Invest KOREA

"Yes, in this case, the shipowner can have the seafarer qualified for passenger safety management to concurrently hold the role as a seafarer for safety management of passengers.

Under Article 64 (5) of the Seafarers' Act and Article 21 (4) of the Enforcement Decree of the same Act, it is prescribed that the owner of a ship shall have on board a seafarer who is qualified for passenger safety management as a seafarer for safety management of passengers. Also, in the Enforcement Rules of the same Act, a seafarer for safety management of passengers is defined as a seafarer who completed advanced safety training course for passenger ships, and penalty is imposed where a shipowner does not have a seafarer for safety management of passengers on board pursuant to Article 173 (1) 8 of the Act. And considering the fact that administrative regulations that act as the basis for administratively disadvantageous measures should be interpreted and applied in a strict manner and should not be extensively or analogically interpreted, Article 64 (5) of the Seafarers' Act should be interpreted in a strict manner.

However, Article 64 (5) of the Seafarers' Act only prescribes that shipowners should ensure that seafarers who are qualified for passenger safety management are "on board", and does not have explicit regulations that require the seafarer for safety management of passengers to be an additional seafarer or ban the seafarer from concurrently holding another role.

Moreover, where there are no explicit regulations banning the concurrent holding of roles, concurrent holding of roles should be permitted or restricted based on consideration of the characteristics of the work concerned or whether work will be disrupted. But because the Enforcement Rule of the Seafarers' Act prescribes that the shipowner shall assign duties such as dispensing and demonstrating how to put on live saving appliances such as lifejackets in case of emergency, assisting passengers in boarding a survival craft and other passenger supporting duties in emergency as ordered by the captain to seafarers for safety management of passengers, which implies that such seafarers' duties cannot be considered full-time work, it cannot be considered that it is banned to have a seafarer on board to concurrently hold the post.

In addition, under Article 65 (1) of the Act, a shipowner shall fix the full strength of necessary seafarers (hereinafter "complement") to satisfy Articles 60 (Working Hours and Time to Rest), 64 (Work on Board of Qualified Seafarers) and 76 (Providing Meals in Ships) and obtain approval therefor from the competent maritime affairs and port authorities. Also, the Enforcement Rule of the same Act requires that the certificate of the complement should state the total number of persons requiring additional qualification and prescribes that additional complements are not required for medical care persons, emergency care persons, seafarers of ships carrying dangerous cargoes, life-raft operators and seafarers for passenger safety management. Considering such facts, it should be deemed that seafarers for passenger safety management who are classified as seafarers requiring additional qualification are included in the regulations on complements under the premise that the position can be concurrently held.

In consideration of the above, it is reasonable to conclude that where a seafarer of a passenger ship is qualified as a seafarer for passenger safety management, the shipowner can allow the said seafarer to concurrently hold the post of seafarer for passenger safety management. "

"Registration of a construction business as prescribed in the main sentence of Article 9 (1) of the Framework Act on the Construction Industry, etc. (hereafter “the Act”) cannot be filed with two or more individuals as its joint representatives.

The main sentence of Article 9 (1) of the Act prescribes that a person who intends to run a construction business shall file for registration with the Minister of Land, Infrastructure and Transport by category of business, and Article 10 of the same Act states that the particulars that constitute the standards for registration of construction business such as technological capabilities, capital, facilities and equipment, and other necessary matters shall be prescribed by Presidential Decree. Also, Article 13 (1) of the Enforcement Decree of the Act, which provides matters delegated by the Act and those necessary for the enforcement thereof, prescribes the standards for registration of a construction business. For example, a business shall have secured a certain number of technical workforce with qualifications prescribed by the National Technical Qualifications Act as well as capital by category of business and office (subparagraph 1), and financial institutions, etc. designated by the Minister of shall evaluate the financial status and credit status, etc. of persons applying for registration of the possible amount of guarantee, and according to the results of relevant evaluations, obtain security or a deposit of cash within the capital by business type (subparagraph 1-2). The purpose of such regulations is to prevent faulty constructions and to protect the lives and properties of people by only allowing persons that meet the minimum qualifications that guarantee proper construction to register and execute construction. In this regard, regulations related to the registration of a construction business should be interpreted considering such aforementioned purpose.

In addition, a “constructor” who registered a construction business by meeting certain registration conditions pursuant to the main sentence of Article 9 (1) and 10 of the Act and operates the business is a person who is granted the status of a construction business operator under public law. They face sanctions such as cancellation of registration if they no longer satisfy the registration standards, and as a constructor, they may be punished for violation of the Act and other laws related to the safety of construction works, which means that a constructor has public law relations with the relevant laws. Therefore, it is difficult to assume that an unlimited number of individuals or companies can jointly acquire a status as a constructor and become subject to the rights and responsibilities set forth in the Act.

To make it mandatory to fulfill the obligation to register a construction business and to enforce compliance with the registration standards, the Act has some strict regulations. For example, the Act prescribes that persons who did not register construction business or operated a construction business after registering the business through improper means are subject to criminal punishment (Article 96), prohibits the lending of construction business registration certificate to another person (Article 21), and restricts the qualification of contractors without adequate execution capacity based on his/her performance records of construction works, capital, etc. and public announcement records (Article 23, 25). In this regard, if it can be assumed that two or more individuals can become joint representatives and register a construction business, it will not be possible to prevent a qualified person from becoming joint representatives with non-qualified persons, which may disable the regulations such as prohibition of lending construction business registration certificate, assessment of execution capacity and restriction of qualification of contractor.

Moreover, when deciding whether it can be permitted to have a construction business be registered by two or more joint representatives, the fact that the following matters are not clearly stipulated by law should be considered:

- Up to what extent the contribution of each joint representative should be recognized when determining whether a construction business satisfies the registration standards (Article 10)

- Whether registration of construction business can be cancelled if one or more joint representatives are disqualified for registration of construction business (Article 13 (1), 83)

- Where one or more joint representatives dies, whether their heir can inherit their status as constructor (Article 17 (4))

- Where the penalty provisions of Article 93 (1), etc. and joint penalty provisions of Article 98 of the Act apply, whether the representatives shall be held jointly accountable or a single representative shall be solely accountable

Therefore, based on a comprehensive interpretation of the construction business registration system, purpose, structure, etc. of the Act, it shall be deemed that a person who intends to register a construction business under the main sentence of Article 9 (1) should be deemed a single individual or a single company. "

"Yes. In this case, the product is subject to order to collect, etc. pursuant to Article 8 (1) 1 of the Act.

Article 5 (1) of the Act prescribes that a person who intends to manufacture an electrical appliance subject to safety certification or intends to manufacture such product abroad and import it to Korea should obtain safety certification for each model of electrical appliance subject to safety certification, while stipulating that an exceptional case for which safety certification is not required is when the confirmation of the Minister of Trade, Industry and Energy is obtained as an electrical appliance subject to safety certification that is manufactured for the purpose of export (subparagraph 1). According to the said regulation, a product manufactured by a person manufacturing an electrical appliance subject to safety certification should, in principle, obtain safety certification, and in order to be exempted from obtaining a safety certification, the product should both “be manufactured for the purpose of export” and “obtain confirmation from the Minister of Trade, Industry and Energy”.

Also, Article 8 (1) 1 of the Act only prescribes that the mayor or provincial governor can order the collection, etc. of an electrical appliance subject to safety certification when it has not obtained a safety certification, and does not classify the types of appliances subject to collection, etc. pursuant to the purpose of manufacturing the product.

If so, it should be considered that even if such appliance is manufactured for the purpose of export, it is subject to safety certification if it has not obtained the confirmation of the Minister of Trade, Industry and Energy. In this regard, if the appliance did not go through the procedure for exemption of safety certification as prescribed by law, it shall be deemed that the appliance did not fulfill its obligation to obtain safety certification.

Therefore, the said product is subject to order for collection, etc. under Article 8 (1) 1 of the Act, although whether a mayor or provincial governor can actually order the collection, etc. of a product that has been exported considering the executability of the law in a foreign country should be discussed as a separate matter. "

"Yes, such act is subject to administrative disposition pursuant to Articles 37 and 49 of the Foreign Trade Act.

Where laws with varying legislative purposes each prescribe different requirements for performing a certain act and a specific act meets the requirements of two or more laws, all of such laws shall apply, as long as it is not interpreted that one law is applied exclusively over another law.

The purpose of the Fair Trade Act is to contribute to the growth of the national economy by promoting foreign trade, establishing a fair trade system, maintaining international balance of payments, and expanding commerce (Article 1), while that of the Act on Prevention of Divulgence and Protection of Industrial Technology is to prevent undue divulgence of, and protect, industrial technology in order to strengthen the competitiveness of Korean industries and contribute to national security and development of the national economy (Article 1). In other words, the two laws are separate laws with different legislative purposes, and it cannot be considered that one law applies exclusively over another law.

However, in the main sentence of Article 19 (2) of the Foreign Trade Act excluding its subparagraphs, it is prescribed that any person who intends to export strategic items shall obtain export permission, and Article 31 (1) 1 and Subparagraph 1 of Article 49 of the same Act stipulate that persons who exported strategic items without obtaining export permission shall be placed with a restriction on exportation or importation or ordered to take a training course. Also, under Article 11 (4) of the Act on Prevention of Divulgence and Protection of Industrial Technology, it is prescribed that where an institution possessing industrial technology which has and manages national core technology, other than that approved pursuant to paragraph 1, intends to export the national core technology, it shall report it to the Minister of Trade, Industry and Energy in advance.

If so, where intending to export a technology that is considered a strategic item pursuant to the Foreign Trade Act, it is apparent that an export permission according to the Foreign Trade Act should be obtained and a report under the Act on Prevention of Divulgence and Protection of Industrial Technology should be filed. Therefore, if such technology is exported without obtaining an export permission or filing a report, it shall be deemed that an administrative disposition shall apply pursuant to Articles 31 and 49 of the Foreign Trade Act. "

"Yes, such parts are considered “arms” under Article 58 of the Enforcement Rules of the Aviation Business Act.

Pursuant to Article 58 of the Aviation Business Act and Article 100 (1) 2 of the Aviation Safety Act, no person shall transport munitions by operating flights using aircraft that has a foreign nationality which takes off from an airport in the Republic of Korea and lands outside the airspace of the Republic of Korea, while such transport is permitted where he or she has obtained permission from the Minister of Land, Infrastructure and Transport. Also, "munitions prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport” under Article 58 of the Enforcement Rules of the Aviation Business Act is defined as arms and ammunitions, but there are no definitions on arms.

If so, the meaning of “arms” in the law should be interpreted based on the structure, purpose of the law and its related laws. And if “arms” is defined as an item with a similar purpose or nature, it should be interpreted that a similar level of restriction or management that applies to the item shall apply to arms as well.

In addition, under the Act on the Management of Military Supplies, which prescribes the basic matters and procedures related to the management of military supplies for their efficient and systematic management, it is prescribed that munitions shall be classified into war reserve items and conventional items (Article 3). And according to the Enforcement Decree of the same Act, war reserve items are combat equipment (including aircraft), combat support equipment, and auxiliary equipment necessary for their operations, repair parts and ammunitions, while munitions other than war reserve items are conventional items.

Also, the Directive on Management of Military Supplies (Ministry of Defense Directive no. 2322) classifies military supplies into types 1 through 10 according to their use and nature. Among those, type 7 (equipment) military supplies are sub-classified into firearms, special arms and aircraft. The main items under the category of aircraft are mission fighters, trainers, and repair equipment. In the subcategory of “aircraft” under type 9 (repair parts/tools) which prescribes repair parts for equipment, etc., the main items are aircraft equipment repair parts. Also, under attached Table 3 of the same Directive, which classifies military supplies according to their function, mission fighters, trainers and repair parts for such equipment are classified under the function of “aircraft”.

As such, the laws related to the management of military supplies classify aircraft as the same type as firearms or special weapons that can be considered wartime equipment and also prescribe that trainers and repair parts have the function of “aircraft”. Therefore, trainers used for the basic flight training of foreign air force student pilots and the parts used for such trainers are military supplies falling under type 7 and type 9 trainers and repair parts, and it shall be appropriate to consider them as “arms” banned from transportation using an aircraft with foreign nationality. "

“Obtaining authentication from a notary public in a foreign country” as prescribed by the proviso of Article 10-2 (1) of the Marriage Brokers Act means obtaining authentication from a notary public in a country other than the Republic of Korea. Under Article 10-2 (1) of the Marriage Brokers Act, an international marriage broker shall obtain from the user that has entered into a marriage brokerage contract and the other party to marriage brokerage personal information such as: marriage history (subparagraph 1); health conditions (subparagraph 2); and occupation (subparagraph 3) and obtain the authentication of the notary public of each country concerned and provide the other party and the user the said information in writing (main sentence). In addition, the Article prescribes that the user or the other party who has obtained authentication from a notary public in a foreign country shall obtain confirmation from the consul in charge of notarization in accordance with Article 30 (1) of the Act on Notarial Acts Done at Diplomatic Missions Abroad (provision).

A “foreign country” generally means countries other than the Republic of Korea. Also, the proviso of Article 10-2 (1) of the Marriage Brokerage Act does not state “countries other than the country concerned”, and the information listed in the subparagraphs of the Article are personal information such as marital history (subparagraph 1) and criminal records (subparagraph 4) that can be certified only through documents issued in the country of the nationality of the user or the other party to the marriage brokerage. Considering such facts, it is reasonable to consider that “foreign country” in the same Article refers to countries other than the Republic of Korea. If we suppose that “foreign country” is considered a country other than a country of the nationality of the user or other party to the marriage brokerage, the proviso of the said Article shall refer to obtaining an authentication from a notary public from a country other than the country concerned although the main sentence of the Article clearly states “notary public of each country concerned”. If so, the proviso of the Article shall be prescribing cases other than those prescribed in the main sentence, making it contradictory to the proper structure of main sentence and proviso.

In regard to the procedure for notarization of the personal information of the user or other party to the marriage brokerage, the regulation was newly inserted with the partial amendment of the Marriage Brokerage Act on Feb. 1, 2012. The regulation was newly inserted for the following purposes: to prevent marriages based on false personal information by having the information obtain authentication by a notary public considering that such information may be forged by an illegal international marriage broker and it is difficult to guarantee the authenticity of personal information in countries where such records are not properly managed; and to confirm that the information has been lawfully notarized by the diplomatic mission in the relevant country since each country has different notarization regulations.

Considering such purposes of the regulation, it is reasonable to conclude that the proviso of Article 10-2 (1) of the Marriage Brokerage Act stipulates that “the user or the other party who has obtained authentication from a notary public in a foreign country shall obtain confirmation from the consul in charge of notarization” to make it mandatory to obtain additional confirmation from the consul pursuant to Article 30 (1) of the Act on Notarial Acts Done at Diplomatic Missions Abroad even when the user and the other party obtained authentication from their respective countries, so that the damage that may be done to the user and the other party due to false information can be minimized considering the fact that international marriages heavily rely on information gained from the marriage broker. "

Subparagraph 18 of Article 2 of the Industrial Cluster Act defines "occupant enterprise" as an enterprise qualified under Presidential Decree, which has entered into an occupancy agreement pursuant to Article 38 (1) or (3), among those who intend to operate manufacturing business, knowledge business, information and communications business, resource storage business and other business prescribed by Presidential Decree in an industrial complex. According to subparagraph 19 of the same Act, the term "support institution" means a person qualified under Presidential Decree which has concluded an occupancy agreement pursuant to Article 38 (3), among those who intend to engage in financial business, insurance business, medical business, educational business, and other business prescribed by Presidential Decree necessary to assist occupant enterprises in an industrial complex. As such, the Act classifies occupant enterprises and support institutions as different groups, and prescribes their respective types of business, purpose and functions in an industrial complex, and legal ground for the conclusion of an occupancy contract.

Also, Article 15 (2) of the Industrial Cluster Act states that where an occupant enterprise installs facilities in an industrial facilities zone according to its business plan, it shall report the commencement of business to a management agency after satisfying the requirements for standard building area ratio. In addition, Article 33 (5) of the Act prescribes that the master plan for managing industrial complexes shall include matters concerning the type of business of occupants and qualifications for the occupant enterprise (subparagraph 2) and matters concerning the establishment and operation of support facilities (subparagraph 5), and the main sentence of paragraph 6 of the same Act classifies the zones of the site of an industrial complex into industrial facilities zones, support facilities zones, public facilities zones and green belt zones according to their use. And Article 43 (3) of the Enforcement Decree of the Act prescribes that when placing factories and types of business in an industrial zone, a management agency shall formulate a plan for the placement of types of business and place factories and types of business according to such plan.

Under Article 40 (2) of the Enforcement Decree of the Act, the representative of occupant enterprises and support institutions shall be general members of a consultative council of occupant enterprises, and pursuant to subparagraph 3 of Article 38 of the same Enforcement Decree, a consultative council shall be comprised of “90% or more of the occupant enterprises” of the relevant industrial complex as members.

As can be seen from the above regulations, the Act distinguishes occupant enterprises from support institutions and applies a separate set of rules only for occupant enterprises, and support institutions’ scope of business is confined to businesses necessary to assist occupant enterprises in an industrial complex. Also, under the classification of a site of an industrial complex by use, industrial facilities zones and support facilities zones are different zones. Considering such, it is clear that the Act classifies occupant enterprises and support institutions as different categories, so support institutions cannot be deemed to be included in the scope of occupant enterprises. "

"In this case, the aircraft is not considered a “military aircraft” under the Act.

Under Subparagraph 1, Article 2 of the Military Aircraft Airworthiness Certification Act, “military aircraft” is defined as aircraft used by the military or aircraft for military use to be exported overseas. Also, Subparagraph 1, Article 2 of the Act on the Operation, etc. of Military Aircraft defines “military aircraft” as airplanes, helicopters and other aircraft used by the military. However, Article 3 (1) of the Aviation Safety Act states that “This Act shall not apply to military aircraft and a person engaged in aviation service related thereto”. The objective of the Aviation Safety Act is to protect the lives and property of people by prescribing the methods for the safe aviation of aircraft such as airplanes (Article 1). Therefore, unless there is a special clause such as the aforementioned Article 3 (1) of the Act that prescribes exceptions to the law, the law “generally” applies to the safety standards, aviation standards, etc. of aircraft. However, Article 2 of the Act on the Operation, etc. of Military Aircraft which prescribes the matters to be observed for the safe flight of military aircraft, etc. defines military aircraft as aircraft “used by the armed forces”, but does not prescribe matters on aircraft for military use to be exported overseas. In this regard, if an aircraft for military use to be exported overseas does not fall under military aircraft as prescribed by the Act on the Operation, etc. of Military Aircraft, it should be regarded that the Aviation Safety Act applies in respect to the operation, etc. of aircraft. Also, “military aircraft” under Article 3 (1) of the Aviation Safety Act is a summarized term for “aircraft, airship, glider or helicopter used in the military” under Article 2-3 (1) of the Aviation Act (presently the Aviation Safety Act), and there is no reason to regard that the term was used to define the above in a different manner. Therefore, it will be appropriate to restrict “military aircraft” under Article 3 (1) of the Aviation Safety Act to aircraft used in the military, considering the legislative history of the Act. In addition, given that the purpose of the Act on the Operation, etc. of Military Aircraft is to prescribe matters on the flight standards of military aircraft and flight restrictions in restricted airspace and to restrict operation of aircraft where there are urgent circumstances concerning air operations such as wartime, it will not be in line with the purpose of legislation of the Act to apply the Act on the Operation, etc. of Military Aircraft while excluding the Aviation Safety Act to aircraft to be exported that are not considered as “military aircraft” under the Act on the Operation, etc. of Military Aircraft. Based on the above, it can be concluded that where a test flight of an aircraft for military use to be exported is conducted in Korea before it is delivered overseas, the aircraft is not considered a “military aircraft” under Article 3 (1) of the Aviation Safety Act to which the same Act does not apply. "

"Such in-flight meals are not considered “foods to be exported”.

Under Articles 7 (1) and (2) of the Food Sanitation Act, the purpose of which is to contribute to the improvement of public health by preventing sanitary risk caused by foods, the standards and specifications concerning foods or food additives are prescribed. And while paragraph 3 of the same Article prescribes that “Notwithstanding paragraphs (1) and (2), the standards and specifications for foods or food additives to be exported may follow the standards and specifications stipulated by importers”, the Act does not define the meaning of “export”. In this regard, the meaning of “foods to be exported” should be defined based on a consideration of what is prescribed by the Act and the purpose of legislation of the Act, and also the Act’s relation to other laws legislated for a similar purpose and the socially accepted meaning of the term. Under subparagraph 1 of Article 2 of the Foreign Trade Act, which prescribes matters related to foreign trade, “export” is defined as “the exportation and importation of goods, services”. Also, Subparagraph 3 of Article 2 of the Act prescribes the term as “moving goods from the domestic area to a foreign country for sale, exchange, etc”. Therefore, the moving of goods from Korea to overseas due to sales, exchange, etc. means that the goods are moved to fulfill the sales contract, etc. However, where in-flight meals are produced in a bonded factory and supplied to a foreign aircraft that flies from Korea to a foreign country, the in-flight meal supply contract is fulfilled by supplying in-flight meals from a bonded factory to a foreign aircraft in Korea. In this regard, the transaction cannot be considered export, and even if the supplied in-flight meals are moved overseas, it is an act of fact that is performed after the fulfillment of the supply contract. Furthermore, the Enforcement Decree of the Foreign Trade Act prescribes the scope of foreign exchange earnings in Article 26, and “export” (subparagraph 1) and “Domestic sale of goods, etc., which falls under the criteria determined and publicly announced by the Minister of Trade, Industry and Energy” (subparagraph 5) are classified separately. And under Subparagraph 5 of Article 31 of the Regulations on Foreign Trade Management (public notice of the Minister of Trade, Industry and Energy), “refueling or providing supplies for vessels (aircraft) to foreign vessels (aircraft) in return for foreign exchange” is prescribed as domestic sale of goods, etc., not export. Considering the above, the act of supplying in-flight meals produced and processed in a bonded factory to a foreign aircraft flying from Korea to a foreign country cannot be considered “export” under Subparagraph 3 of Article 2 of the Enforcement Decree of the Foreign Trade Act. Moreover, Article 7 (3) of the Food Sanitation Act prescribes that the standards and specifications for foods to be exported may follow the standards and specifications stipulated by importers instead of those of Paragraphs 1 and 2 of the same Article because foods to be exported are not for consumption by Korean nationals and therefore not applying the regulation does not violate the legislative purpose of the Act, which is to contribute to the improvement of public health by preventing sanitary risk caused by foods. And when considering that most passengers on a flight from Korea bound to a foreign country are Korean nationals, it shall be in line with the legislative purpose of the Act to have the in-flight meals supplied to such aircraft conform to the standards and specifications under Article 7 (1) and (2) of the Act. "

"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.

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. "