가맹사업 분쟁조정제도의 집단적 권리구제 한계와 개선방안 - 더본코리아 사건을 중심으로 -

초록

The franchise business sector in Korea has grown into a major market, encompassing thousands of franchisors and brands and hundreds of thousands of franchise outlets. As the market has expanded, disputes between franchisors and franchisees have also increased. However, the current dispute mediation system under the Fair Transactions in Franchise Business Act is designed primarily as an individual, voluntary dispute resolution mechanism between specific parties. As a result, it has significant limitations in addressing disputes in which numerous franchisees under the same brand suffer similar or common harms. This article examines the structural limitations of the current franchise dispute mediation system by focusing on the Theborn Korea Yeondon Bolkatsu case. In that case, multiple franchisees alleged similar harms arising from the franchisor’s recruitment process, expected sales representations, profitability explanations, and operational policies. Although the dispute involved common factual and legal issues, it was not handled through a formal collective dispute mediation procedure. Instead, the matter proceeded through fragmented channels, including local dispute mediation, a complaint to the Korea Fair Trade Commission, administrative investigation, and political mediation. This illustrates the institutional gap in Korean franchise law: there is no statutory mechanism comparable to collective dispute mediation under consumer protection law or collective procedures under standard terms regulation. The article argues that franchise disputes involving multiple franchisees should not be treated merely as parallel individual disputes. Rather, they often reveal structural problems in information disclosure, bargaining power, and franchisor control. Accordingly, this article proposes the introduction of a franchise-specific collective dispute mediation mechanism. Such a mechanism should include the recognition of representative standing for franchisee associations, public notice and additional participation procedures, common-issue management, strengthened document production duties, and closer coordination between mediation, Korea Fair Trade Commission investigations, and subsequent litigation. The article also draws comparative lessons from Australia, the European Union, and the United States. Australia’s Franchising Code of Conduct provides a useful model for multi-party ADR in franchise disputes. The EU’s representative action and ADR frameworks offer procedural insights regarding qualified entities, public notice, and collective redress. The U.S. franchise regulation model, particularly the FTC Franchise Rule, highlights the importance of strong pre-contractual disclosure and evidentiary requirements for financial performance representations. Based on these comparative insights, this article argues for a Korean-style collective mediation model tailored to the structural characteristics of franchise transactions. Ultimately, the Theborn Korea case should not be understood as an isolated dispute involving a single franchisor. Rather, it demonstrates the need to redesign Korea’s franchise dispute resolution system so that it can provide more effective, coherent, and collective relief for franchisees facing common harms.

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