First, the supermarket franchise fees
First of all, there is no such thing as a free lunch. Let's discuss the charges for joining supermarkets from a legal perspective.
1, the legal source of the franchise fee.
Franchising is a special mode of operation, and its franchise fee can only be generated based on a certain legal relationship.
The indirect legal source of joining fee is China's civil and commercial law, such as general principles of civil law and contract law. According to these laws, as long as the franchisor (licensor) and the franchisee (franchisee) reach an agreement and conclude a legal contract, they can collect franchise fees according to the contract.
The direct legal source of franchise fee is the Trial Measures for Commercial Franchise Management issued by the former Ministry of Internal Trade (1997 1 1). The second paragraph of Article 8 and the second paragraph of Article 12 of this method stipulate that the franchisee has the right to collect the franchise fee and various service fees from the franchisee, which actually gives the franchisee the right to collect the franchise fee.
2. The legal structure of joining fee.
Charging is a right (power), and any charging is based on a certain legal relationship. To make an inappropriate analogy, fees are the product of legal relationship, and every reasonable fee should have its corresponding legal relationship.
We believe that the franchise fees of general supermarkets can be mainly divided into three types, based on three different legal relationships:
(1) Charges based on paid licensing relationship of intellectual property (trademark, trade name, font size, etc.). );
(2) Fees arising from the business guidance service relationship (note: the services provided by the franchisor to the franchisee can be paid according to law);
(3) Charges based on the relationship between commodity sales. In addition, the charging items also include personal miscellaneous expenses arising from other legal relationships, but mainly the above three. Every charge should be based on the legal relationship, so that the charges are well-founded and clear at a glance.
Please look at the text bar chart below:
(1) royalties of intellectual property rights-paid use of intellectual property rights.
② The relationship between management guidance fee and technical consulting service of franchise stores.
(3) Payment for goods and freight-the relationship between the purchase of goods and collateral obligations.
(4) Miscellaneous expenses-other corresponding legal relations.
3. Defects of the current royalty system.
At present, many enterprises engaged in supermarket franchise basically charge "franchise fee" (note: the concept of "franchise fee" comes from the textbook of China Chain Store & Franchise Association) in the franchise charging system and charging items. Franchising, the main economic benefits come from charging franchisees the joining fee regularly. But the question came: "What is the' royal family'? What is the legal nature of' royalties'? " On the issue of "royalties", we can't simply copy the relevant concepts in the textbooks of China Chain Store & Franchise Association, because this concept is too vague and there is no solid legal relationship to back it up. The franchise fee based on different legal relationships cannot be simply classified as the concept of "royalty", but the franchise fee should be clearly defined and adjusted separately through the clear legal relationship of the charging items. The disadvantages of the current royalty system are mainly reflected in the "royalty". The concept of royalty is vague, and its legal basis and corresponding legal relationship are relatively thin. The concept of "royalty" is specious with intellectual property licensing fees and franchise consulting fees, and vague charging items will reduce the consideration of franchise contracts and cause unnecessary doubts.
Today, franchise knowledge is not popular, and even the people's courts classify franchise cases as joint venture contract disputes, so the main charging items of franchise should be clarified and standardized.
4. The idea of improving the franchise fee system.
We believe that we should make some legal adjustments to the current franchise fee system of general supermarket franchise enterprises from the legal point of view, and clearly divide the "franchise fee" into two items: ① paid license fee for intellectual property rights; ② Service fee for joining management guidance. The advantage of this is that these two charges are independent charges based on two legal relationships. As long as there is a legal relationship, the corresponding charging rights and obligations exist. That is to say, as long as the franchise relationship exists, as long as the franchise stores are using the licensor's trademark, trade name, font size and other intellectual property rights, they should pay a certain royalty to the licensor on a regular basis. Franchisees cannot refuse to pay royalties for intellectual property rights because of the services provided by Licensor. Judging from the litigation practice, it is easier for the court to identify the legal relationship once the lawsuit is triggered by the franchise fee.
Second, the risk and control of supermarket franchising
Dialectical materialism tells us that everything has two sides. Franchising chain has outstanding advantages and low-cost expansion, which not only increases the popularity of supermarkets, but also obtains rich returns and promotes economic growth. However, its shortcomings are also obvious: because franchisees are independent entities with high freedom of operation, the headquarters has little control over franchisees and it is difficult to manage them, which will lead to various risks. We can summarize the risks of supermarket franchising into the following two categories: first, the risks within the legal framework; The second is the risk within the business framework. This paper mainly tries to analyze risks within the legal framework.
(1) What are the risks within the legal framework?
We know that the relationship between the franchisor and the franchisee is often just a paper contract, but what happens between the franchisor and the franchisee is a series of complex legal rights and obligations such as trademarks, trade names, products, patents and know-how, and business models for franchising. Franchising involves administrative law, civil law, commercial law, economic law and other legal departments, and there are dozens of legal norms and administrative regulations to adjust franchising. There are so many legal norms to regulate a business behavior, which is rare in the industrial and commercial field. From another perspective, we can see that franchising is highly dependent on the law. Specifically, the risks within the legal framework mainly include:
1, default risk
The default risk we are talking about here is not the risk of contract default in the general sense, but the risk caused by the franchisee's delay in fulfilling the obligations stipulated in the franchise contract and disobeying the management of the franchisor after the franchisor and the franchisee establish the franchise relationship. The most common thing is that franchisees default on the fees they should pay under various excuses, or purchase goods without authorization in violation of the agreement. What's more, franchisees expand the scope of use of trademarks, trade names, patents, proprietary technologies and business models. Without the consent of the authorized person. For any supermarket, this risk has its own special reasons. In the franchise chain system of supermarkets, franchisees are independent legal persons, and their respective property ownership relations remain unchanged, and they jointly operate under the guidance of the headquarters. Under the current legal framework of China, the legal environment of franchising is not perfect. Because there is no specific franchise legislation, in the trial practice, the court often adjusts the determination of franchise relationship according to Article 53 of the General Principles of Civil Law of People's Republic of China (PRC). According to Article 53 of the General Principles of the Civil Law, if an enterprise or enterprise or institution operates independently in accordance with the contract, its rights and obligations shall be stipulated in the contract, and each shall bear civil liabilities. The headquarters gives franchisees the right to use the overall image of this supermarket, such as trademarks, shop signs, etc. This is called CI (Visual Identification System). In terms of legal status, the headquarters and franchisees are completely equal and independent, and there is no subordinate relationship. Franchisees have the right to operate independently, and the headquarters will provide them with necessary business guidance and related technical and training support. As franchisees are independent entities, the headquarters has limited restrictions on them. In this case, some self-management behaviors of franchisees may directly harm the interests of franchisees and threaten the security of franchise system. The specific breach of contract of franchisees includes but is not limited to: ① purchasing without authorization without implementing the unified procurement regulations of headquarters; (2) Disobeying the unified management of the headquarters, and going its own way; (3) Concealing the sales of franchise stores and evading the obligation to pay the franchise fee; ④ The franchisee unilaterally terminates the contract without authorization, and so on. These serious breaches of contract by franchisees directly infringe on the interests of the licensor, resulting in the unequal relationship between rights and obligations, so that the licensor cannot enjoy the corresponding rights after fulfilling its obligations. This kind of default risk is the biggest risk among all legal risks.
2, the risk of infringement
Franchising is often related to the licensed use of certain intellectual property rights, such as trademarks, trade names, products, patents, proprietary technologies and business models, so in practice, franchisees will also infringe on the intellectual property rights and business secrets of licensors. For example, the franchisee expands or changes the scope of use authorized by the licensor without permission, or illegally sub-licenses or sub-licenses, or uses or disseminates the business secrets of the licensor without permission. For another example, after the franchise relationship between the two parties is terminated, the franchisee does not stop using the relevant authorization of the original licensor, which constitutes an infringement of the exclusive rights of the licensor. The only remedy for infringement risk is mainly judicial means, but no matter what the result is, the enterprise will bear high legal costs, which will lead to the increase of management costs of franchise enterprises, thus making the licensor lose more than it gains.