(I) Measures for the Administration of Commercial Franchise The former Ministry of Domestic Trade promulgated the Measures for the Administration of Commercial Franchise (for Trial Implementation) on June 4, 2004, 5438+0997+065438+ 10/4. Is this an enlightening law for publicity? It is of historical significance to popularize the franchise model. The remarkable feature of the Trial Measures is that it accurately defines the commercial franchise and clarifies the qualification of the franchise contract subject. The basic content of franchise contract and the basic rights and obligations of both parties to the contract. The trial measures stipulate that "these measures are applicable to businesses (including catering industry) in People's Republic of China (PRC)? Service industry) enterprise is a franchise activity? Individuals or other economic organizations ",but not for foreign investors and foreign-funded enterprises engaged in commercial franchise activities in the mainland of China. The field of commercial franchise in China is not open to foreign investors or foreign-funded enterprises. China joined the WTO in 200654381October 0+February 1 1, and promised to open its market access within three years. The Ministry of Commerce promulgated the Measures for the Administration of Commercial Franchise on February 3, 2004, and it will take effect on February 3, 2005. This method has the following characteristics:
(1) clarifies the conditions of all parties to franchise, not only stipulates the qualifications of franchisees, but also requires franchisees to be "legally established enterprises or other economic organizations", emphasizing the business entities participating in franchise activities.
(2) By strengthening the obligations of franchisers, it is clear that the characteristics of commercial franchising in China are the mode of operation, not the product. When granting a franchise to a franchisee, the franchisee shall "provide a business manual representing the operating signs of the franchise system" and "provide the franchisee with the sales necessary for franchising? Business or technical guidance, training and other services ".
(3) In addition to the main provisions of the franchise contract, it also specifically stipulates the "residual effect" after the franchise contract is terminated, that is, the content of non-competition.
(4) To formulate an information disclosure system, and clearly stipulate the information content that the franchisor should disclose.
(5) In order to standardize the franchise market order and prevent the franchisee from being infringed by false advertisements in the franchise, it is required that the information publicized by the franchisee must be true and credible.
(6) The Measures for the Administration of Commercial Franchise, according to the commitment of the China government to join the WTO, explicitly abolished the market access restrictions for foreign-invested enterprises to engage in commercial franchising, and established a special administrative licensing system for foreign-invested enterprises to engage in commercial franchising activities. The promulgation of the Measures for the Administration of Commercial Franchise conforms to the trend of international franchise legislation and is an important milestone in the history of franchise legislation in China.
(II) Regulations on the Management of Commercial Franchise the State Council promulgated the Regulations on the Management of Commercial Franchise on February 6, 2007, which took effect on May 1. The Measures for the Administration of Commercial Franchise promulgated by the Ministry of Commerce in 2004 shall be abolished at the same time. The Regulations on the Administration of Commercial Franchise is a sign that China's franchise legislation is maturing, and it is also an administrative regulation with compulsory execution. The Regulations on the Administration of Commercial Franchise (hereinafter referred to as the Regulations) mainly establishes five systems.
(1) defines the conditions that franchisees should have to engage in franchise activities. Specifically, it includes three aspects: first, only enterprises can engage in franchise activities as franchisees, and other units and individuals are not allowed to engage in franchise activities as franchisees; 2. Require franchisees to have a mature business model and provide continuous business guidance to franchisees? Third, it is stipulated that the franchisor has at least two direct stores in franchise activities, and the operating time exceeds 1 year. The third requirement, also known as "two stores a year", is mainly to prevent some enterprises from using franchising for fraud. At the same time, the direct store has a certain demonstration function, which is convenient for other operators to understand the franchisor's brand more intuitively from the operation of the direct store. Business model? Operating conditions, etc.
(2) The information disclosure system of the franchisor is stipulated. Is the information disclosure of franchisees important to ensure the timeliness of franchisees? Comprehensive? Know exactly? It is very important to know the relevant situation and make appropriate investment decisions on the basis of full information to prevent being cheated. Therefore, all countries that legislate on franchising regard information disclosure as the core system. Drawing lessons from international practices, the regulations set up a chapter on "information disclosure", which clearly stipulates that franchisees should establish and implement a complete information disclosure system, and provide relevant information and franchise contract text to franchisees in writing at least 30 days before the signing date of franchise contracts, and clearly stipulates the information content that franchisees should provide. The regulations also stipulate that the information provided by the franchisor should be true? Complete? Accurate, and shall not omit relevant information or provide false information.
(3) Establish a franchisor filing system. Because it is the civil right of the parties to engage in franchise activities, it is not appropriate for the government to implement administrative licensing, but it is necessary to supervise and manage its business activities in order to maintain market order. In order to facilitate the timely understanding of the competent commercial authorities? Master the number of franchisees and other related information, and standardize franchise activities in a targeted manner? Supervision, in order to help potential investors understand the basic situation of franchisers, make appropriate investment decisions, and help to form social supervision of franchisers, the regulations set up a franchisor filing system. It is clearly stipulated that the franchisor shall file with the competent commercial department within 15 days from the date when the franchise contract is concluded for the first time, and the filing procedures and documents to be submitted at the time of filing are specified? Information. The competent commercial department has received the documents that meet the requirements submitted by the franchisor? After the information, it shall be put on record, notify the franchisor, and publish the list of franchisers for the record on the government website and update it in time.
(4) The Ordinance provides for the regulation of franchise contracts. Franchise contract is the basis to define the rights and obligations between franchisor and franchisee. Many problems and disputes in the practice of franchise activities are directly related to the irregularity of franchise contracts. To this end, the regulations stipulate in three aspects: first, the franchisor and the franchisee should conclude a franchise contract in writing and clarify the main contents of the franchise contract; Second, referring to the practice of other countries, it is stipulated that the franchisor and the franchisee should stipulate in the franchise contract that the franchisor can unilaterally terminate the contract within a certain period after the contract is concluded; Third, the franchise period stipulated in the franchise contract should be
(5) The code of conduct of franchisers and franchisees is stipulated. According to the characteristics of franchising activities and the main problems existing in practice, the Regulations focus on the code of conduct of franchisers. For example, the franchisor shall provide the franchisee with a franchise operation manual, and the franchisor shall use the sales promotion collected from the franchisee according to the purposes agreed in the contract? Publicity expenses, franchisees are promoting? There must be no cheating in the publicity activities? Misleading behavior, etc. The franchisor's code of conduct and articles of association have also made corresponding provisions, mainly that the franchisor shall not transfer the franchise to others without the franchisor's consent, and the franchisor shall not disclose or allow others to use the franchisor's business secrets in his possession.
(III) Other laws on franchising in China: China implemented the Measures for the Administration of Information Disclosure of Commercial Franchising on May 1 2007 and the Measures for the Administration of Filing of Commercial Franchising on February 1 2002, which further stipulated the information disclosure and filing management of franchising.