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FAQ

  • 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.

  • Title
    If a non-governmental organization represented by a foreigner who lives in Korea satisfies the requirements prescribed in Article 2 of the Assistance for Non-Profit, Non-Governmental Organizations Act, can the organization be registered under Article 4 of the same Act?
  • Content

    1. Question
    If a non-governmental organization represented by a foreigner who lives in Korea satisfies the requirements prescribed in Article 2 of the Assistance for Non-Profit, Non-Governmental Organizations Act (hereafter “the Act”), can the organization be registered pursuant to Article 4 of the Act?


    2. Answer
    Yes, the organization can be registered.


    3. Reason
    Article 2 of the Assistance for Non-Profit, Non-Governmental Organizations Act defines non-profit, non-governmental organizations, and states the requirements as follows:
    1. Direct beneficiaries of its business shall be many and unspecified persons
    2. No profit shall be distributed among its members
    3. It has not been actually established or operated primarily to back, support or oppose any special political party or candidate in election or to spread a creed of any specific religion
    4. The number of its regular members shall be at least 100
    5. It has actual results from public interest activities for the preceding one year or more
    6. Where it is not a juristic person but an organization, it shall have a representative or manager


     In addition, Article 4 (1) of the Act stipulates that any non-profit, non-governmental organization that intends to receive support determined by the Act shall apply for its registration with the head of a central administrative agency, or the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a Do Governor, or a Special Self-Governing Province Governor who supervises its main public interest activities, and the head of a central administrative agency or the Mayor/Do Governor upon receipt of such application for registration shall accept such registration.  

        
     Unless special rules such as reciprocity apply in regard to the registration of non-profit, non-governmental organizations, the Act applies to the entire territory of the Republic of Korea and all domestic persons, domestic companies, foreigners and foreign companies therein. In addition, the Act only states that a non-profit, non-governmental organization should have a representative or manager if it is not a juristic person but an organization (Article 2 Subparagraph 6), and does not restrict the registration of a non-governmental organization that is represented by a foreigner. In this regard, it can be said that a non-governmental organization represented by a foreigner who resides in Korea can be registered pursuant to Article 4 of the Act, provided that the requirements in Article 2 are met.


     If a non-governmental organization represented by a foreigner residing in Korea which meets the requirements in Article 2 of the Act cannot be registered pursuant to Article 4 of the Act, various assistances prescribed by the Act cannot be provided. If so, non-profit, non-governmental organizations’ right to be registered and receive assistances shall be restricted without any legal ground, which is unfair.


     In this regard, it can be said that a non-governmental organization represented by a foreigner residing in Korea which meets the requirements in Article 2 of the Act can be registered pursuant to Article 4 of the 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
    Does Article 18 (2) 3 of the Personal Information Protection Act provide a legal ground for using the personal information of foreigners out of purpose or providing it to a third party?
  • Content

    1. Question
    Where personal information can be used out of purpose or provided to a third party in accordance with Article 18 (2) 3 of the Personal Information Protection Act (the “Act”), do "data subjects" of personal information include foreigners?


    2. Answer
    Yes, the data subjects of personal information include foreigners, where personal information is used for a purpose other than the intended one or provided to a third party, according to Article 18 (2) 3 of the Act.


    3. Reason 
    Article 18 (1) of the Act stipulates that a personal information controller shall not use personal information beyond the scope provided for in Article 15 (1), or provide it to any third party beyond the scope provided for in Article 17 (1) and (3).


     However, Article 18 (2) 3 of the Act states that a personal information controller may use personal information for other purpose than the intended one or provide it to a third party where it is deemed necessary explicitly for protecting, from impending danger, life, body or economic profits of the data subject or third party where the data subject or his/her legal representative is not in a position to express his/her intention, or prior consent cannot be obtained owing to unknown addresses of the data subjects.


     The terminology used in an Act should be interpreted and applied in a consistent manner unless there is a special reason not to, such as the presence of a clause stating otherwise. And considering that Article 2 Subparagraph 1 of the Act defines "personal information" as information relating to a living individual that makes it possible to identify the individual by his/her full name, resident registration number, image, etc. and Article 2 Subparagraph 3 of the Act defines "data subject" as an individual who is identifiable by the information processed hereby to become the subject of that information, it can be said that information on foreigners are also information relating to a living individual and the foreigner who is a subject of that information is a data subject as prescribed in the above Subparagraph 3. Also, Article 19 Subparagraph 4 of the Act includes alien registration numbers as prescribed by Article 31 (4) of the Immigration Act in the scope of personally identifiable information. Therefore, “data subject” in the parts excluding the items under Article 18 (2) of the Act and “data subject” in item 3 of the same Article include foreigners.  


     In addition, Article 18 (1) of the Act protects the right of the data subject by restricting that a personal information controller shall not use personal information beyond the scope provided for in Article 15 (1), or provide it to any third party beyond the scope provided for in Article 17 (1) and (3). However, at the same time, Article 18 (2) of the same Act recognizes exceptions to restrictions on the out-of-purpose use and provision of personal information in inevitable cases where it is needed to achieve public good and administrative purposes. In the Article, one of the exceptions is where it is deemed necessary explicitly for protecting, from impending danger, life, body or economic profits of the data subject or third party where the data subject or his/her legal representative is not in a position to express his/her intention, or prior consent cannot be obtained owing to unknown addresses.


     If so, where the provision of personal information is required for protecting, from impending danger, life, body or economic profits of the data subject or third party, recognizing exceptions to restrictions on the out-of-purpose use and provision of personal information where the data subject is a foreigner protects the right of foreigners and also serves public good by protecting the life, body or economic profits of the third party. In this regard, irrespective of the need to strictly interpret the regulations to prevent a personal information controller’s subjective judgement on whether an exception should be recognized for protecting the data subject or third party’s life, body or economic profits, there is no reason to exclude foreigners from “data subject” in the parts excluding the items under Article 18 (2) of the Personal Information Protection Act and “data subject” in item 3 of the same Article.


     


    ※ 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 private teaching institute for lifelong education or vocational training under Article 2-2 (1) 2 of the Act on the Establishment and Operation of Private Institutes and Extracurricular Lessons intends to hire a foreign instructor, What requirements does he/she need to satisfy?
  • Content

    1. Question
    Where a private teaching institute for lifelong education or vocational training under Article 2-2 (1) 2 of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons intends to recruit a foreign instructor in accordance with Article 13 (1) of the same Act, Article 12 (2) of the Enforcement Decree of the Act and its attached Table 3, does the foreign instructor have to have a university degree or higher?


    2. Answer
    In this case, the institute must recruit a foreign instructor with a university degree or higher.


    3. Reasons
    No. 2 of the qualification standards for instructors of private teaching institutes for lifelong education or vocational training in attached Table 3 of the Enforcement Decree of the Private Teaching Institute Act states that an instructor should be “a person who satisfies at least one among no. 3 to 5 and no. 7 to 9 of the qualification standards for instructors of private teaching institutes for school curriculum”. Among such standards, no. 9 states that “a foreigner with a university degree or higher who obtained a status of stay prescribed by Article 10 of the Immigration Act and Article 12 of the Enforcement Decree of the Act or a permission to engage in teaching activities permitted under an additional status of stay as prescribed by Article 20 of the same Act and Article 25 of the Enforcement Decree of the Act” is qualified as foreign instructors. 


    Considering that foreigners need to have a status of stay prescribed by the Immigration Act and its Enforcement Decree or obtain permission to engage in extra activities permitted beyond the original status of stay to stay in Korea and pursue activities, only standard no. 9 can be applied to foreign instructors among the qualification standards for instructors of private teaching institutes for school curriculum. Therefore, the qualification standard that can be applied to foreign instructors in private teaching institutes for lifelong education or vocational training is also limited to no. 9 of the qualification standards for instructors of private teaching institutes for school curriculum, which is applied as prescribed by no. 2 of the qualification standards for private teaching institutes for lifelong education or vocational training.


    If it is presumed that a foreigner can qualify as an instructor of a private teaching institute for lifelong education or vocational training by meeting one of the qualification standards for teaching at such institute as prescribed by attached Table no. 3 of the Enforcement Decree of the Private Teaching Institute Act, the foreign instructor only needs to satisfy “high school graduate or equivalent academic background” in regard to his/her academic qualification as prescribed by no. 1 of the qualification standards for private teaching institutes for lifelong education or vocational training. If this is the case, there would be no need to prescribe that no. 9 of the qualification standards for instructors of private teaching institutes for school curriculum should be applied to foreigners in no. 2 of the qualification standards for private teaching institutes for lifelong education or vocational training, because no. 9 is a higher standard stipulating an academic background of university degree or higher.



    ※ 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 company that was granted status as a repatriating enterprise eligible for support merges with another company, can the surviving entity succeed the aforementioned status? (related to Article 7 of the Act on the Assistance to Korean Off-shore Enterprises in Repatriation, etc.)
  • Content

    • Interpretation no.: 18-0181 from the Ministry of Government Legislation
    • Issued on: Apr. 2, 2018


    1. Question

     In the case that company A merged with company B, which had been selected as a repatriating enterprise eligible for assistance under Article 7 of the Act on Assistance to Korean Off-shore Enterprises in Repatriation (hereafter ‘the Act’), and company A became the surviving entity, can company A succeed company B’s status as a repatriating enterprise eligible for assistance and receive assistances under Articles 11-14 of the same Act such as tax reduction and exemption?


    2. Answer

    If company A merged with company B and company A became the surviving entity, company A can succeed company B’s status as a repatriating enterprise eligible for assistance and receive assistances prescribed by Articles 11-14 of the Act such as tax reduction and exemption.


    3. Reasons

    In a business combination, two or more companies merge to form one new company under a contract (i.e., consolidation), or one company takes over another company and becomes the surviving entity (i.e., merger). As a result of the combination, the companies other than the newly established company or surviving company cease to exist, and the extinguished companies’ assets as well as its employees or shareholders are transferred to or taken over by the newly established or surviving company. Where businesses are merged or consolidated, all of the rights and responsibilities of the merged or consolidated companies under both public law and private law are succeeded by the newly established or surviving company, with the exception of the rights and responsibilities that are not permitted to be transferred due to their nature.


    According to the Act, a company that intends to be selected as a repatriating enterprise eligible for assistance should prepare a repatriation plan in regard to the liquidation, downsizing of the overseas place of business and the establishment or expansion of the domestic place of business, etc. and file an application for selection with the Minister of Trade, Industry & Energy (refer to Article 7 (2) of the Act). Upon receipt of an application, the minister can determine if the company is qualified by taking into consideration whether the company downsized its overseas place of business in accordance with the criteria prescribed by Ordinance of the Ministry of Trade, Industry & Energy, etc. and verifying if the company received assistance in accordance with other laws, and decide whether to select the company as a repatriating enterprise eligible for assistance (refer to Article 7 (1) of the Act and Article 6 of the Enforcement Decree of the Act). If a company falls under certain cases such as failing to submit the repatriation plan, the Minister of Trade, Industry & Energy may revoke the company’s eligibility for assistance (refer to Article 8 of the Act).


    If so, it can be said that the matters regarding the selection of a repatriating enterprise eligible for assistance are transferable as they are determined based on objective facts such as whether assistance is provided by other laws and an overseas place of business’s repatriation to Korea. Therefore, company B (the extinguished entity)’s status as a repatriating company eligible for assistance is succeeded by company A (the surviving entity).


    Also, as recognizing the succession of the status as a repatriating enterprise eligible for assistance encourages A’s succession of B’s plan for repatriating the overseas place of business after the merger, such interpretation shall be in line with the purpose of legislation of the Act, which is the facilitation of repatriation of Korean offshore enterprises. 


     


    ※ 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 land, etc. owned by a local government leased to a foreign-invested company, etc. under a negotiated contract as prescribed by Article 13 (1) and (3) of the Foreign Investment Promotion Act for 50 years be leased for another 50 years by renewing the lease contract pursuant to Article 13 (11) of the same Act?
  • Content

    • Interpretation no.: 17-0020 from the Ministry of Government Legislation
    • Issued on: Mar. 27. 2017


    1. Question

    The head of a local government leased land, etc. owned by the local government to a foreign-invested company, etc. for 50 years pursuant to Article 13 (1) of the Foreign Investment Promotion Act. Afterwards, the lease period was renewed pursuant to Paragraph 11 of the same Act. In this case, should the total period of lease before and after the lease renewal be not more than 50 years?


    2. Answer

    In the case where the head of a local government leased land, etc. that the local autonomous body owns to a foreign-invested company pursuant to Article 13 (1) of the Foreign Investment Promotion Act and then renewed the lease period pursuant to Article 11 of the same Act, the total period of lease before and after the lease renewal may be over 50 years.


    3. Details
    Article 13 (3) of the Foreign Investment Promotion Act stipulates that the lease period can be within 50 years, and Paragraph 11 of the same Article prescribes that the lease period in Paragraph 3 of the same Article can be renewed and that the renewed lease period cannot exceed the lease period prescribed by Paragraph 3 of the same Act. In this regard, the lease period can be up to 50 years and can be renewed for a period not exceeding the previous lease period without any consideration of the accumulated lease period. In addition, there are no regulations restricting the number of times the lease period can be renewed or the total period of lease before and after the lease renewal. Therefore, it cannot be interpreted that the total period of lease before and after the renewal as prescribed by Article 13 (11) of the same Act should be not more than 50 years.


     In addition, the proviso of Article 21 (1) of the Co-owned Properties and Goods Management Act, which is the general law concerning co-owned properties by a local government, stipulates that the period for which permission is granted to use or profit from donated property as prescribed by Article 7 (2) of the same Act shall be from the date on which permission was given for gratuitous use to the date on which the total amount of fee reaches the value of the donated property. However, the maximum period for using or profiting from the property – referred to as the total usable period - is set at 20 years.


     Also, the proviso of Article 7 (3) stipulates that the period for using or profiting from donated property can be renewed once up to 10 years within the scope of the total usable period. In other words, it is stated that the total period for which permission is granted to use or profit from donated property cannot exceed 20 years.


     If the legislation was meant to restrict the total extended lease period to 50 years, there would have been a regulation on the total lease period like the proviso of Article 7 (3) of the aforementioned Act. In this regard, interpreting that the total extended lease period should not exceed 50 years would limit the lease period in the Act and therefore be unacceptable.


     


    ※ 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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