Whether embezzlement is established in the so-called "franchis contract" in case where the franchise owner voluntarily consumes the sales price of the goods (negative)

The basic nature of the so-called franchise contract is a continuous contract for the supply of goods between the head office and the franchisee as an independent merchant for the contract period. In the case of the head office, it is merely that management technical guidance and the price for the lending of goods are guaranteed without involvement in the business activities of the franchise, and as a result, the head office and the franchise store cannot be deemed to be jointly managed and the distribution of profits and losses among them cannot be jointly carried out. Therefore, the franchise contract cannot be viewed as a partnership because the sales price for the goods sold by the franchise store is the ownership of them, and therefore the voluntary consumption of them is nothing more than the default of the franchise contract, and therefore, the crime of embezzlement is not established.

Article 355(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

Defendant 1 and one other

Prosecutor

Daejeon District Court Decision 95No632 delivered on October 6, 1995

The appeal is dismissed.

We examine the grounds of appeal.

According to the reasoning of the judgment of the court below, the contract of this case is to supply technology and trademark on the operation and management of the headquarters to the member stores, and the owner of each member store shall be responsible for the operation of the respective member stores by using them, but the management of the member store shall be based on its own responsibility and duties. Therefore, the member store shall have all rights and duties necessary for the operation of the store as the business owner of the head office. As such, the member store shall order the goods from the head office and deliver the sales proceeds to the head office. The supply of the head office shall be limited to the cost of the goods purchased at the head office, and the sales proceeds shall be treated as the sales proceeds of the head office to the head office. The sales proceeds of the head office shall be deducted from the sales proceeds of the head office to the head office deposited in the Gu for the settlement period, and 65% of the gross sales profit amount of the head office shall be attributed to the head office to the head office, and as a result, the defendants shall not be deemed to have been aware of the sales proceeds of the other member's's contract under its own nature and special circumstances.

In light of the records, the above fact-finding and judgment of the court below are just, and the head office share the amount equivalent to the profit-sharing ratio of the head office within the limit of 1% of the total sales in the case of losses incurred by a franchise store as pointed out in the discussion, but according to the above franchise agreement, the above loss apportionment agreement can be recognized that the franchise store should have the intention to open the store. Thus, the contract of this case cannot be viewed as a partnership agreement, and there is no error in the misapprehension of legal principles as to the franchise store contract of this case, such as the theory of the court below.

There is no reason to discuss this issue.

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

Justices Ahn Yong-sik (Presiding Justice)