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  • Title
    What is the meaning of “activities accompanying cutting or backfiling of not less than 2 m of ground” among the activities subject to permission for development activities? (related to Article 51(2)4 of the Enforcement Decree of the National Land Planning and Utilization Act)
  • Content

    1. Question
    What does “activities accompanying cutting or backfiling of not less than 2 m of ground” prescribed in Article 51(2)4 of the Enforcement Decree of the National Land Planning and Utilization Act mean? Does it mean 1) where not less than 2 m of ground is altered in form and quality compared to before the alteration in the process of cutting and backfiling the ground; or 2) where not less than 2 m of ground is either cut or backfiled?

    2. Answer
    “Activities accompanying cutting or backfiling of not less than 2 m of ground” prescribed by Article 51(2)4 of the Enforcement Decree of the National Land Planning and Utilization Act means activities where 2 m or more of ground is either cut or backfiled.

    3. Reason
    Article 56(1)2 of the National Land Planning and Utilization Act (“National Land Planning Act”) prescribes that changes in the form and quality of any land are subject to permission for development activities, while excluding changes in the form and quality of land prescribed by Presidential Decree as cases for cultivation. Also, the main text of Article 51(2)4 of the Enforcement Decree of the Act prescribes that alteration of the form and quality of land prescribed by Presidential Decree means an alteration of the form and quality of land for the admixture of soil or soil preparation for growing crops in developed farmland, the improvement of soil fertility and the improvement of productivity of farmland, and for the installation of water pumping or drainage facilities that does not fall under the case of “where cutting or backfiling of not less than 2 m of ground is accompanied” as an activity that is exempted from permission for development activities. Therefore, changes in the form and quality of land accompanying cutting or backfiling of not less than 2 m of ground is subject to permission for development activities.

    Article 51(1)3 of the Enforcement Decree of the National Land Planning Act defines alteration of the form and quality of land as altering the form and quality of land by cutting, backfiling, levelling, paving, etc. of the ground. And because the comma is grammatically used to list three or more items that fall under a certain category, cutting of the ground and backfiling of the ground should be considered a method of altering the form and quality of land, just like leveling of the ground and paving of the ground. Therefore, 'alteration of the form and quality of land by cutting of the ground' and 'alteration of the form and quality of land by backfiling of the ground' should both be considered 'alteration of the form and quality of land'.

    If so, it is reasonable to conclude that the main text of Article 51(2)4 of the Enforcement Decree of the National Land Planning Act, which prescribes that the alteration of the form and quality of land accompanying cutting or backfiling of not less than 2 m of ground is subject to permission for development activities, means that the relevant authority shall review and decide whether to permit the alteration of the form and quality of land where either the cutting or backfiling of ground measures 2 m or more, even if the alteration is for the admixture of soil or soil preparation for growing crops in developed farmland, the improvement of soil fertility and the improvement of productivity of farmland.



    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail. 

  • Title
    If a facility subject to permission or report of installation of air pollutant emission facility or noise and vibration generation facility commissions the treatment of all of its wastewater, is the facility a type 2 neighborhood living facility? (related to attached Table 1 of the Enforcement Decree of the Building Act, etc.)
  • Content

    1. Question
    If a facility is subject to permission or report of installation of emission facilities under the Clean Air Conservation Act or the Noise and Vibration Control Act and permission or report of wastewater discharging facility under the Water Environment Conservation Act, and also commissions the treatment of all of its wastewater, does the facility fall under a type 2 neighborhood living facility under item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act?

    2. Answer
    Yes, in this case, the facility qualifies as a type 2 neighborhood living facility under item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act.

    3. Reason
    In item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act, which prescribes the types of buildings that fall under each subparagraph under Article 2 (2) of the same Act, it is stated that if a facility is subject to permission or report of emission facilities under the Clean Air Conservation Act, the Water Environment Conservation Act or the Noise and Vibration Control Act, the facility is considered a type 2 neighborhood living facility if it commissions the treatment of all of its wastewater discharged from the facility.

    Item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act was partially amended as presidential decree no. 30145 on October 22, 2019. With the amendment, the phrase “a facility subject to permission or report of installation of an emission facility or a facility manufacturing precious metals, accessories and related products which commissions the treatment of all of its generated wastewater” was changed. Also, even if a facility is an emission facility subject to permission or report pursuant to the Clean Air Conservation Act or the Noise and Vibration Control Act, Articles 16 (1), 26 (1) of the Clean Air Conservation Act and Article 7 (1) and Article 9 of the Noise and Vibration Control Act each prescribe matters related to the allowable emission standard and the installation of prevention facilities.

    Therefore, it should be considered that item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act is based on the conclusion that if the sum of the floor area of a facility used for manufacture, processing or repair of goods occupies less than 500 m2 in the same building, it can be classified as a type 2 neighborhood living facility based on the method of treatment of wastewater.

    Consequently, a facility that is subject to permission or report of installation of emission facility pursuant to the Clean Air Conservation Act or the Noise and Vibration Control Act and permission or report of wastewater emission facility under the Water Environment Conservation Act, which also commissions the treatment of all of its wastewater, should be considered a type 2 neighborhood living facility under item p (2) of subparagraph 4 of attached Table 1 of the Enforcement Decree of the Building Act.



    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail. 
     

  • Title
    What is the standard for installation of entrances, etc. to enable the entry of persons with disabilities, etc.?
  • Content

    Title: What is the standard for installation of entrances, etc. to enable the entry of persons with disabilities, etc.? (related to attached Table 2 of the Enforcement Decree of the Act on the Guarantee of Convenience Promotion of Persons with Disabilities, Senior Citizens, Pregnant Women and Nursing Mothers, etc.)


    1. Question
    If there are one or more offices primarily for public use in a building where it is required to install an entrance (including doors; hereafter the same shall apply) taking into consideration the effective width, form and attachments so that persons with disabilities are able to enter, which of the following installment standards should the facility owner, etc. apply?


    - Install the main entrance of the building and one or more entrances in each office in a way that enables the entry of persons with disabilities, etc. 
    - Install the main entrance of the building and an entrance in one or more offices in a way that enables the entry of persons with disabilities, etc.
    - Install the main entrance of the building or one or more entrances of each office in a way that enables the entry of persons with disabilities, etc.


    2. Answer
    The facility owner, etc. should install the main entrance of the building and one or more entrances in each office primarily for public use in a way that enables the entry of persons with disabilities, etc.


    3. Reason
    The purpose of the Act on the Guarantee of Convenience Promotion of Persons with Disabilities, Senior Citizens, Pregnant Women and Nursing Mothers (hereafter “the Act”) is to increase participation by persons with disabilities, senior citizens, pregnant women, etc., in social activities and to promote their welfare by ensuring their safe and convenient use of facilities and equipment and their easy access to information in daily life (Article 1). To guarantee that persons with disabilities, etc. shall have the right to use facilities and equipment which persons with no disabilities use, on equal terms and to have free access to information (Article 4), the Act prescribes that the basic principle of installation of amenities is that the facility owner, etc. shall install amenities for persons with disabilities, etc. to travel the shortest distance to public buildings and public facilities by the most convenient means possible when they use the buildings and facilities (Article 3), and imposes facility owners, etc. with obligations to install, maintain and manage amenities complying with standards for installation under Article 8 of the Act (Article 9).


     In addition, in subparagraph 3 (a) 4 of attached Table 2 of the Enforcement Decree of the Act which prescribes the types of amenities to be installed in each facility and the standards for installation, “entrances, etc. where persons with disabilities, etc. are able to enter” is included in the scope of amenities that should be installed in public buildings and public facilities. Also, it is prescribed that the main entrance of a building and at least one entrance to offices, etc. primarily for public use in the building should be installed taking into consideration the effective width, form and attachments that enable the entry of persons with disabilities, etc.


     The purpose of such installation standards is to ensure the accessibility of persons with disabilities, etc. as much as possible so that such persons can enter offices, etc. primarily for public use in buildings as well as public buildings and public facilities without inconvenience. In particular, "offices, etc." in the above stated regulation is an example of places primarily for public use, such as toilets as well as offices. Considering this, in a place primarily for public use such as offices, etc., it is reasonable to interpret in accordance with the Act that at least one entrance among the entrances to the abovementioned places should be installed in a way that enables the entry of persons with disabilities, etc.


     In addition, in the former part of subparagraph 3 (a) 4 of attached Table 2 of the Enforcement Decree of the Act, "the main entrance of a building" and "at least one entrance to offices, etc. primarily for public use in the building" are connected with "and", and therefore the main entrance of a building is always included in this case.


     In this regard, the facility owner, etc. should install the main entrance of the building and one or more entrances in each office primarily for public use in a way that enables the entry of persons with disabilities, etc.



    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail. 
     
     

  • Title
    What is the scope of “immediate upper tier contractor” pursuant to Article 9-2 (2) 2 of the Enforcement Rule of the Wage Claim Guarantee Act?
  • Content

    1. Question
    Does “immediate upper tier contractor liable for the wages jointly and severally with the subcontractor concerned pursuant to Article 44-2 of the Labor Standards Act” as prescribed in Article 9-2 (2) 2 of the Enforcement Rule of the Wage Claim Guarantee Act include the immediate upper tier contractor who is held liable for a subcontractor's failure to pay wages to employees and is not a constructor pursuant to subparagraph 7 of Article 2 of the Framework Act on the Construction Industry?


    2. Answer
    No, the immediate upper tier contractor who is recognized as liable for a subcontractor’s failure to pay wages to employees and is not a constructor pursuant to subparagraph 7 of Article 2 of the Framework Act on the Construction Industry is not included in the scope of immediate upper tier contractor in this case.


    3. Reason
    As delegated by Article 12 (3) of the Wage Claim Guarantee Act, Article 9-2 (2) 2 of the Enforcement Rule of the same Act stipulates the procedure, method, etc. of issuance of documents confirming overdue wages, employer in arrears, etc. Under this Article, the head of the local employment and labor office should check the items under the above Article such as name and location of the place of business, business registration number, etc. and issue a certificate of confirmation in attached Table 7-3 of the said Enforcement Rule. The Article also prescribes that employers in arrears include the immediate upper tier contractor who is held liable for the wages jointly and severally with the subcontractor concerned pursuant to Article 44-2 of the Labor Standards Act.


    Therefore, information about the employer that should be recorded in the certificate of confirmation of overdue wages and the employer in arrears issued by the head of a local employment and labor office should clearly be about the employer in arrears and the immediate upper tier contractor liable for the wages jointly and severally with a subcontractor concerned pursuant to Article 44-2 of the Labor Standards Act.


    Under Article 44-2 of the Labor Standards Act which stipulates the regulations on the joint and several responsibility for payment of wages in the construction business, where a construction project is being carried out through two or more tiers of contract, if a subcontractor that is not a constructor under subparagraph 7 of Article 2 of the Framework Act on the Construction Industry (hereafter “constructor”) fails to pay wages to employees he/she has employed, the immediate upper tier contractor shall have joint and several responsibility for payment of wages to employees employed by the subcontractor (Paragraph 1). Also, Paragraph 2 of the same Article states that when the immediate upper tier contractor under paragraph 1 is not a constructor, the lowest tier constructor among the upper tier contractors shall be deemed the immediate upper tier contractor. In other words, according to the law, persons jointly and severally responsible for the subcontractor’s failure to pay wages in the construction industry are limited to constructors.


    If so, the scope of “immediate upper tier contractor liable for the wages jointly and severally with the subcontractor concerned pursuant to Article 44-2 of the Labor Standards Act” as prescribed in Article 9-2 (2) 2 of the Enforcement Rule of the Wage Claim Guarantee Act is clearly limited to constructors under subparagraph 7 of Article 2 of the Framework Act on the Construction Industry. In this regard, even if the immediate upper tier contractor is liable for a subcontractor’s failure to pay wages, if the immediate upper tier contractor is not a constructor under subparagraph 7 of Article 2 of the Framework Act on the Construction Industry, he/she is not included in the scope of employers in arrears as prescribed by Article 9-2 (2) 2 of the Enforcement Rule of the Wage Claim Guarantee Act.



    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail.
     

  • Title
    What is the scope of the places of business that are subject to joint safety and health checkups (related to Article 64 (2) of the Occupational Safety and Health Act, etc.)?
  • Content

    1. Question
    According to Article 64 (2) of the Occupational Safety and Health Act and Article 82 (2) 1 of the Enforcement Rule of the same Act, where an employee of a related contractor works at the place of business of the contractee, the contractee should conduct a checkup of the safety and health of the place of business (hereafter “joint safety and health checkup”) at least once every two months. In this case, are only employees of a related contractor whose work period is two months or longer subject to the joint safety and health checkup?


    2. Answer
    No, the subject of a joint safety and health checkup is not limited only to employees whose work period is two months or longer.


    3. Reason
    The purpose of the Occupational Safety and Health Act is to maintain and promote the safety and health of employees by preventing industrial accidents by establishing standards on industrial safety and health and clarifying where the responsibility lies, and by creating a comfortable working environment. In regard to the duties of the contractee where an employee of a related contractor works at a place of business of the contractee, the Act prescribes measures such as: safety and health measures necessary for the prevention of industrial accidents of the contractee's employees and the employees of related contractors (Article 63 of the Act); routine inspections of a place of business conducted at least once every two days or once every week depending on the type of business (Article 64 (1) 2 of the Act and Article 80 (1) of the Enforcement Rule of the Act); and joint safety and health checkups by an inspection team comprised of the contractee, related contractor and one employee each from the contractee side and related contractor side (Article 64 (2) of the Act, Article 82 of the Enforcement Rule of the Act).


    In regard to joint safety and health checkups among the abovementioned measures, Article 64 (2) of the Act and Article 82 of the Enforcement Rule of the Act prescribe the minimum frequency of the checkups classified by type of business – at least once every two months for construction and shipbuilding businesses, and at least every quarter for other businesses. However, the Act does not classify the places of business subject to the checkups based on the type of work performed by the related contractors’ employees at the contractee’s place of business and the period of work.


    Also, joint safety and health checkups are conducted to check the appropriateness of the safety and health measures of a place of business under the premise that a related contractor’s employees perform work at the place of business of the contractee. In this regard, if a related contractor’s employee performs work at the place of business of the contractee, joint safety and health checkups should be conducted regardless of his/her work period, and the work period should not determine whether or not a joint safety and health checkup conducted to prevent industrial accidents is necessary.


    In addition, while the contractee should perform a routine inspection of a place of business pursuant to Article 64 (1) 2 of the Act, a joint safety and health checkup should be conducted together by the contractee, related contractor, and the employee of the contractee and related contractor. Because the purpose of this is to have the related contractor’s employees and the contractee inspect their place of business together through the joint safety and health checkup, it cannot be considered that a related contractor’s employee can be excluded from the checkup depending on his/her period of work.


    Therefore, if a related contractor’s employees are performing work at the contractee’s place of business at the time of a joint safety and health checkup, all employees are subject to the checkup regardless of how long their work period is.



    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail.

  • Title
    If wastewater is discharged into public waters in a sewage treatment area, which standards for permitting discharge of water pollutants apply? (related to Article 34 of the Enforcement Rules of the Water Environment Conservation Act, etc.)
  • Content

    1. Question

    In the case of a wastewater discharge facility under subparagraph 15 of Article 2 of the Sewerage Act that discharges wastewater into public waters instead of the public sewage system in a sewage treatment area after obtaining the permission of the public sewage management authority pursuant to subparagraph 1 of Article 28 of the same Act from Jan. 1, 2019 to Dec. 31, 2020, which standard should apply to the total nitrogen (T-N) level and the total phosphorus (T-P) level? The standards for effluent water quality in public sewage facilities under subparagraph 1 (a) of attached Table 1 of the Enforcement Rules of the Sewerage Act or the acceptable standards for discharge of wastewater in wastewater discharge facilities under subparagraph 2 item (b) 8 of attached Table 13 of the Enforcement Rules of the Water Environment Conservation Act?


    2. Answer

    n this case, the standards for effluent water quality in public sewage facilities pursuant to attached Table 1 of the Enforcement Rules of the Sewerage Act should be applied to the T-N and T-P level.


    3. Reason

    Where two or more laws with different legislative purposes prescribe a different set of requirements for a specific activity, all of the relevant laws shall apply if the activity meets the requirements in the laws, as long as it is not interpreted that one law exclusively applies with precedence over other laws.


    The purpose of the Water Environment Conservation Act is to prevent harm to citizens’ health and environmental hazards due to water pollution and to appropriately manage and conserve the water environments of public waters (Article 1), while the purpose of the Sewerage Act is to provide for the standards, etc. for the installation and management of the sewerage system for the proper treatment of sewage and foul waste and preserving the quality of public waters (Article 1). The final purpose of the two laws is the same – the preservation of the quality of public waters. However, the two laws differ in terms of the matters that are subject to restriction and the types of restrictions applied. In this regard, if the act of discharging wastewater in a sewage treatment area is subject to the Water Environment Conservation Act and the Sewerage Act, all of the standards prescribed by both laws should be observed in principle.


    Article 27 (1) of the Sewerage Act states that when the service of a public sewerage system is inaugurated in a certain drainage area, sewage produced from the drainage area shall be discharged into the public sewerage system. However, according to subparagraph 1 of Article 28 of the same Act, notwithstanding Article 27 (1), any person who discharges sewage that does not exceed the standards for the effluent water quality from public sewage treatment plants may be exempted from discharging the sewage into the public sewerage system. At the same time, Article 3 (1) 1 of the Enforcement Rules of the above Act and subparagraph 1 (a) of attached Table 1 of the Act prescribe the standards for the effluent water quality including the T-N and T-P levels. Therefore, in the case of wastewater discharge facilities which discharge wastewater into public waters instead of the public sewage system after obtaining the permission of the public sewage management authority pursuant to subparagraph 1 of Article 28 of the Sewerage Act, it is evidently stated by law that the standards for effluent water quality under subparagraph 1 (a) of attached Table 1 of the Enforcement Rules of the same Act should be observed.


    In the ‘note’ section of subparagraph 2 (a) of attached Table 13 of the Enforcement Rules of the Water Environment Conservation Act, which prescribes the acceptable standards for discharge levels of water pollutants from wastewater discharge facilities as delegated by Article 32 (1) of the same Act, it is explicitly stated that for a wastewater discharge facility that discharges wastewater into public waters instead of the public sewage system in a sewage treatment area after obtaining the permission of the public sewage management authority pursuant to subparagraph 1 of Article 28 of the Sewerage Act, the acceptable standards for discharge in public sewage treatment facilities shall apply. However, there are arguments that the standards for effluent water quality prescribed by attached Table 1 of the Enforcement Rules of the Sewerage Act do not apply to this issue because subparagraph 2 (b) 8 of the said attached Table which defines the acceptable standards for discharge applied from Jan. 1, 2019 to Dec. 31, 2020 does not prescribe the application of the Sewerage Act.


    Nevertheless, because both the Sewerage Act and the Water Environment Conservation Act apply to sewage treatment matters such as the discharge of wastewater in sewage treatment areas as mentioned above, it should be considered that the aforementioned parts in the notes of subparagraphs 2 (a) and 2 (b) of attached Table 13 of the Enforcement Rules of the Water Environment Conservation Act are for clarification purposes.


    Conversely, if it is presumed that the standards for effluent water quality in subparagraph 1 (a) of attached Table 1 of the Enforcement Rules of the Sewerage Act do not apply because there is no mention of the application of the Sewerage Act in subparagraph 2 (b) 8 of attached Table 13 of the Enforcement Rules of the Water Environment Conservation Act, the standards for permission of discharge of wastewater into public waters will no longer be observed after the permission is obtained, which is not justifiable because the permission is exceptionally granted on condition that the standards for effluent water quality in public sewage treatment facilities be satisfied.



    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail. 

  • Title
    What is the scope of restrictions on establishment of factories pursuant to Article 7-2 (1) of the Water Supply and Waterworks Installation Act?
  • Content

    1. Question

    In an area where factory establishment is restricted pursuant to Article 7-2 of the Water Supply and Waterworks Installation Act (hereafter “Water Supply Act”) and Article 14-2 of the Enforcement Decree of the same Act, is a factory pre-established in the area as of Nov. 26, 2010 - the day on which the abovementioned regulations were enforced – restricted by the Enforcement Decree of the said Act from increasing its wastewater discharge quantity after obtaining a permission for alteration or reporting alteration pursuant to Article 33 (2) of the Water Environment Conservation Act without expanding the factory or changing its business?


    2. Answer

    Under the Enforcement Decree of the Water Supply Act, there are no restrictions on increasing wastewater discharge quantity after obtaining permission for alteration or reporting alteration pursuant to Article 33 (2) of the Water Environment Conservation Act.


    3. Reason

    Article 7-2 of the Water Supply Act was newly inserted when the Act was partially amended as Act no. 10317 on May 25, 2010 to provide a legal ground for restricting the establishment of factories in the upper regions of water source protection areas, etc. so that contamination of such areas due to accidents in the aforementioned factories can be prevented. Under paragraph 1 of the same Article of the above Act, no factory shall be established in regions prescribed by Presidential Decree, such as upper regions of water-source protection areas, or upper or lower regions of water intake facilities. In other words, this law only places restrictions on the ‘establishment’ of factories in the relevant areas.


    Delegated by Article 7-2 of the Water Supply Act, Article 14-2 of the Enforcement Decree of the said Act defines the scope of the area in which factory establishment is restricted. However, in Article 5 of the addenda of the former Enforcement Decree of the same Act amended by Presidential Decree No. 22506 where the relevant regulation was newly inserted (hereafter “the former Enforcement Decree of the Water Supply Act”), it is stipulated that notwithstanding the amended regulations of the aforementioned Article 14-2, it is permitted to expand a factory or change the type of business of a factory pre-established in an area in which factory establishment is restricted as of Nov. 26, 2010, provided that certain conditions are met.


    But considering that the Industrial Cluster Development and Factory Establishment Act which stipulates matters related to factory establishment, etc. defines “establishment of a factory” as constructing or expanding a factory, the partial permission of the expansion and change of business of a factory pre-established at the time of enforcement of the law under Article 5 of the addenda of the former Enforcement Decree of the Water Supply Act should be seen as a recognition of exceptions to the restrictions on the construction, expansion and change of business of a factory pursuant to Article 7-2 (1) of the Water Supply Act.


    If so, whether or not wastewater discharge quantity can be increased without the establishment of a factory that is restricted in accordance with Article 7-2 (1) of the Water Supply Act cannot be regulated by the addenda of the former Enforcement Decree of the Water Supply Act, and in this regard it is not reasonable to conclude that increasing wastewater discharge quantity in a pre-established factory is restricted on the ground that it is not included in the conducts permitted under the subparagraphs of Article 5 of the aforementioned addenda. Therefore, the increase in wastewater discharge is not restricted under the Enforcement Decree of the Water Supply Act, and whether it is restricted by the Water Environment Conservation Act or other Acts shall not be considered here.
     


    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail. 

  • Title
    Should a company apply for permission to conduct hazardous chemical business for each of its places of business? (related to Article 28 of the Chemical Substances Control Act)
  • Content

    1. Question

    Where a company obtained permission to conduct hazardous chemical business for a business place pursuant to Article 28 of the Chemical Substances Control Act and intends to operate a hazardous chemical business in another place of business for which the said permission was not obtained, does the company have to obtain permission for that place of business as well?


    2. Answer

    Yes, the company has to obtain permission to conduct hazardous chemical business for the place of business for which a permission was not obtained.


    3. Reason
    Subparagraph 8 of Article 2 of the Chemical Substances Control Act (hereafter “the Act”) stipulates that the term “hazardous chemical business” means the business of dealing in hazardous chemicals other than chemicals requiring a permission and prohibited chemicals, and Article 28 (1) of the Act states that any person who intends to conduct hazardous chemical business shall submit: an off-site consequence analysis found to be in conformity with relevant standards and notified as such in regard of the installation and operation of the hazardous chemical handling facility pursuant to Article 23 (2) of the Act; an inspection report found to be appropriate in regard of a hazardous chemical handling facility pursuant to Article 24 (5) of the Act; and a risk management plan found to be appropriate pursuant to Article 41 (4) of the Act where he/she handles chemicals requiring preparation for accidents, as prescribed by Ordinance of the Ministry of Environment. Also, according to Article 28 (2) of the Act, any person who has submitted documents under paragraph (1) of the same Article of the Act shall obtain permission from the Minister of Environment for each type of business after ensuring that each hazardous chemical handling facility, equipment, and technical human resources are in place in conformity with the standards prescribed by Ordinance of the Ministry of Environment.


     First, it should be noted that the objective of legal interpretation is to find concrete validity without undermining legal stability. In order to achieve this, the law should be interpreted mainly focusing on the general meaning of the text as much as possible, while also using logical and systematic interpretation methods considering various aspects of the law.


     The purpose of the Act is to prevent risks posed by chemicals to people's health and the environment and protect the lives and property of the people or the environment from chemicals by properly controlling chemicals and promptly responding to accidents that occur due to chemicals, and the reason that the requirement to obtain permission to conduct hazardous chemical business was introduced was to strengthen the hazardous chemical prevention and management system to provide people with a sense of security amid repeated chemical accidents. In this regard, it is reasonable to say that the requirements and standards for obtaining permission to conduct hazardous chemical business should be strictly interpreted considering the purpose of the Act, which is to minimize the effects that hazardous chemical substances can have on people's lives and assets and prevent environmental hazards.


     Pursuant to Article 28 (2) of the Act, any person who intends to conduct hazardous chemical business shall obtain permission from the Minister of Environment for each type of business after ensuring that each hazardous chemical handling facility, equipment, and technical human resources are in place in conformity with the standards prescribed by Ordinance of the Ministry of Environment. In addition, according to Article 49 (1) 7 of the Act, the Minister of Environment may require relevant public officials to access the relevant workplace or facility of a person required to obtain permission to conduct hazardous chemical business to collect chemicals or inspect relevant documents, facilities, equipment, etc. Therefore, it is considered that permission to conduct hazardous chemical business is only granted for the business conducted in the place of business for which an application to conduct business was made.


     Also, the application for permission to conduct hazardous chemical business in attached Form 43 of the Enforcement Rule of the Act requires information including the address, size and revenue of the place of business, and this implies that permission to conduct hazardous chemical business is granted to a specific place of business.


     Therefore, if a company obtained a permission to conduct hazardous chemical business pursuant to Article 28 of the Act and intends to operate the same business at another place of business for which permission was not obtained, the company should obtain permission to conduct hazardous chemical business for the other place of business as well.


    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail. 
     

  • Title
    Can a foreign educational institution open extension courses or conduct lifelong education courses for those other than students? (related to Article 3 of the Special Act on Establishment and Management of Foreign Educational Institutions in Free Economic Zones and Jeju Free International City, etc.)
  • Content

    Whether a foreign educational institution can open extension courses or conduct lifelong education courses for those other than students


    1. Question
    Based on Article 11 (2) of the Special Act on Establishment and Management of Foreign Educational Institutions in Free Economic Zones and Jeju Free International City, can a foreign educational institution corresponding to universities and colleges or junior colleges under Article 2 of the Higher Education Act operate extension courses intended for those other than students pursuant to Article 26 of the Higher Education Act or conduct lifelong education in accordance with Article 29 of the Lifelong Education Act?


    2. Answer
    No, such foreign educational institution cannot operate or conduct the said extension courses or lifelong education.


    3. Reason
    Subparagraph 1 of Article 2 of the Special Act on Establishment and Management of Foreign Educational Institutions in Free Economic Zones and Jeju Free International City (hereinafter “Foreign Educational Institutions Act”) stipulates that the term “foreign educational foundation” means the State, local government, or a non-profit corporation which establishes and manages a preschool/elementary/secondary/higher education institution. In subparagraph 2 of the same Article of the Act, it is stated that “foreign educational institution” means a foreign educational institution to be established and managed in Free Economic Zones under Article 22 of the Special Act on Designation and Management of Free Economic Zones, and a foreign educational institution to be established and managed in Jeju Special Self-Governing Province under Article 220 of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City. In addition, Article 3 of the Foreign Educational Institutions Act prescribes that “Except as otherwise provided in this Act, foreign educational institutions to be established under this Act shall not be subject to the Early Childhood Education Act, the Elementary and Secondary Education Act, the Higher Education Act, and the Private School Act.”.


    Also, Article 26 of the Higher Education Act states that “Schools may offer extension courses intended for those other than students, as determined by school regulations.”, and Article 29 of the Lifelong Education Act prescribes that “The heads of various levels of schools may conduct directly lifelong education which satisfies needs of students, their parents and community residents by considering the educational conditions of the relevant school, or by entrusting lifelong education to local governments or non-governmental organizations.”
     
    Under Article 4 of the Foreign Educational Institutions Act, only a foreign educational foundation may establish a foreign educational institution, and Article 5 (1) of the same Act and Article 2 (2) of the Enforcement Decree of the Act state that a foreign educational institution equivalent to a school under Article 2 of the Higher Education Act shall meet the standards for establishment, including facilities and equipment, under the Regulations on Establishment and Management of Universities, and obtain an approval from the Minister of Education. Also, pursuant to Article 11 (2) of the Act, any person who graduates from a foreign educational institution corresponding to a university, etc. satisfying the above conditions is deemed to have the same scholastic attainment as a person who graduated from the corresponding school in the Republic of Korea.


    Based on the above regulations, it can be said that a foreign educational institution corresponding to a university, etc. has the characteristics of a school that is established and operated by a foreign educational foundation pursuant to the Foreign Educational Institutions Act as an exception to the Higher Education Act or Private School Act, in order to provide education corresponding to higher education as prescribed by the Higher Education Act for foreigners residing in a Free Economic Zone or Jeju Special Self-Governing Province. Therefore, education courses operated by a foreign education institution corresponding to a university, etc. are deemed school education courses exceptionally recognized by the Foreign Educational Institution Act.


    In addition, considering that a school is an institution established and operated to provide education for students (refer to Article 9 (1) of the Framework Act on Education), there needs to be a legal basis for a school to provide education to a person who is not a student. For this reason, Article 26 of the Higher Education Act provides the grounds for the schools restricted to the types of schools in Article 2 of the said Act to open extension courses for persons who are not students. In this regard, a foreign educational institution cannot open extension courses as prescribed by Article 26 of the same Act without written regulations and just based on the cause that a foreign educational institution can provide school education corresponding to a university, etc.


    In the case of lifelong education, Article 29 of the Lifelong Education Act provides the grounds for the heads of various levels of schools under the Elementary and Secondary Education Act and the Higher Education Act to directly conduct lifelong education, in order to utilize the existing manpower and facilities of schools. But because a foreign educational institution corresponding to a university, etc. is an educational institution under the Foreign Educational Institution Act, and thus does not fall under a school under the Higher Education Act, it cannot conduct lifelong education pursuant to Article 29 of the Lifelong Education Act.


    Therefore, a foreign educational institution corresponding to a university, etc. under Article 11 (2) of the Foreign Educational Institution Act cannot open extension courses for persons who are not students in accordance with Article 26 of the Higher Education Act or conduct lifelong education as prescribed by Article 29 of the Lifelong Education Act.




    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail.

  • Title
    What is the scope of ‘work experience’ required for qualification approval of a foreign-certified tax consultant? (related to Article 19-3 (2) 2 of the Certified Tax Accountant Act)
  • Content

    <The scope of ‘work experience’ required for qualification approval of a foreign-certified tax consultant>


    1. Question
    Is “work experience as a tax specialist” as prescribed in Article 19-3 (2) 2 of the Certified Tax Accountant Act limited to work experience working as a tax specialist after obtaining qualification as a tax specialist under subparagraph 1 of the same Article?


    2. Answer
    Yes.


    3. Reason
    Subparagraph 1 of Article 19-2 of the Act stipulates that a foreign-certified tax consultant is a tax specialist in his or her home country of qualification whose qualification as a foreign-certified tax consultant is approved by the Minister of Economy and Finance pursuant to Article 19-3 of the Act. Also, subparagraph 6 of Article 19-2 of the Act defines ‘home country of qualification as a tax specialist’ as a country in which a foreign-certified tax accountant is qualified as a tax specialist and which is a party to the relevant tax treaty, etc. In this regard, it is clear that a person should obtain qualification as a tax specialist in his or her home country of qualification in order to become a tax specialist of the country.


    In addition, according to Article 19-3 (1) of the Act, any person qualified as a tax specialist in the home country of qualification and intending to become a foreign-certified tax consultant in Korea shall obtain qualification approval of a foreign-certified tax consultant from the Minister of Economy & Finance. Also, paragraph 2 of the same Act stipulates that a person intending to obtain qualification approval as a foreign-certified tax consultant should submit the following documents to the Minister of Strategy and Finance:
    1. A document attesting that he or she has been qualified as a tax specialist in the home country of qualification (subparagraph 1)


    2. A document attesting that he or she has at least three years of work experience as a tax specialist in the home country of qualification (subparagraph 2)


    Furthermore, under Article 19-3 (4) of the same Act and Article 30-3 of the Enforcement Decree of the Act, a tax specialist recognized in his or her home country of qualification means a person entitled to provide services equivalent to those prescribed in Article 2 of the Act pursuant to the statutes and regulations of the home country of qualification and registered as a tax specialist.


    If so, ‘work experience working as a tax specialist’, which is a qualification approval requirement for a foreign-certified tax consultant, is based on the assumption that the person is qualified as a tax specialist in the home country and is registered pursuant to the country’s statutes and regulations. Therefore, work experience in a related business before acquiring qualification as a tax specialist cannot be considered work experience working as a tax specialist.


    Qualification approval of foreign-certified tax consultant and registration of a foreign tax consulting corporation are required for the management and supervision of foreign-certified tax consultants and foreign tax consulting corporations that will operate in Korea following the signing of free trade agreements, etc. that will partially open the certified tax accountant business to counterpart countries. Particularly, qualification approval of foreign-certified tax consultants was introduced to prevent unqualified foreign-certified tax consultants from conducting business in Korea.



    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail.


     

    ※ Source : Ministry of Government Legislation /  Translation : KOTRA
    ※ The Ministry of Government Legislation’s statutory interpretation provides an authoritative opinion on the interpretation of statutes, and does not have the binding force of a final court ruling. Therefore, the competent government authority may not adopt the interpretation in its entirety. If a final court ruling contradicts the Ministry of Government Legislation’s statutory interpretation, the court ruling shall prevail.
    ※ If there is any inconsistency or ambiguity between the original Korean text and the translated English text, the Korean version shall prevail.

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