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Chapter V - Intermediary activities in commerce

* This translated version is originated from Ministry of Justice and for reference only.

Section 1. REPRESENTATION OF TRADERS

Article 141.- Representation of traders

1. Representation of traders means an activity whereby a trader (referred to as representative) is authorized by another trader (referred to as nominator) to conduct commercial activities in the name and under the instructions of the latter for remuneration.

2. Where a trader nominates his/her/its personnel to act as his/her/its representative, the provisions of the Civil Code shall apply.

Article 142.- Contracts for representation of traders

Contracts for representation of traders must be made in writing or in other forms of equivalent legal validity.

Article 143.- Scope of representation

Parties may agree that the representative may conduct part or all of commercial activities within the scope of operation of the nominator.

Article 144.- Duration of representation of traders

1. The duration of representation is agreed upon by the parties.

2. Where no agreement is reached, the duration of representation shall expire when the nominator notifies the representative of the termination of the representation contract, or the representative notifies the nominator of the termination of the contract.

3. Unless otherwise agreed, if the nominator unilaterally notifies the termination of the representation contract according to Clause 2 of this Article, the representative may request the nominator to pay an amount of remuneration for the signing by the nominator of contracts with customers with whom the representative has negotiated and to pay other remunerations which the representative would otherwise have been entitled to.

4. Where the duration of representation expires according to Clause 2 of this Article at the request of the representative, the representative shall forfeit the right to remuneration for transactions which he/she/it would otherwise have been entitled to unless otherwise agreed upon by the parties.

Article 145.- Obligations of representatives

Unless otherwise agreed, a representative shall have the following obligations:

1. To conduct commercial activities in the name and for the interest of the nominator;

2. To notify the nominator of opportunities and results of performance of authorized commercial activities;

3. To follow instructions of the nominator if such instructions do not violate the provisions of law;

4. To refrain from conducting commercial activities in his/her/its own name or in the name of a third party within the scope of representation;

5. To refrain from disclosing or supplying to other people secrets related to commercial activities of the nominator during the period of representation and within two years after the termination of the representation contract;

6. To preserve assets and documents assigned for performing activities of representation.

Article 146.- Obligations of nominators

Unless otherwise agreed, a nominator shall have the following obligations:

1. To notify the representative immediately of the signing of contracts negotiated by the representative, the performance of contracts entered into by the representative, and the acceptance or non-acceptance of activities conducted by the representative outside the scope of representation;

2. To supply assets, documents and information necessary for the representative to perform activities of representation;

3. To pay remuneration and other reasonable expenses to the representative;

4. To notify promptly the representative of the impossibility of entering into or performing the contract within the scope of representation.

Article 147.- Right to enjoy representation remuneration

1. Representatives shall enjoy remunerations for contracts entered into within the scope of representation. The right to enjoy remunerations arises from the time agreed upon by the parties in representation contracts.

2. Where it is not agreed upon, the remuneration rate for the representative shall be determined according to Article 86 of this Law.

Article 148.- Payment of incurred expenses

Unless otherwise agreed, representatives shall have the right to claim the payment of reasonable expenses incurred for the performance of representation activities.

Article 149.- Lien

Unless otherwise agreed, representatives shall have lien over assets and documents assigned to them to secure the payment of remunerations and expenses which are due.

Section 2. COMMERCIAL BROKERAGE

Article 150.- Commercial brokerage

Commercial brokerage means a commercial activity whereby a trader acts as an intermediary (referred to as broker) between parties selling and purchasing goods or providing commercial services (referred to as principals) in the course of negotiations and entering into contracts for sale and purchase of goods or provision of services and shall be entitled to a remuneration under a brokerage contract.

Article 151.- Obligations of commercial brokers

Unless otherwise agreed, a commercial broker shall have the following obligations:

1. To preserve samples of goods and documents assigned for the performance of brokerage activities, and to return them to the principals after the completion of brokerage;

2. Not to disclose or supply information to the detriment of the interests of the principals;

3. To be responsible for the legal status, but not for the solvency, of the principals;

4. Not to take part in the performance of contracts between the principals, except where so authorized by the principals.

Article 152.- Obligations of principals

Unless otherwise agreed, a principal shall have the following obligations:

1. To supply information, documents, necessary means related to goods and services;

2. To pay brokerage remuneration and other reasonable expenses to the broker.

Article 153.- The right to enjoy brokerage remuneration

1. Unless otherwise agreed, the right to enjoy brokerage remuneration arises from the time the principals enter into contracts.

2. Where there is no agreement, brokerage remuneration rates shall be determined according to the provisions of Article 86 of this Law.

Article 154.- Payment of expenses incurred in relation to brokerage

Unless otherwise agreed, principals must pay all reasonable expenses incurred in relation to brokerage to brokers, even where the brokerage does not bring about any results for principals.

Section 3. SALE AND PURCHASE OF GOODS BY MANDATED DEALERS

Article 155.- Purchase and sale of goods by mandated dealers

Purchase and sale of goods by mandated dealers mean commercial activities whereby the mandatory conducts the purchase and sale of goods in his/her/its own name under terms agreed upon with the mandator and is entitled to receive mandate commission.

Article 156.- Mandatories

A mandatory for purchase and sale of goods is a trader dealing in goods which are consistent with the mandated goods and conducting the purchase and sale of goods under terms agreed upon with the mandator.

Article 157.- Mandators

A mandator of purchase and sale of goods may, or may not, be a trader that authorizes a mandatory to conduct the purchase and sale of goods at his/her/its request and pays a commission.

Article 158.- Mandated goods

All goods which are lawfully circulated may become the subject matter of a mandated sale and purchase.

Article 159.- Mandate contracts

Mandate contracts for purchase and sale of goods must be made in writing or in other forms of equivalent legal validity.

Article 160.- Sub-mandate to a third party

A mandatory shall not be allowed to sub-mandate a third party to perform the signed mandate contract for purchase and sale of goods, except where it is so approved in writing by the mandator.

Article 161.- Multilateral mandate

A mandatory may accept the mandate for purchase and sale of goods from different mandators.

Article 162.- Rights of mandators

Unless otherwise agreed, mandators shall have the following rights:

1. To request mandatories to supply adequate information on the performance of mandate contracts;

2. Not to bear responsibility in cases where mandatories commit law violations, except for cases specified in Clause 4, Article 163 of this Law.

Article 163.- Obligations of mandators

Unless otherwise agreed, mandators shall have the following obligations:

1. To provide information, documents and means necessary for the performance of mandate contracts;

2. To pay mandate commissions and other reasonable expenses to mandatories;

3. To hand over money and goods as agreed upon;

4. To bear joint responsibility in cases where mandatories commit law violations which are attributable to acts of mandators or intentional law-breaking acts of the parties.

Article 164.- Rights of mandatories

Unless otherwise agreed, mandatories shall have the following rights:

1. To request mandators to provide information and documents necessary for the performance of mandate contracts;

2. To receive mandate commissions;

3. Not to bear responsibility for goods handed over to mandators strictly under agreement.

Article 165.- Obligations of mandatories

Unless otherwise agreed, mandatories shall have the following obligations:

1. To conduct the purchase and sale of goods as agreed upon;

2. To notify mandators of matters related to the performance of mandate contracts;

3. To follow instructions of mandators as agreed upon;

4. To preserve assets and documents assigned to them for the performance of mandate contracts;

5. To keep secret information related to the performance of mandate contracts;

6. To hand over money and goods as agreed upon;

7. To bear joint responsibility for law violation acts of mandators, in cases where such law violation acts are partially attributable to their own faults

Section 4. COMMERCIAL AGENCY

Article 166.- Commercial agency

Commercial agency means a commercial activity whereby the principal and the agent agree that the agent, in its own name, sells or purchases goods for the principal or provides services of the principal to customers for remuneration.

Article 167.- Principals and agents

1. Principals are traders that deliver goods to agents for sale or provide money to agents for purchase of goods, or traders that authorize the provision of services to service-providing agents.

2. Agents are traders that receive goods to act as sale agents or receive money to act as purchase agents or accepts the authorization to provide services.

Article 168.- Agency contracts

Agency contracts must be made in writing or in other forms of equivalent legal validity.

Article 169.- Forms of agency

1. Off-take agency is a form of agency whereby the agent definitely sells or purchases a specific quantity of goods or provides a full service for the principal.

2. Exclusive agency is a form of agency whereby a sole agent is authorized by the principal to sell or purchase one or more goods items or to provide one or more types of services within a given geographical area.

3. General goods sale or purchase or service provision agency is a form of agency whereby an agent organizes a network of sub-agents to sell or purchase goods, or provide services for the principal.

The general agent represents the network of sub-agents. Sub-agents operate under the management and in the name of the general agent.

4. Other forms of agency agreed upon by the parties.

Article 170.- Ownership right in commercial agency

The principal is the owner of goods or money delivered to the agent(s).

Article 171.- Agency remuneration

1. Unless otherwise agreed, agency remuneration shall be paid to agents in the form of commission or price margin.

2. Where principals fix goods purchase or sale prices or service charge rates, agents shall enjoy commissions calculated in percentage of such goods purchase or sale prices or service charge rates.

3. Where principals do not fix goods purchase or sale prices or service charge rates but fix only agency prices, agents shall enjoy price margins. Price margin is determined to be the difference between goods purchase or sale price or service charge rate and the price fixed by the principals for the agent.

4. Where the parties do not agree upon the agency remuneration level, the remuneration level shall be calculated as follows:

a/ The actual remuneration level which has been previously paid by/to parties;

b/ Where Point a of this Clause cannot apply, the agency remuneration level shall be the average remuneration level applicable to the same type of goods or service paid by the principal to other agents;

c/ Where Points a and b of this Clause cannot apply, the agency remuneration level shall be the ordinary remuneration level applicable to the same type of goods or service in the market.

Article 172.- Rights of principals

Unless otherwise agreed, principals shall have the following rights:

1. To fix prices of goods purchased or sold or charge rates of services provided to customers under agency;

2. To fix agency prices;

3. To request agents to take security measures as provided for by law;

4. To request agents to make payments or deliver goods under agency contracts;

5. To inspect and supervise the performance of contracts by agents;

Article 173.- Obligations of principals

Unless otherwise agreed, principals shall have the following obligations:

1. To guide, supply information to, and facilitate, agents to perform agency contracts;

2. To bear responsibility for quality of goods of goods sale or purchase agents, and quality of services of service-providing agents;

3. To pay remuneration and other reasonable expenses to agents;

4. To return to agents their assets used as security (if any) upon the termination of agency contracts;

5. To bear joint responsibility for law violation acts of agents if such law violation acts are partly attributable to their faults.

Article 174.- Rights of agents

Unless otherwise agreed by the parties, agents shall have the following rights:

1. To enter into agency contracts with one or more principals, except for cases specified in Clause 7, Article 175 of this Law;

2. To request principals to deliver goods or money under agency contracts; to take back assets used as security (if any) upon the termination of agency contracts;

3. To request principals to guide, supply information and create other related conditions for the performance of agency contracts;

4. To decide on goods sale prices or service charge rates for customers, for off-take agents;

5. To enjoy remunerations and other lawful rights and interests brought about by agency activities.

Article 175.- Obligations of agents

Unless otherwise agreed, agents shall have the following obligations:

1. To purchase or sell goods or provide services to customers at prices or charge rates fixed by principals;

2. To comply strictly with agreements on handover and receipt of money and goods with principals;

3. To take security measures for performance of civil obligations as provided for by law;

4. To pay to principals any proceeds of the sale of goods, for sale agents; to deliver purchased goods to principals, for purchase agents; or to pay service charges to principals, for service-providing agents;

5. To preserve goods after the receipt thereof, for sale agents, or prior to the delivery thereof, for purchase agents; to bear joint responsibility for quality of goods of purchase or sale agents or quality of services of service-providing agents in cases where they are at fault;

6. To submit to inspection and supervision by principals, and to report to principals on their agency activities;

7. Where it is specified by law that an agent shall be allowed to enter into an agency contract with a principal for a certain type of goods or service, such provision of law must be complied with.

Article 176.- Payment in agency activities

Unless otherwise agreed, payments for goods, payment of service charges and payment of agency remunerations shall be made in installments after agents complete the purchase or sale of a specific quantity of goods or the provision of a specific volume of services.

Article 177.- Duration of agency

1. Unless otherwise agreed, the duration of agency shall expire only after a reasonable period of time which must be at least 60 days after either party to the agency contract notifies the other party of the termination of such agency contract.

2. Unless otherwise agreed, if the principal notifies the termination of the agency contract according to the provisions of Clause 1 of this Article, the agent shall have the right to request the principal to pay a compensation for the period of time during which it has acted as an agent for such principal.

The value of such compensation shall be an average one-month's agency remuneration for each year the agent has acted as an agent for the principal. Where the duration of agency is less than one year, such compensation shall be equal to an average one-month's agency remuneration during the agency term.

3. Where an agency contract is terminated at the request of the agent, the agent shall not have the right to request the principal to pay compensation for the period of time during which it has acted as an agent for the principal.

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