국제대리상계약 상의 주요 법률쟁점 -ICC 모델 대리상계약서를 중심으로-

Abstract

This Article deals with international commercial agency contract by which a principal can effectively cultivate new markets overseas through a commercial agent there. The commercial agency contract is the simplest and probably most frequently used means of organizing the distribution of goods in a foreign country. First, the concept of commercial agent oftentimes has been confused with that of distributor. A distinction between the two concepts should clearly be made. This article introduces and compares with relevant laws of EU and the United States that are completely different in terms of status of the commercial agent. EU takes a view that the commercial agent is a weaker party as compared with the principal. That view has resulted in widely accepted protective measures for the commercial agent such as a right of indemnity. Most countries in EU as well as Korea grant the agent the indemnity if the contract expires or is terminated for reasons other than a default attributable to the agent. Such “indemnity” may be construed as compensation for goodwill created by the agent and which accrues to the principal after the end of the contract, or as a compensation for the loss suffered by the agent as a consequence of the expiration or termination of the contract. The right of indemnity is recognized as “international mandatory rules” in most of EU countries while it being just as “ordinary mandatory rules” in Korea, as shown from the cases in the article. The different treatment of the indemnity right may provide the principal with a cautious approach in negotiating and making the commercial agency contract. On the other hand, any protective measure is not available in the United States where the agent will not be recognized as the weaker party. It entires leaves to party's autonomy in the commercial agency contract. In addition to the controversial issue of indemnity right, this article introduces major provisions in a model commercial agency contract which was drawn by International Chamber of Commerce in order to assist business people engaged in the relevant international trade and the lawyers aiding them in drafting and negotiating contracts. This model contract was designed to provide fair and balanced solutions to the main problems arising from an agency relationship, in accordance with prevailing legislative standards and in particular those indicated in the European directive.