มาตรการตรวจสอบเนื้อหาสัญญาแฟรนไชส์โดยรัฐก่อนลงนามสัญญา

Abstract

This independent study examines the problems and limitations of Thai law concerning the protection and review of franchise agreement content in the pre-contractual stage. It analyses the extent to which existing general legislation, namely the Civil and Commercial Code, the Unfair Contract Terms Act and the Trade Competition Act, is capable of scrutinising the substance of franchise agreements prior to execution and whether it affords adequate protection to the franchisee. The study further examines criteria adopted in other jurisdictions for prescribing mandatory and prohibited terms to inform the development of dedicated franchise legislation or regulatory measures in Thailand. The study finds that current Thai law suffers from significant limitations in protecting franchise agreement substance. No dedicated mechanism exists for the regulatory review of contractual terms by a state authority before the parties conclude an agreement. Consequently, protecting franchisees' rights relies on general laws and postdispute remedies, which fails to address the unequal bargaining power inherent to the relationship. A comparative analysis of jurisdictions with dedicated franchise legislation, including the United States, China, and Malaysia, reveals that these legal systems expressly prescribe mandatory clauses, prohibited terms, and state-administered mechanisms for reviewing franchise content. Such frameworks materially reduce unfair contractual terms and promote transparency and fairness. Based on these findings, the author proposes strengthening the existing Trade Competition Commission’s guidelines on franchise businesses by broadening the list of minimum contractual terms and pre-contractual disclosures, while specifying certain prohibited clauses that should be rendered void by law. Furthermore, the author recommends conferring an explicit mandate on the Trade Competition Commission to review the completeness of franchise documentation and contractual terms prior to execution. Finally, the study suggests developing official guidance materials identifying recommended and undesirable clauses, alongside training programs to provide practical legal assistance to franchisors and franchisees in their pre-contractual negotiations.