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  • Title
    Is transporting unspecified passengers on a certain route with one’s own motor vehicle in return for payment for passenger transportation from a person who is not a passenger considered passenger transport business? (related to subparagraph 3 of Article 2 of the Passenger Transport Service Act, etc.)
  • Content

    1. Question
    A person signed a contract with the head of an organization managing a tourist spot stating that he/she shall transport passengers using his/her own motor vehicle on a route that uses the tourist spot as its first or last stop, and the payment for such transportation shall be made by the aforesaid organization, not the passengers. If this person intends to transport passengers pursuant to the contract, does this business fall under a passenger transport business under subparagraph 3 of Article 2 of the Passenger Transport Service Act (the “Act”), requiring the person to obtain a license or be registered according to Article 4 (1) of the Act?

    2. Answer
    In this case, the business constitutes a passenger transport business under subparagraph 3 of Article 2 of the Act, so only persons who have obtained a license or are registered pursuant to Article 4 (1) of the Act can operate the business.

    3. Reason
    Under subparagraph 3 of Article 2 of the Act, a passenger transport business is defined as “any business that transports passengers for profit using motor vehicles to respond to demand from others”. In addition, Article 4 (1) of the Act stipulates that “Any person who intends to engage in a passenger transport business shall prepare a business plan and obtain a license from or register with the Mayor/Do Governor”. As such, the Act regulates that only persons who are licensed or registered pursuant to Article 4 (1) of the Act are permitted to operate a passenger transport business.

    The person who transports passengers after entering into a contract on transporting passengers with his/her own motor vehicle on a route the first or last stop of which is a tourist spot in return for payment from the organization managing the tourist spot is responsible for transporting passengers based on the contract. In other words, the person is transporting passengers to “respond to demand from others”, and the transportation is in return for payment from the organization managing the tourist spot. Therefore, it should be considered that such transportation constitutes passenger transportation “for profit”.

    In addition, the Act imposes strict regulations on persons intending to operate a passenger transport business in terms of license and registration standards, report of charges or fares, and other matters in order to protect public interest. So if the regulations of the Act can be evaded by entering into a contract in which charges or fares are not directly collected by passengers, it will be contradictory to the purpose of legislating the Act, which is to establish order in the passenger transport business.



    ※ 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 does “consult” mean in the regulation prescribing that a person who sold or offered co-ownership or membership of a tourist accommodation facility should consult with the representative organization of the co-owners or members? (related to Article 26 of the Enforcement Decree of the Tourism Promotion Act, etc.)
  • Content

    1. Question

     A person who sold or offered a resort condominium for co-ownership or membership shall consult with the representative organization of co-owners or members on the plan for occupancy of guest rooms, matters related to the collection of expenses incurred in maintaining and managing the relevant facilities, and matters concerning the rights and interests of co-owners or members, pursuant to the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the Tourism Promotion Act (the “Act”). Does “consult” in this case mean to obtain agreement or consent? Also, does “consult” have to be in a face-to-face manner?

    2. Answer

    The word “consult” in the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the Act does not mean to obtain agreement or consent. Also, the aforementioned “consult” does not have to be in a face-to-face manner.

    3. Reason

    First, according to Article 20 (1) of the Act, no person shall sell ownership in a facility of a tourism business by units (applicable only to a resort condominium) or offer membership therein, unless he/she has completed the registration of a specific type of tourist accommodation business or tourist-use facility business, or has obtained approval for the business plan concerned. Also, in accordance with paragraph 5 of the same Article of the Act, the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the same Act, the person who sold or offered a resort condominium for co-ownership or membership (hereafter “manager”) shall consult with the representative organization of co-owners or members on the plan for occupancy of guest rooms, matters related to the collection of expenses incurred in maintaining and managing the relevant facilities, and matters concerning the rights and interests of co-owners of members, in order to protect the rights and interests of co-owners and members.

    However, the word “consult” used in Acts and statutes cannot be considered to have a single meaning, and its meaning should be determined based on a consideration of the purpose of the legal clause, the structure of the overall law, etc. Generally, a contract for sale of a resort condominium by unit is classified into sales contract and facility use contract for the co-owned unit. According to Article 24 (1) 3 of the Enforcement Decree of the Act, in the case of sale in units, the number of purchasers per guest room shall be at least five persons, with the exception of special cases such as when a co-owner is a corporation. Therefore, a co-owner has partial ownership of the guest room concerned, and is prohibited from partially selling the co-ownership or changing the form of the guest room. A co-owner also entrusts the management of the guest room and enters into a facility use contract for using the resort condominium. If he/she fails to abide by the terms of the facility use contract, he/she is restricted from using the co-owned guest room. As such, exclusive rights to use and profit are not granted to a co-owner of a resort condominium.

    A member of a resort condominium is only given priority in using the condominium’s facilities over persons who are not co-owners or members in accordance with the membership contract and facility use contract. In light of this, it is difficult to consider that the representative organization of co-owners and members comprised of members as well as co-owners has the right to make decisions on the operation of resort condominium facilities. On the other hand, the manager has the right to manage and operate facilities and collect management expenses pursuant to the relevant contract, and can also occupy the sold guest rooms and use, profit from and manage the other facilities while owning them. Such facts suggest that it is fair to conclude that the right to decide matters on the operation of a resort condominiums is granted to the manager. Therefore, it is reasonable to say that the manager has the right to decide matters on the operation of a resort condominium’s facilities.

    If so, it can be said that the purpose of Article 26 of the Enforcement Decree of the Act, which prescribes that the manager shall consult with the representative organization of co-owners and members on the formulation of a plan for occupancy of guest rooms (the latter part of subparagraph 2), amendment of any rules on recovery of expenses incurred in maintaining and managing the relevant facilities (subparagraph 3 (b)), and matters concerning the rights and interests of co-owners or members (subparagraph 6 (c)), is to ensure the efficient decision of matters concerning the operation of tourism business while at the same time protect the rights and interests of co-owners and members. In addition, as long as there does not exist a written regulation on recognizing that the results of the consultation are legally binding or the representative organization has decisive rights, it cannot be considered that “consult” means to obtain agreement or consent.

    To restrict the rights of the manager and make it legally effective to grant decisive rights to the representative organization of co-owners and members, a firm legal basis is needed. In this regard, the clause in the Enforcement Decree of the Act prescribing that the manager shall consult with the representative organization of co-owners and members does not mean that an agreement or consent should be obtained, and therefore the rights of the manager cannot be restricted. Moreover, it should be noted that the word “consent” is used in Article 14 (3) of the Act, which prescribes that “when each travel agency intends to change the itinerary, it shall obtain a traveler's prior consent”, implying that “consult” and “consent” are not used interchangeably.

    Second, it should be considered that while the latter part of subparagraph 2 of Article 26 and subparagraphs 3 (b) and 6 (c) of the same Article of the Enforcement Decree of the Act stipulates that the manager shall consult with the representative organization of co-owners and members on certain matters, the procedure and method of consulting are not prescribed.

    As discussed above, the word “consult” used in the aforesaid regulation does not mean to obtain agreement or consent. Generally, to consult means that two or more persons cooperate and discuss, and its narrow meaning does not premise a face-to-face discussion. Consequently, because the law does not restrict that “consult” should be carried out in a face-to-face matter, an exchange of opinion with the consulting counterpart resulting in actual consultation shall be enough, so a method of consulting other than face-to-face consulting shall be permitted.



    ※ 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 extent of reversion when an improvement zone’s designation is canceled? (related to the main sentence of Article 22 (1) of the Act on the Improvement of Urban Areas and Residential Environments, etc.)
  • Content

    1. Question
    An area that was designated and publicly notified as a residential environment improvement zone pursuant to the Act on the Improvement of Urban Areas and Residential Environments (hereafter the “Act”) was designated and publicly notified as a redevelopment zone after its status as a residential environment improvement zone was canceled. If the area’s designation as a redevelopment zone is canceled pursuant to Article 20 (1) 3 of the Act, does it mean that the area is reverted to a residential environment improvement zone pursuant to the main sentence of Article 22 (1) of the Act?


    2. Answer
    No. In this case, even if the area’s designation as a redevelopment zone is canceled in accordance with Article 20 (1) 3 of the Act, it cannot be considered that the area is reverted to the status of being designated and publicly notified as a residential environment improvement zone pursuant to the main sentence of Article 22 (1).


    3. Reason
    The main sentence of Article 22 (1) of the Act prescribes that if an improvement zone is canceled under Article 20 and 21, the status of a special-use area, fundamental infrastructure, etc. changed by the relevant improvement plan shall be deemed to revert to the status they had before the improvement zone was designated. However, it does not prescribe whether the improvement zone is reverted to the status it had before the cancelation, if the former status was canceled.


     According to the Act, improvement zones are designated by establishing the improvement plan within the extent consistent with the master plan on the improvement of urban areas and residential environments (hereafter "master plan") after gathering consensus from residents, seeking the opinion of the relevant local council and referring the case to the relevant local urban planning committee for deliberation (Articles 8, 15, 16, etc.). As such, the law prescribes that an improvement zone shall be designated after going through processes such as seeking opinions on the need to implement the improvement project, feasibility of the project, etc. Considering this, it is not reasonable to consider that an improvement zone can be designated and publicly notified without going through the improvement zone designation process unless it is prescribed by law. Also, even if cancelation of current designation and designation as a new improvement zone are done at the same time, cancelation of an improvement zone and designation of an improvement zone are separate administrative orders, so the status before designation as a new improvement zone should be regarded as a status in which the former improvement zone is canceled.


     Therefore, the reason that the main sentence of Article 22 (1) of the Act stipulates that specific-use areas, fundamental infrastructure, etc. changed by the relevant improvement plan shall be deemed to revert to the status they had before the improvement zone was designated is to prevent the canceled zone from being left without a designated status and thus become restricted from land use and construction. In this regard, it cannot be deemed that the former improvement zone whose status was already canceled maintains its status of being designated and publicly notified.



    ※ 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 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. 

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