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最高人民法院发布7件商业特许经营典型案例_我的网站

一 |     Pope Francis’s July 24-29 tour of Canada included a long-overdue apology to Native Canadians for the Catholic Church’s central role in abuses perpetrated at the country’s network of residential schools.,The notorious boarding school system was funded and organized by Canada’s federal government and run by Catholic and Protestant churches. It oversaw the forceful and systematic assimilation, abuse, enslavement and even murder of Native Canadian boys and girls from the mid-19th to late 20th centuries. It was a particularly brutal and cruel, but by no means first or only, tool of oppression experienced by indigenous peoples during the European colonialists’ history in North America.,“I am here because the first step of my penitential pilgrimage among you is that of again asking forgiveness, of telling you once more that I am deeply sorry. Sorry for the ways in which, regrettably, many Christians supported the colonizing mentality of the powers that oppressed the indigenous peoples. I am sorry. I ask for forgiveness, in particular, for the ways in which many members of the Church and of religious communities cooperated, not least through their indifference, in projects of cultural destruction and forced assimilation promoted by the governments of that time, which culminated in the system of residential schools,” Francis said at the former site of the Ermineskin Residential School in Maskwacis, Alberta on July 25.,The pope assured his apology was “only the first step” of “a serious investigation into the facts of what took place in the past and to assist the survivors of the residential schools to experience healing from the traumas they suffered.”,Pope Francis Holds Mass in Quebec During Visit to Canada to Apologize to Indigenous Community28 July, 13:01 GMT,Assimilation,More than 150,000 Native children passed through the residential school system over its 160+ year history. Children were prohibited, often by physical punishment, from speaking their native languages, having their ancestors’ religious concepts replaced with Christianity, and facing their cultural traditions and social norms substituted for those of the colonialists.,The first experimental residential school was opened in Brantford, Ontario, in 1833, but the system only became a federally-mandated, national, industrial-scale tool of subjugation in the 1880s after Sir John A Macdonald, Canada’s first prime minister, ordered the commissioning of a report on the residential school system model being operated in the United States.,The report, entitled ‘Industrial Schools for Indians and Half-Breeds’, became the basis for Canadian state-church cooperation in solving the Indian “problem” by removing indigenous children from the influences passed down to them by their communities and family units.,© WikipediaIndian Residential School, (Fort) Resolution, Northwest TerritoriesIndian Residential School, (Fort) Resolution, Northwest Territories© Wikipedia,Along with forced assimilation, students were subjected to other forms of torment, including sexual abuse by priests and teachers, forced labor, and slavery. As of 2021, the National Center for Truth and Reconciliation has been able to identify 4,117 documented deaths of First Nations, Inuit and Metis children in residential schools. However, new graves continue to be discovered, and former Truth and Reconciliation Commissioner Murray Sinclair estimates that more than 6,000 children may have died in the residential school system over the period of its operation.,In his bombshell 2016 book “Murder by Decree: the Crime of Genocide in Canada,” writer and former United Church of Canada reverend Kevin Annett challenged the NCTR over its conservative estimates on the residential school deaths, detailing the commission’s suppression of eyewitness testimony and archival documentation, and estimating that the true death toll may have run in the tens of thousands. Annett documented how the system included a monthly “death quota” and involved the use of germ warfare, and believes that as many as 50,000 children may have perished in the residential school network.,Exploitation,Residential schools were by no means the first instance of settlers’ mistreatment of Canada’s indigenous population, with Britain’s victory against the French in the North American theater of the Seven Years’ War of 1754-1763 sealing their fate of subjugation and colonial land grabs, as well as the relentless and cynical exploitation of the most loyal tribes.,At the conclusion of the war in 1763, King George III issued a royal proclamation declaring all lands west of the Appalachian Mountains and the colonies of what would ultimately become the early United States as Native territories, outlawing their settlement or purchase by colonialists, and requiring treaty negotiations for any changes to the arrangement. In Canada –organized from the remnants of New France under the name ‘Quebec’, lands to the west and north of the colony were proclaimed Indian territory.,Centuries later, scholars continue to fiercely debate the correct interpretation of the proclamation, and whether it was meant as a permanent guarantee of Native rights to lands beyond the then-existent colonies, or a mere opportunity for colonists to catch their breath before continuing an aggressive push west.,© Photo"The British Governments in Nth America Laid down agreeable to the Proclamation of Octr. 7, 1763," Gentleman’s Magazine (London, 1763)"The British Governments in Nth America Laid down agreeable to the Proclamation of Octr. 7, 1763," Gentleman’s Magazine (London, 1763)© Photo,Even as colonists repeatedly broke the 1763 treaty’s terms throughout the rest of the 18th and 19th centuries through wars of aggression and by taking advantage of divisions within Native tribes through cunning and trickery, many Natives remained loyal to the Crown.,Perhaps nowhere was this better exemplified than in the story of Joseph Brant, an 18th-century Mohawk military and political leader who led his warriors in defense of the British Empire during the American Revolutionary War of 1775-1783, and whose efforts proved decisive in halting an American advance into what is now Canada.,In return for the loyalty shown by Brant and his fellow Mohawks, Quebec Governor Sir Frederick Haldimand promised that after the war, his people would be granted more than 8,090 square km of land around the Grand River Basin in southern Ontario. However, after the war ended in 1783, the settlers would gradually chip away at their commitments, with the Native-administered area now known as the Six Nations Reserve shrinking to just 183 square km of land, two percent of what Brant was originally promised.,Brant’s story was repeated in one form or another throughout the 19th century, and today just 0.36 percent of Canada’s total landmass has reserve status for its Native communities.,© Wikipedia / National Archives of CanadaJoseph Brant, watercolour by William ArmstrongJoseph Brant, watercolour by William Armstrong© Wikipedia / National Archives of Canada,Discrimination,Notwithstanding decades of recognition by successive governments of the historical injustices done to indigenous people, and lip service to improving their social and economic standing, Canada’s community of 1.67 million Natives continues to struggle with a broad spectrum of problems more typically characterizing countries of the so-called Third World than of a thriving, highly developed First World nation.,The Council of Canadians estimates that some 73 percent of First Nations’ water systems are at medium or high risk of contamination, with dozens of indigenous communities still lacking basic access to clean drinking water, despite billions of dollars in aid doled out by Ottawa every year to developing countries, and over a billion dollars in support sent to Kiev this year amid the Ukrainian security crisis.,Along almost every social indicator, from poverty and access to housing to crime, education, and healthcare, Native communities continue to rank below other Canadians. Nowhere is this exemplified better than in average life expectancy. While other Canadian men and women live on average to an age of 79 and 84 years, respectively, among the First Nations, Metis and Inuit, these figures drop to 72.5 for men and 77.7 for women.。    　　讯 最高人民法院8月12日发布7件商业特许经营典型案例，引导和规范经营主体诚信合规经营，促进特许经营健康有序发展。　　商业特许经营（以下称特许经营）俗称“加盟连锁”，是指拥有注册商标、企业标志、专利、专有技术等经营资源的企业（以下称特许人），以合同形式将其拥有的经营资源许可其他经营者（以下称被特许人）使用，被特许人在统一的经营模式下开展经营并支付费用的经营活动，常见于餐饮、零售、酒店、教育培训、快递物流、美容美发等民生领域。从司法实践看，特许人夸大宣传、盲目扩张，被特许人忽视风险、跟风投资等问题一定程度存在，矛盾纠纷日益增多。　　最高人民法院发布的这批案例具有以下特点：　　一是准确认定特许经营法律关系。特许人为规避《商业特许经营管理条例》的适用，经常将特许经营合同拆分为数份合同或包装为其他类型合同。案例一中，人民法院穿透合同外在形式，审查当事人之间的权利义务关系是否符合特许经营的法律特征，依法认定当事人之间成立特许经营合同关系，为特许经营合同性质的认定提供了明确指引。

二 | 　　二是依法保障被特许人合法权益。在特许经营活动中，特许人与被特许人信息不对称、签约能力不对等，被特许人处于相对弱势地位，容易发生权利义务失衡。

三 | 案例二中，虽然涉案合同未明确约定被特许人在特许经营合同订立后一定期限内可以单方解除合同（俗称“冷静期”条款），但人民法院明确被特许人享有的“冷静期”单方解除权属于法定权利，被特许人可以在经营资源尚未被实际利用的合理期限内依法行使。案例五中，特许人在合同履行期间被撤销备案资格，履约能力明显弱化，人民法院依法支持了被特许人解除合同的诉请。

四 | 　　三是督促特许人全面履行法定义务。特许人开展经营活动应当遵守《中华人民共和国民法典》《商业特许经营管理条例》等法律规范。案例三中，特许人系个体工商户而非企业主体，不具备特许人法定资格，人民法院认定其作为特许人签订的特许经营合同无效，有助于遏制无资质主体违规开展加盟活动。案例四中，特许人进行虚假宣传使被特许人产生错误判断，人民法院认定特许人的行为构成欺诈，依法撤销涉案合同，对“套路加盟”行为进行有效规制。

五 | 　　四是严厉打击特许经营领域违法犯罪行为。对于特许人存在传销、诈骗、违规营销等违法行为，充分运用行政执法、刑事司法手段，强化特许经营领域综合治理。

六 | 案例六中，特许人在不具备“两店一年”条件的情况下违规开展特许经营活动，被商务主管部门予以行政处罚，人民法院依法认定行政行为符合法律规定。

七 | 案例七中，被告人在不具备特许经营资质及特许经营资源的情况下，诱骗被害人签订加盟合同、骗取加盟费，人民法院认定被告人构成合同诈骗罪，有利于从源头上防范矛盾纠纷的发生，引导市场主体诚信守法经营。　　下一步，人民法院将充分发挥审判职能作用，不断完善特许经营案件裁判规则，助力营造市场化、法治化、国际化一流营商环境。版权申明：凡注有“”或电头为“”的稿件，均为独家版权所有，未经许可不得转载或镜像；授权转载必须注明来源为“”，并保留“”的电头。

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