringement, further hopes to makethis kind of cases more certainty and operative.