The case holding that the franchisee's voluntary consumption of the sales price of goods does not constitute embezzlement in light of the terms of the franchise contract.

The case affirming the judgment of the court below which held that since a franchise contract entered into with the defendant's head office is a so-called "franchise contract" which is a special contract between an independent merchant and under which one party uses the other's trade marks, such as trade name and trademark, and is controlled by the other party to pay the other party for its business, its basic nature is the continuous supply contract between the head office and the franchisee as an independent merchant for the contract period, and the head office is merely guaranteed a certain ratio of sales amount as a result of management technical guidance and loan without involvement in the franchise's business activities, and the head office and the franchise store cannot be viewed as a joint management and joint distribution of profits and losses among them, since the head office and the franchise are merely guaranteed a certain ratio of sales amount without involvement in the franchise's business activities, it cannot be viewed as a franchise business relationship. Therefore, since the sales amount of goods sold and kept by the defendant as the owner of the franchise is owned by the defendant, and therefore, the defendant's voluntary consumption of it is merely

Article 355(1) of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 and 1608 (Gong1996Sang, 1175)

Defendant

Prosecutor

Incheon District Court Decision 97No1835 delivered on November 13, 1997

The appeal is dismissed.

We examine the grounds of appeal.

According to the reasoning of the judgment of the court below, the contract entered into between the defendant and the non-indicted 2 corporation (hereinafter referred to as "the non-indicted 2") for the supply of technology for the operation and management of convenience stores and goods for sale at the headquarters, and the store owner shall take charge of the operation of the store using them, but the store's management shall be based on its own responsibility and judgment based on the management guidance of the store. Therefore, the store owner shall, in principle, purchase goods from the head office. In this case, although the store can purchase goods from the person other than the head office, the price for the goods shall be entrusted to the head office. The sale price of the store shall be the price for the goods at the price recommended by the head office, and the sale price for the goods deposited at the seat of the head office shall be adjusted to 30% of the gross sales profit (the case where the business hours are 24 hours a day) through 33% of the sales profit, and the contract for the sale of the goods shall be deemed to belong to the other party within the contract term of embezzlement.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)