Invest KOREA

If foreign investor A transfers all of the stocks of foreign-invested company C to its overseas parent company B in the form of dividend in kind, overseas parent company B can acquire the stocks of foreign-invested company C through succession by notifying the acquisition of stocks, etc. and foreign-invested company C should apply for registration of alteration due to the change of foreign investor. ◎ Because foreign company B receives the stocks of foreign-invested company C owned by foreign investor A in the form of dividend in kind, foreign company B should notify the acquisition of stocks, etc. (Form 1) – Reason for acquisition (Paragraph 15): Others - C’s stocks paid as dividend in kind by A – Required documents: Certificate of nationality of B and documents verifying the dividend in kind ◎ Foreign-invested company C (or foreign company B) should apply for registration of foreign-invested company (Form 17) – Reason for registration of alteration: Change of foreign investor – Required documents: A modified shareholder register, the existing certificate of registration of foreign-invested company (to be returned)

If foreign investor A invests in kind the entire stocks of foreigninvested company B in domestic company C, foreign-invested company B should file for cancellation of registration of a foreigninvested company and foreign investor A should file a report on the acquisition of stocks, etc. of domestic company C and apply for registration of a foreign-invested company. ◎ Foreign-invested company B should cancel the registration of foreigninvested company through registration of alteration (Form 17) – Reason: Domestication ◎ This constitutes a case “where a foreign investor has transferred all of the stocks, etc. owned by himself or herself to a Korean corporation or company” as prescribed in Article 21(4)2 of the Foreign Investment Promotion Act. ◎ As foreign investor A invests in kind all of the stocks of foreigninvested company B in domestic company C, foreign investor A should file a report on the acquisition of stocks, etc. of domestic company C (Form 1) – Object of investment: Domestic stocks ◎ Constitutes “stocks owned by foreigners under the Foreign Investment Promotion Act or the Foreign Exchange Transactions Act” as prescribed in Article 2(10)2 of the Enforcement Decree of the Foreign Investment Promotion Act) (satisfies the requirements of investment of not less than KRW 100 million and acquisition of not less than 10 percent of the total voting stocks) – Required documents: Certificate of nationality of A, appraisal report on the stocks of foreign-invested company B ◎ Domestic company C (or foreign investor A) should apply for registration of foreign-invested company (Form 17) – Reason: New foreign investment – Required documents: Certificate of corporate registration, certificate of business registration, and shareholder register (or documents certifying the stock transfer)

If foreign investor A invests in kind the entire stocks of foreigninvested company C in foreign company B, foreign company B should acquire the stocks of foreign-invested company C through succession by notifying the acquisition of stocks, etc. and foreigninvested company C should apply for registration of alteration to reflect the change of foreign investor. ◎ Because foreign company B acquires the stocks of foreign-invested company C through the investment of foreign investor A, it should file a report on the acquisition of stocks, etc. (Form 1) – Reason for acquisition (Paragraph 15): Others - A’s investment in kind of C’s stocks – Required documents: A certificate of nationality of B, and documents verifying the investment in kind ◎ Foreign-invested company C (or foreign company B) should apply for registration of alteration (Form 17). – Reason for registration of alteration: Change of foreign investor – Required documents: The modified shareholder register, the existing certificate of registration of foreign-invested company (to be returned)

If foreign investor A is acquired by foreign company (or existing foreign investor) B, B will succeed to be the new shareholder (or share increase) of foreign-invested company C. Therefore, an application for alteration of registration of foreign-invested company should be filed. ◎ By merging A, foreign company (or foreign investor) B shall succeed to be the shareholder of foreign-invested company C without a separate acquisition of stocks. Therefore, notification of acquisition of stocks, etc. (Form 1) is not required. ◎ Foreign-invested company C (or foreign investor B) should apply for alteration of registration of foreign-invested company (Form 17) – Reason for alteration: Change of the foreign investor – Required documents: A modified shareholder register, documents certifying the merger, a certificate of nationality of B (not required for an existing foreign investor), and the existing certificate of registration of foreign-invested company (to be returned) ※ The registration of alteration is required pursuant to Article 21(3)4 of the Foreign Investment Promotion Act as it is the case of a change to the “trade name, name or nationality of the foreign investor“ as prescribed in Article 2(3)2 of the Enforcement Rule of the Foreign Investment Promotion Act.

Although a certificate of purchase/deposit of foreign currency was issued for the loan by the bank, because the funds used are obviously domestically sourced, it is deemed unlawful or unjust and subsequently not recognized as foreign investment by the Ministry of Trade, Industry and Energy in accordance with Article 28(5)1 of the Foreign Investment Promotion Act*. ※It does not constitute an object of investment prescribed as “a means of international payment as defined under the Foreign Exchange Transactions Act or a means of domestic payment incurred by the exchange of such a means of international payment” in Article 2(1)8(a) of the Foreign Investment Promotion Act. ◎ The foreign investor intended to provide the won currency funds borrowed from a domestic bank to the foreign-invested company and therefore had no reason to deposit the foreign currency exchanged from Korean won in an external account. ◎ Nevertheless, the foreign investor used his/her free won account to exchange Korean won into foreign currency and transfer the funds to an offshore foreign currency account for non-residents. In this regard, although a certificate of purchase/deposit of foreign currency could be issued as if foreign-sourced funds were introduced, it cannot be recognized as foreign investment as the funds are evidently domestically-sourced funds.

When a foreign investor transfers the stocks, etc. acquired pursuant to the Foreign Investment Promotion Act to another person (a Korean national or a foreigner), the acquiring foreigner or foreigninvested company should report the acquisition of the stocks, etc. and register change of information of foreign-invested company to a delegated agency within 60 days of the signing of the stock transfer contract. 1) When the foreign investor transfers the stocks to a foreigner: – The acquiring foreigner: Two copies of the form of notification of foreign investment by acquisition of stocks, etc. or contribution (certificate of nationality and stock transfer contract to be attached) – The foreign-invested company: An application for alteration of registration of a foreign-invested company (the original certificate of registration of a foreign-invested company should be returned and a shareholder register should be attached) 2) When the foreign investor transfers the stocks to a Korean national: – The foreign-invested company should apply for alteration of registration of foreign-invested company to reflect the transfer of the stocks of the foreign investor. However, if the entire stocks held by the foreign investor are transferred, registration of foreigninvested company shall be cancelled. – The foreign-invested company: An application for alteration of registration of foreign-invested company (the original certificate of registration of a foreign-invested company should be returned and a shareholder register should be attached)

Such investment can be carried out under a different law. Where a foreigner (non-resident) acquires local currency-denominated stocks or shares of an unlisted or unregistered domestic corporation from a resident as an object of investment prescribed by the Foreign Investment Promotion Act and such acquisition does not constitute foreign investment prescribed by the Act, it should be reported to the head of a foreign exchange bank (Article 7-32 of the Regulation on Foreign Exchange Transactions).

Notification of foreign investment is mandatory, but there are no penalty provisions for failure to notify foreign investment. Therefore, when it is inevitable to change the information of the notified matters, a notification of change of information can be filed any time. ◎ Changes requiring notification of change of information – The trade name, name or nationality of the foreign investor – Foreign investment amount, foreign investment ratio and form of investment – Business that the investor intends to engage in – Transferor of stocks, etc. – Types of investment, purpose of investment, address of the foreigninvested company, etc.

In order to be recognized as foreign direct investment, investment funds should be remitted in foreign currency from a foreign country and exchanged into Korean won in Korea. It is because a certificate of purchase of foreign currency or a certificate of deposit of foreign currency should be submitted for the registration of a foreign-invested company. ◎ Nowadays, many foreign banks hold Korean won bank accounts in Korean banks. When a foreign investor visits a bank in his/her country to remit investment funds, the bank may suggest that the investor exchange the foreign currency funds into Korean won in their bank on the condition that the Korean won funds will be withdrawn in their corresponding bank in Korea. The foreign investor should reject this offer and transfer the funds in foreign currency.

In principle, the source of funds does not have to be disclosed. ◎ Exceptionally, however, a foreign-invested company may have to disclose the source of funds when applying for a permission to establish a casino in Jeju Special Self-Governing Province. According to Article 171-6 of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City, the investment funds must not pertain to criminal proceeds in accordance with the final ruling of a trial following Article 2(4) of the Act on the Regulation and Punishment of Concealment of Gains from Crimes. ◎ When a foreigner who is an individual living in a country that prohibits foreign investment by individuals (e.g., China) hand carries investment funds instead of remitting them, he/she may not be able to submit a permit issued by his/her home country for carrying the funds out of the country. In this case, when issuing a foreign investor visa (D-8), the Immigration Office requires the foreigner to submit other documents (e.g., a bank statement for the account under his/her name in which the funds were deposited for a considerable period of time) certifying that the foreigner is the owner of the funds.