Invest KOREA

No. Parts and raw materials for military aircraft are not excluded from the scope of goods for which customs duties are reduced or exempted pursuant to Article 89 (6) 1 of the Customs Act

Article 89 of the Customs Act prescribes the matters related to the reduction and exemption of customs duties for resolving uneven tariff rates in order to support the manufacture of products subject to relatively low tariff rates for finished products and high tariff rates for parts and raw materials. In the same Article, customs duties reduction and exemption for “parts and raw materials” used for the manufacture or repair of “aircraft” apply differently depending on whether they are used by a “small or medium enterprise” (paragraph 1) or “a person who is not a small or medium enterprise” (paragraph 6). And under paragraph 6 of the same Article, “parts and raw materials” used to manufacture or repair goods referred to in paragraph (1) 1 are eligible for customs duties reduction or exemption, and the goods are prescribed as “aircraft” under paragraph (1) 1 of the same Article. In addition, Article 35 (1) 1 of the Enforcement Rules of the same Act delegated by the parts excluding the subparagraphs of paragraph 1 of the same Article stipulates that “parts and raw materials” imported by an aircraft manufacturer or repairer for the manufacture or repair of “aircraft” are eligible for customs duties reduction or exemption. As such, “aircrafts” are not limited to ”civil aircrafts” for which “parts and raw materials” are used.

If so, it can be said that “goods under paragraph (1) 1” in the parts excluding the subparagraphs of Article 89 (6) of the Customs Act which prescribes matters on the reduction or exemption of customs duties for goods subject to uneven tariff rates means “all aircraft including military aircraft”, so the parts excluding the subparagraphs of the paragraph of the same Article means that “customs duties shall be reduced or exempted as prescribed by each subparagraph of the same paragraph for “parts and raw materials” used to manufacture or repair all aircraft including military aircraft at a designated factory by a person who is not a small or medium enterprise, and subparagraph 1 of the same paragraph stipulates the scope of “parts and raw materials” as “goods prescribed by Ordinance of the Ministry of Economy and Finance among goods subject to the Annex 4 Agreement on Trade in Civil Aircraft of the Marrakesh Agreement Establishing the World Trade Organization”. Also, Attached Table 1 of the Enforcement Rules of the same Act which was delegated by the Act only states the list of the specific product names of “parts and raw materials” used to manufacture or repair aircraft and does not restrict the scope of “aircraft” for which parts and raw materials are used. In this regard, it will be reasonable to interpret that parts and raw materials for military aircraft are included in “goods prescribed by Ordinance of the Ministry of Economy and Finance among goods subject to the Annex 4 Agreement on Trade in Civil Aircraft of the Marrakesh Agreement Establishing the World Trade Organization” which are eligible for reduction or exemption of customs duties pursuant to Article 89 (6) 1 of the same Act. Therefore, it can be concluded that parts and raw materials for military aircraft are considered goods for which customs duties are reduced or exempted pursuant to Article 89 (6) 1 of the Customs Act.

Robot work under Item d (36) of paragraph 1 of attached Table 5 of the Enforcement Rules of the Occupational Safety and Health Act is not limited to work using “industrial robots”.

In the Occupational Safety and Health Act, the definition or scope of “robot” is not prescribed. But under the Korea Industrial Standards (KS) classification of KS B ISO 8373, robots are categorized into industrial robots (3.6), service robots (3.7) and medical robots (3.8). Under the KS classification, the definition of robots encompasses industrial robots, service robots and medical robots, and under attached Table 5 of the Enforcement Rules of the Occupational Safety and Health Act, “robot work” is classified as a work subject to special education (Item d (36) of subparagraph 1), and “industrial robots” are categorized under equipment subject to functional test education (Item (k) of subparagraph 5) and the terms “robots” and “industrial robots” are separately classified in the Table. If so, as long as the work subject to “special education” which is to be additionally conducted when the business owner employs an employee for a harmful or dangerous work or replaces an existing job with such work is prescribed using the term “robot” instead of “industrial robot” (Item (d) 36 of subparagraph 1 of attached Table 5), “robot work” is not restricted to “industrial robots” among robots.

In addition, the scope of work subject to special education pursuant to Article 29 (3) of the Occupational Safety and Health Act should be interpreted in a manner that maintains and enhances the health and safety of the person providing labor. In this regard, work subject to special education is defined as “robot work” so that special education can be provided to workers employed for robot work or workers who changed their work to robot work without restricting or applying exceptions to the scope of robots, considering the fact that work using various robots other than industrial robots can be harmful or dangerous to the person providing labor, and such logic shall be in conformance with the legislative purpose of the same Act.

Therefore, robot work under Item d (36) of paragraph 1 of attached Table 5 of the Enforcement Rules of the Occupational Safety and Health Act is not limited to work using “industrial robots”.

No, “where a small and medium entrepreneur that is a corporation creates a new small and medium enterprise that is another corporation and starts business” under Article 2 (1) 5 of the Enforcement Decree of the former Small and Medium Enterprise Establishment Act is not restricted to a case where “another small and medium enterprise that is another corporation is established and the same type of business as the existing business is started”

Under Article 2 (1) 5 of the Enforcement Decree of the former Small and Medium Enterprise Establishment Act, “where a small and medium entrepreneur that is a corporation creates a new small and medium enterprise that is another corporation that owns 30/100 or more of the total number of issued shares with voting rights and starts business” is excluded from the scope of “business startup”. However, under Article 2 (1) 4 of the Enforcement Decree, it is prescribed that “a small and medium entrepreneur that is an individual” who meets certain stock ownership requirements and runs “a business that is the same type as the existing business” is not included in the scope of “business startup”. On the other hand, “business startup” by a small and medium entrepreneur that is a corporation is prescribed as the startup of a business by creating a new small and medium enterprise that is another corporation that meets certain stock ownership requirements regardless of whether the business is the same type of business as the existing business. In this regard, if a small and medium entrepreneur starts a new business by establishing another small and medium enterprise that is a new corporation that satisfies certain stock ownership requirements, it does not qualify as a “business startup” regardless of whether the newly established small and medium enterprise starts a type of business that is different from that of its existing business.

Yes, in this case, the “status as an aggregate extraction business” to be succeeded to the transferee of the business pursuant to Article 17 (2) of the Aggregate Extraction Act includes the rights and liabilities of the transferee following permission of aggregate extraction.

First of all, the purpose of the regulations on the succession of status is to recognize that the transferee has the same status as the transferor. While Article 17 (2) of the Aggregate Extraction Act stipulates that the transferee or the corporation established as a consequence of the merger or surviving the merger shall succeed the status that the transferor or the corporation existing before the merger held as an aggregate extraction business entity, it does not restrict the definition of “status” or the scope of “succession of status”. In this regard, succession of “the status as an aggregate extraction business” shall mean that all rights and liabilities of the transferor pursuant to registration as an aggregate extraction business, and for the business entity registered pursuant to Article 14 of the Act to actually operate the business, a permission to extract aggregates should be obtained and the selection and washing of aggregates should be reported. In this regard, if a transferor obtained permission to extract aggregates or reported the selection and washing of aggregates, the accompanying rights and liabilities shall be deemed as succeeded by the transferee in accordance with the regulations on succession of status.

Also, Article 45 of the Act states that dispositions and other actions made to an aggregate extraction business entity or an issue ordered under the Act shall also be effective to a successor to the aggregate extraction business entity, and permission to extract aggregate under Article 22 of the Act is ‘a disposition under the same Act’ and the permission to extract aggregate obtained by the transferor of the aggregate extraction business shall be effective also to the transferee who is the successor. Therefore, the transferor’s “status as an aggregate extraction business” to be succeeded by the transferee shall include the rights and liabilities following permission of aggregate extraction.

In conclusion, “status as an aggregate extraction business” to be succeeded to the transferee of the business pursuant to Article 17 (2) of the Act includes the rights and liabilities following permission of aggregate extraction obtained by the transferor.

In this case, the regulations that apply mutatis mutandis to Article 57-8 (1) of the Enforcement Decree of the Local Public Enterprises Act do not include Article 33 of the Local Contract Act.

Under Articles 64-2 (4) and (6) of the Local Contract Act, it is prescribed that where a public corporation enters into a contract, it may restrict the eligibility of a bidder judged undoubtedly detrimental to fair competition and appropriate execution of a contract, within two years, and that the matters necessary for restrictions on the eligibility for bidding, etc. shall be prescribed by Presidential Decree. Accordingly, Article 57-8 (1) of the Enforcement Decree of the same Act prescribes that Articles 31 and 31-5 of the Local Contract Act and Articles 90 to 92, 93, and 94 to 97 of the Enforcement Decree of the same Act shall apply mutatis mutandis to matters such as restrictions on the eligibility for bidding, but Article 33 of the Act is not included in the list of clauses that shall apply mutatis mutandis.

However, under Article 31 (1) 8 of the Local Contract Act, which applies mutatis mutandis to the Local Public Enterprises Act, it is prescribed that the head of a local government shall restrict qualifications for participation of those tendering within two years, who fall under any of the cases as prescribed by Presidential Decree. In this regard, in regard to this question, the issue is whether Article 57-8 (1) of the Enforcement Decree of the Local Public Enterprises Act applies mutatis mutandis to Article 33 of the Local Contract Act as well in regard to contracts with local government-invested public corporations.

“Mutatis mutandis” is a legislative technique that applies a specific clause to another clause that is similar in nature while making necessary alterations, and mutatis mutandis application is permitted only when there are regulations that explicitly state as such. And when a certain Act specifically stipulates the clauses that are subject to mutatis mutandis application, it shall be deemed that application shall be limited only to the specified clauses.

In this case, Article 57-8 (1) of the Enforcement Decree of the Local Public Enterprises Act lists the clauses subject to mutatis mutandis application, which does not include Article 33 of the Local Contract Act. Also, the Local Public Enterprises Act does not have an explicit clause that mandates that Article 33 of the Local Contract Act should be applied mutatis mutandis to contracts to which a local government-invested public corporation is a party. Therefore, based on the clauses of the Local Public Enterprises Act and in consideration of the nature of the legislative technique of mutatis mutandis application, it cannot be said that Article 33 of the Local Contract Act applies mutatis mutandis to contracts to which a local government-invested public corporation is a party.

Moreover, because administrative regulations that form the grounds for punitive administrative acts should be interpreted and applied in a strict manner, such administrative acts should not be interpreted expansively or analogically in a way that is disadvantageous to the party subject to the administrative act. However. Article 33 of the Local Contract Act restricts the persons that can influence a contract to which a local government is a party from signing a contract, and persons who concluded a contract in violation of the same Act shall be restricted from participation in tendering within two years, pursuant to Article 31 (1) 8 of the same Act. Based on such facts, it cannot be said that Article 33 of the same Act can be extended and applied mutatis mutandis even to contracts to which a local government-invested public corporation is a party.

Thus, Article 33 of the Local Contract Act is not included in the scope of regulations subject to mutatis mutandis application of Article 57-8 (1) of the Enforcement Decree of the Local Public Enterprises Act.

Even for a business that does not fall under the subparagraphs of Article 38 (2) of the National Finance Act, the Minister of Economy and Finance may exempt preliminary feasibility surveys if the business falls under a business under Article 27 (3) of the National High-Tech Strategic Industries Act.

The purpose of the National High-Tech Strategic Industries Act is to contribute to national and economic security and development of the national economy by establishing a sustainable foundation for growth of industries through the creation of innovative ecosystems of national high-tech strategic industries and the strengthening of their technological capabilities (Article 1). On the other hand, the National Finance Act provides for the matters concerning national finance, including the management of the State’s budgets, funds, settlement of accounts, and performance along with the State’s obligations. Because the legislative purpose of the two laws are different, it cannot be said that one law prevails over the other in an exclusive manner.

Therefore, to determine whether the matters prescribed by the National High-Tech Strategic Industries Act can be considered special cases on matters prescribed by the National Finance Act, the purpose of legislation, scope of application, and the expressions used in the clauses should all be considered comprehensively.

According to Articles 4, 20 and 27 of the National High-Tech Strategic Industries Act, the Act prevails over other statutes with respect to the fostering of strategic industries, etc.; the Minister of Economy and Finance may select strategic industries, etc. as projects subject to the preliminary feasibility survey to speed up the strengthening of competitiveness; and the Minister may also exempt preliminary feasibility survey for projects that are deemed particularly necessary to be speedily implemented for the sake of national and economic security. As such, the law stipulates special measures for the speedy formulation of budget for promoting national high-tech strategic industries. Therefore, it can be said that Article 27 (3) of the Act is an exceptional clauses that prevails over the National Finance Act regarding matters on preliminary feasibility survey.

Under the proviso of Article 27 (3) of the National High-Tech Strategic Industries Act, projects for which preliminary feasibility surveys can be exempted are defined as projects deemed particularly necessary to be speedily implemented for the sake of national and economic security and for securing a stable industrial supply chain and future competitiveness, etc. among the projects under the subparagraphs of paragraph (1). In other words, this clause restricts the scope of projects subject to exemption and explicitly states that preliminary feasibility surveys can be exempted “notwithstanding Article 38 (1) of the National Finance Act”. Also, the latter part of the same paragraph stipulates the process after the exemption, stating that “the details of a project exempt from a preliminary feasibility survey and the grounds for exemption shall be reported without delay to the competent Standing Committee of the National Assembly”. In this regard, it can be said that the same paragraph provides a legal ground for exemption of preliminary feasibility study pursuant to Article 38 of the National Finance Act.
In addition, it became known that during the legislation process of Article 27 (3) of the National High-Tech Strategic Industries Act, the regulation was newly inserted in order to expedite and facilitate urgent R&D projects related to national high-tech strategic industries that have been delayed. Therefore, it will be reasonable to consider that the Minister of Economy and Finance may exempt preliminary feasibility survey for a project meeting the requirements on the same paragraph even if it does not fall under the subparagraphs of Article 38 (2) of the National Finance Act, and this shall also be in line with the purpose of legislating Article 27 of the Act.

In conclusion, the Minister of Economy and Finance can exempt a project that does not fall under the subparagraphs of Article 38 (2) of the National Finance Act from preliminary feasibility survey, if it qualifies as a project under Article 27 (3) of the National High-Tech Strategic Industries Act.

Yes, gas appliances for which all or some inspections are exempted pursuant to the proviso of Article 39 (1) of the Liquefied Petroleum Gas Act are included in the scope of gas appliances prohibited from retrofitting pursuant to Article 40 (5) of the same Act.

The Liquefied Petroleum Gas Act does not define or explicitly stipulate the meaning of “gas appliances”. However, considering that subparagraph 12 of Article 2 of the Act defines “gas appliance manufacturing business” as “the business of manufacturing appliances to use liquefied petroleum gas or other fuel gases under the Urban Gas Business Act, it can be said that “gas appliances” means appliances for using liquefied petroleum gas or fuel gases under the Urban Gas Business Act.

The terminology used in an Act should be interpreted and applied identically unless there are other clauses stating otherwise in the Act or where there are other special reasons. In this regard, considering the fact that Article 40 (5) of the Liquefied Petroleum Gas Act only prescribes that “gas appliances” are prohibited from retrofitting, and does not exclude gas appliances that are not subject to retrofitting, it is reasonable to interpret that gas appliances that are prohibited from retrofitting refer to all appliances for using liquefied petroleum gas or fuel gases under the Urban Gas Business Act.

Also, the Liquefied Petroleum Gas Act’s purpose is to ensure public safety by prescribing matters concerning the export and import, filing, storage, sale, and use of liquefied petroleum gas (Article 1 of the Act). And considering that safety control is significantly important because liquefied petroleum gas used for gas appliances, etc. is prone to fire and explosion, and fire and explosion accidents cause serious and massive casualties and loss of property, Article 40 (5) of the Act should be regarded as a prohibition of retrofitting in order to secure safety. Therefore, reducing the scope of gas appliances prohibited from retrofitting without legal ground and excluding “gas appliance for which all or some inspections are exempted” from “gas appliances prohibited from retrofitting” will be contradictory to the legislative and regulative purpose of the Act.

Consequently, it can be said that gas appliances for which all or some inspections are exempted pursuant to the proviso of Article 39 (1) of the Liquefied Petroleum Gas Act are included in the scope of gas appliances prohibited from retrofitting pursuant to Article 40 (5) of the proviso of the same Act.

Where change of development activities is permitted in order to extend the period of the project for change of form and quality of land, registration and license tax should be filed and paid for such permission of change pursuant to Article 35 (1) of the Local Tax Act.

Under the principle of no taxation without law, tax laws shall be interpreted according to their legal text unless there is special cause not to do so, and expansive or analogical interpretation is not permitted without a reasonable cause. ¹⁾

And because subparagraph 2 of Article 24 of the Local Tax Act includes a person who obtains an altered license in the scope of persons liable to pay a registration and license tax, and Article 35 (1) of the same Act explicitly prescribes that a person who intends to change his/her license shall pay a registration and license tax. Therefore, a person who intends to obtain a permission for change of development activities should pay registration and license tax as prescribed by Article 35 (1) of the Local Tax Act.

In the Local Tax Act, Article 35 (1) states that a person who intends to obtain a new license or change a license shall file a registration and license tax return and pay tax, mandating such person’s liability to pay registration and license tax. Also, paragraph (2) of the same Article stipulates the frequency and number of impositions of registration and license tax, including that registration and license tax shall be annually imposed for licenses the term of validity of which is not specified. Furthermore, paragraph (3) of the same Article prescribes exceptions to paragraph (2), stating the cases where registration and license tax is imposed only once. Judging from such facts, it is reasonable to interpret that paragraph (3) of the said Article is a regulation on the exceptions on the rules on the frequency and number of impositions of registration and license tax, and is not an exceptional clause on the filing and payment of license and registration tax of a person who intends to change his/her license under paragraph 1 of the same Article.

In addition, license tax is a type of “services tax” imposed for each type of license with the license for a specific activity as its taxable object, regardless of whether the recipient of the license is profitable or not. In this regard, the unit of taxation should be determined based on the number of specific licenses issued by an administrative agency. Also, it is deemed that permission of change of development activities to extend the period of a project for change of form and quality of land is obtained by means of extending the existing permission period for development activities needed for the change of form and quality of land that will take place after the expiration of the existing project period. Moreover, under the National Land Planning Act, the requirements and procedure, etc. for permission of change of development activities prescribed are identical to those applied to permission of development activities. Considering such facts, it can be concluded that change of permission of development activities is a separate administrative act under which the permission standards and administrative procedure applied to obtain permission of development activities are re-applied. Therefore, in regard to change of permission of development activities to extend the period of a project to change the form and quality of land, registration and license tax for the permission for change should be filed and paid separately pursuant to Article 35 (1) of the Local Tax Act, and such interpretation shall be in conformance with the characteristics of license tax as a services tax.

As such, where a change of permission of development activities is permitted to extend a project to change the form and quality of land, registration and license tax for such permission of change should be filed and paid pursuant to Article 35 (1) of the Local Tax Act.

Yes, in this case, it is considered a case in which “two or more projects are collectively implemented under a single project plan” under note 9 of attached Table 3 of the Enforcement Decree of the Environmental Impact Assessment Act.

Under note 9 of attached Table 3 of the Enforcement Decree of the Environmental Impact Assessment Act, it is prescribed that “where a project implementer implements two or more projects under a single project plan and the sum of the figures calculated under the formula prescribed under the same note is one or more, environmental impact assessment should be conducted for the entire project”. The purpose of the clause is to minimize environmental damage by reviewing the harmful impact that multiple projects can have on the area’s environment if the quantitative and cumulative impact of the projects exceeds the environmental capacity of the area. In this regard, “two or more projects” in the regulation means two or more projects subject to environmental impact assessment pursuant to individual laws. Even when multiple projects are conducted in a single project area, the projects should each be independent and separable to be deemed as two or more projects.

Where a permission for conversion of mountainous districts (mountainous district development project) is required to install waste disposal facilities, it is considered “two or more projects” under note 9 of attached Table 3 of the Enforcement Decree of the Environmental Impact Assessment Act for the following reason.
Under the Environmental Impact Assessment Act, a mountainous district development project and a waste disposal facility establishment project are separate projects subject to different environmental impact assessment (each prescribed under Article 22 (1) 12 and 22 (1) 15 of the Environmental Impact Assessment Act). A mountainous district development project is legally based under the Mountainous Districts Management Act, and a waste disposal facility establishment project has its legal basis under the Wastes Control Act. A project for development of mountainous districts is implemented to use mountainous districts for uses other than afforestation for the rational preservation and use of mountainous districts or to change the form or quality of mountainous districts. On the other hand, the purpose of a project for establishment of a waste disposal facility is to reduce the generation of wastes to the maximum extent possible and treating generated wastes in an environment-friendly manner. In addition, a mountainous district development project is not part of a waste disposal facility establishment project and a separate permission for conversion of mountainous districts (Article 14 (1) of the Mountainous Districts Management Act) should be obtained. In this respect, a mountainous district development project and a waste disposal facility establishment project are each independent projects that are separable, and thus the two are deemed “two or more projects”.

If a place where a waste disposal facility is to be established is a mountainous district, it is considered a case in which a single project implementer combines a waste disposal facility establishment project and a mountainous district development project into a waste disposal facility establishment project and implements the two as a single project. Also, compared to when each of the two projects are implemented separately, the implementation of the two projects as a single one may increase environmental impact on the area due to the combined impact of both projects. And because the environmental impact on the area may be compounded in such case, there is a need to study the quantitative and cumulative environmental impact to the area.

Consequently, this should be considered a case in which “two or more projects are collectively implemented under a single project plan” under note 9 of attached Table 3 of the Enforcement Decree of the Environmental Impact Assessment Act..

Yes. In this case, an occupancy contract for the unique business should be concluded before concluding a leasing business occupancy contract.

Pursuant to the main sentence of Article 38-2 (1) of the Industrial Cluster Development and Factory Establishment Act (hereafter the “Act”), any person who intends to engage in the leasing business with industrial sites or factories, etc. in an industrial facilities zone, etc. shall conclude an occupancy agreement with a management agency after reporting on the completion of establishment, etc. of factories pursuant to Article 15 (1) of the Act or on the commencement of business pursuant to paragraph (2) of the same Article: Provided, That he or she may conclude an occupancy agreement before reporting on the completion of establishment, etc. of factories or on the commencement of business.

The main sentence of Article 38-2 (1) of the Act was revised into its current state when it was partially amended into Act no. 9426 on Feb. 6, 2009. In related legislative documents, it is stipulated that the purpose of the amended regulation is to strengthen the requirements for business implementation, requiring reporting on the completion of establishment, etc. of factories or on the commencement of business when intending to operate a leasing business in an industrial complex, in order to prevent speculative lease demand for industrial land, factories, etc. so that actual demand can be met.

Also, in the proviso of Article 38-2 (1) of the Act, the exceptional cases where it is permitted to conclude an occupancy contract before reporting on the completion of establishment, etc. of factories or on the commencement of business are prescribed, and such exceptions are limited to where a person engages in specific business areas (electricity generation business by using solar energy) or where the Korea Asset Management Corporation leases an industrial site or a plant.

If so, “report on the completion of establishment, etc. of factories” or “report on the commencement of business” are stipulated as procedures that should precede the conclusion of a leasing business occupancy contract under the main sentence of Article 38-2 (1) of the Act for the purpose of preventing the purchase or acquisition of factories, etc. only for leasing business purposes in industrial facility zones, etc. Also, for this purpose, the regulation prescribes that only when an advance occupancy agreement, etc. for a unique business is concluded and installation of facilities, etc. is completed and the unique business was implemented or currently is implemented, a leasing business occupancy contract can be concluded for the factory, etc. and a leasing business can be conducted. In this regard, it is fair to regard that “report on the completion of establishment, etc. of factories” or “report on the commencement of business” under the main sentence of Article 38-2 (1) of the Act refers to reports for implementing a unique business where an advance occupancy contract for the unique business has already been concluded. On the other hand, “occupancy contract” shall mean “an occupancy contract for leasing business”, or a leasing business occupancy contract.

The Act regulates the leasing contract period and disposal of property to restrict lessors from exercising their property rights, so that a leasing business cannot be used for speculative purposes. Moreover, to prevent speculations for capital gains so that industrial sites and factories can be supplied to persons with actual demand, Article 39 (6) of the Act stipulates restrictions¹⁰⁾ on disposal of industrial sites, etc. Considering such facts, it is reasonable to argue that if a person that is not a tenant of the industrial facility zones, etc. intends to acquire a factory, etc. in an industrial facility zone, etc., he/she can conclude a leasing business occupation contract pursuant to Article 38-2 only after an advance occupancy contract, etc. is concluded for his/her unique business and a report on completion of establishment of factory, etc. or report on business commencement for the unique business is completed.

In conclusion, in this case, an advance occupancy contract, etc. on a unique business should be concluded before concluding a leasing business occupancy contract.