Research On Franchisor's Vicarious Liability In Commercial Franchising

As the development of the economy and the society, the franchise stores have become more and more common today. The fast expansion of commercial franchise is accompanied by legal disputes. In order to solve this kind of disputes, our country has issued a series of new rules, laws and regulatory documents. However, laws and regulations promulgated never involve the external responsibility of franchisers who are considered as the responsible for the whole franchise system. This situation will greatly increase the uncertainty in judicial practice. In this context, to make clear of the nature of franchisor's liability and determine the legislative mode become the key to solve the aforementioned problem.Based on the conceptual definition, the author demonstrates franchisor's vicarious liability by the general liability theory. The demonstration involves the jurisprudential basis,the legislative modes and the concrete determination standards of franchisor's vicarious liability. As proscribed in most countries' law, there are three kinds of legislative mode. One is the general terms' mode; one is the special provisions' mode; the last one is a combination of the two above. The general term's mode can offer vast possibilities for the liability's realization. However it cannot set a clear boundary on the franchisor should or should not take the vicarious liability. So the author's advise is choosing the special provision's mode. Franchisor's vicarious liability is a liability the franchisor takes for the franchisee's illegal behavior. This kind of vicarious liability cannot be applied to every situation, otherwise the interest balance among the franchisor, the franchisee and the third party will be broken. Franchisor should be held accountable for franchisee's illegal behavior only when actual agency or apparent agency is established; besides, the identification standards of franchisor's vicarious liability should be satisfied. And the concrete determination standards of franchisor's vicarious liability still need to be refined.In a word, these papers focus on improving the legislation of franchisor's vicarious liability.