ENFORCEMENT DECREE OF THE ACT ON ASSISTANCE TO KOREAN OFF-SHORE ENTERPRISES IN REPATRIATION
Presidential Decree No. 24903, Dec. 4, 2013
Amended by Presidential Decree No. 27960, Mar. 27, 2017
Presidential Decree No. 28212, Jul. 26, 2017
| Article 2 (Enterprises under De Facto Control) |
In order for an enterprise to be recognized as an enterprise under de facto control as provided for in subparagraph 1 (a) of Article 2 of the Act on Assistance to Korean Off-Shore Enterprises in Repatriation (hereinafter referred to as the "Act"), at least 30/100 of the total number of outstanding stocks (excluding non-voting stocks; hereinafter the same shall apply) or the total stockholders' equity of the enterprise (hereinafter referred to as "repatriating enterprise") shall be owned by a national of the Republic of Korea (including overseas Koreans qualified for the status of sojourn under Article 5 of the Act on the Immigration and Legal Status of Overseas Koreans; hereinafter the same shall apply) or a corporation incorporated under the law of the Republic of Korea (including foreign-capital invested companies defined in subparagraph 6 of Article 2 of the Foreign Investment Promotion Act; hereinafter referred to as "corporation of the Republic of Korea"), solely or jointly with any of the persons specified by Ordinance of the Ministry of Trade, Industry and Energy, in any of the following cases: | 1. | Where the representative of the repatriating enterprise is a national of the Republic of Korea; |
| 2. | Where a national or a corporation of the Republic of Korea is the largest stockholder or shareholder of the repatriating enterprise. If any statute or policy of the country in which the repatriating enterprise is located restricts the holding of stocks or equity shares in such cases, the stocks or equity shares subject to such restriction shall be excluded in determining the largest stockholder or the owner of the largest equity shares; |
| 3. | Where a national or a corporation of the Republic of Korea lends assets to the repatriating enterprise or guarantees debts of the repatriating enterprise in an amount exceeding the value of the total number of outstanding stocks or the total stockholders' equity; |
| 4. | Where a national or a corporation of the Republic of Korea holds the power to appoint or dismiss the representative director of the repatriating enterprise, or has appointed or holds the power to appoint at least 50/100 of executive officers of the repatriating enterprise under an agreement entered into with major stockholders of the repatriating enterprise (referring to stockholders who hold at least 10/100 of the total number of outstanding stocks or total stockholders' equity of the repatriating enterprise or who exercise de facto control over major issues regarding the management of the repatriating enterprise, including the appointment and dismissal of executive officers). |
| Article 3 (Identity, etc. of Places of Business) |
| (1) | The new establishment or expansion of a place of business in the Republic of Korea under subparagraph 3 of Article 2 of the Act means that a person establishes a new factory, as provided for in subparagraph 21 of Article 2 of the Industrial Cluster Development and Factory Establishment Act, or expands a factory, as provided for in subparagraph 22 of Article 2 of said Act (excluding the expansion of a factory site but including an increase of the total floor area of a factory building), or that a person buys or leases an existing factory and installs manufacturing facilities (including facilities for trial production) in the factory. |
| (2) | The products produced in any place of business newly established or expanded in the Republic of Korea pursuant to paragraph (1) are classifiable into the same classes as those of the products produced in the corresponding place of business overseas, according to the Korea Standard Industrial Classification publicly notified by the Commissioner of the Statistics Korea pursuant to Article 22 of the Statistics Act. |
| Article 4 (Enterprises in Course of Repatriation to Korea) |
"An enterprise in the course of repatriation to Korea, following the procedure prescribed by Presidential Decree" in subparagraph 4 (b) of Article 2 of the Act means any of the following enterprises in the process of repatriation to the Republic of Korea: | 1. | An enterprise that completed the liquidation, transfer or downsizing of its place of business overseas but has not completed the establishment or expansion of a place of business in the Republic of Korea; |
| 2. | An enterprise that completed the establishment or expansion of a place of business in the Republic of Korea but has not completed the liquidation, transfer or downsizing of its place of business overseas; |
| 3. | An enterprise that undertakes the procedure determined and publicly notified by Ordinance of the Ministry of Trade, Industry and Energy for the establishment or expansion of a place of business in the Republic of Korea to produce products identical with those produced in its place of business overseas. |
| Article 5 (Committee for Assisting Repatriating Enterprises) |
| (1) | In order to deliberate on matters subject to consultation with related agencies under Article 6 of the Act, the Committee for Assisting Repatriating Enterprises (hereinafter referred to as the "Committee") shall be established and operated as an organization under the direction of the Minister of Trade, Industry and Energy. |
| (3) | The Committee shall comprise not more than 15 members, including one chairperson. |
| (4) | The Minister for Trade shall serve as chairperson of the Committee; and the Committee shall be composed of the following persons: <Amended by Presidential Decree No. 28212, Jul. 26, 2017> |
| 1. | Persons appointed by the head of each ministry or agency from among members of the Senior Executive Service in charge of assistance to Korean off-shore enterprises or repatriating enterprises in the Ministry of Strategy and Finance, the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Environment, the Ministry of Employment and Labor, the Minister of Land, Infrastructure and Transport, the Ministry of SMEs and Startups or the Financial Services Commission; |
| 2. | Persons appointed by the head of each central administrative agency or local government involved in matters subject to deliberation and resolution under paragraph (2) from among public officials of such central administrative agency or local government; |
| 3. | The president of the Korea Trade-Investment Promotion Agency. |
| (5) | The chairperson shall represent the Committee and shall administer all affairs of the Committee. If the chairperson of the Committee is unable to perform his/her duties due to an unavoidable circumstances, the committee member designated in advance by the chairperson shall act on behalf of the chairperson. |
| (6) | The chairperson shall convene meetings of the Committee and shall take the chair at such meetings. |
| (7) | A majority of current members of the Committee shall constitute a quorum; and any resolution thereof shall require a concurring vote of at least a majority of those present. |
| (8) | The Committee may summon experts and business persons in connection with any issue brought for deliberation to attend a meeting of the Committee and express their opinions. |
| (9) | For the execution of administrative affairs of the Committee, the Committee shall have one secretary, who shall be appointed by the Minister of Trade, Industry and Energy from among public officials of the Ministry of Trade, Industry and Energy. |
| (10) | Except as otherwise provided for in paragraphs (1) through (9), matters necessary for the operation of the Committee shall be determined by the chairperson after resolution by the Committee. |
| Article 6 (Requirements for Selection of Repatriating Enterprises Eligible for Assistance) |
| 2. | The off-shore enterprise satisfies the requirements determined and publicly notified by the Minister of Trade, Industry and Energy to attain the purposes of the policy for the system for assisting repatriating enterprises to the Republic of Korea. |
| Article 7 (Deadline, etc. for Notification of Results of Selection of Repatriating Enterprises) |
| (1) | Upon the receipt of an application for the selection of a repatriating enterprise eligible for assistance pursuant to Article 7 (2) of the Act, the Minister of Trade, Industry and Energy shall notify the applicant of the results of selection within 60 days from the filing date of the application: Provided, That if it is necessary to extend the deadline for notification for the supplementation of submitted documents, the deadline may be extended as prescribed by Ordinance of the Ministry of Trade, Industry and Energy. |
| (2) | If an applicant fails to be selected as a repatriating enterprise eligible for assistance, the Ministry of Trade, Industry and Energy shall notify the applicant of the reason for its disqualification, when the applicant is notified of the results of selection under paragraph (1). |
| Article 8 (Matters subject to Notification of Changes) |
| 1. | De facto control over the relevant Korean off-shore enterprise under Article 2; |
| 2. | The type of business and main products of the relevant repatriating enterprise; |
| 3. | Matters specified by Ordinance of the Ministry of Trade, Industry and Energy subject to notification in order to ascertain any changes in repatriating enterprises selected as eligible for assistance. |
| Article 9 (Grounds for Revocation of Selection of Repatriating Enterprises Eligible for Assistance) |
"If the enterprise fails to meet any requirement prescribed by Presidential Decree" in Article 8 (1) 6 of the Act means any of the following cases: | 1. | If a repatriating enterprise that has downsized its place of business overseas pursuant to Article 7 (1) 2 of the Act still produces its products more than the reduced production quantity specified by Ordinance of the Ministry of Trade, Industry and Energy in its place of business overseas during the period determined and publicly notified by the Minister of Trade, Industry and Energy; |
| 2. | If a repatriating enterprise that has a place of business in the Republic of Korea fails to maintain the existing place of business during the period determined and publicly notified by the Minister of Trade, Industry and Energy; |
| 4. | If the rejection of, interference with, or evasion by a repatriating enterprise of a fact-finding survey conducted under Article 9 (2) of the Act makes it impracticable to ascertain whether the repatriating enterprise has performed the relevant repatriation plan; |
| Article 10 (Entrustment, etc. of Administrative Work) |
| (1) | Pursuant to Article 10 of the Act, the Minister of Trade, Industry and Energy shall entrust the performance of the following business affairs to the Korea Trade-Investment Promotion Agency established pursuant to the Korea Trade-Investment Promotion Agency Act (hereinafter referred to as the "Korea Trade-Investment Promotion Agency"): |
| 1. | Receiving documents submitted with applications for the selection of repatriating enterprises eligible for assistance under Article 7 (2) of the Act and verifying facts relevant to such documents; |
| (2) | When the president of the Korea Trade-Investment Promotion Agency completes the performance of any business affair entrusted under paragraph (1), he/she shall report the details thereof to the Minister of Trade, Industry and Energy. |
| (3) | The guidelines for the performance of business affairs under paragraphs (1) and (2) and other necessary matters may be determined by the Minister of Trade, Industry and Energy. |
| Article 11 (Areas, etc. Eligible for Financial Assistance) |
| (2) | Pursuant to Article 12 (2) of the Act, the Minister of Trade, Industry and Energy may provide repatriating enterprises eligible for assistance with subsidies for the purchase of land and the investment in plants and employment subsidies: Provided, That financial assistance may be restricted to enterprises belonging to any of the business groups subject to limitations on cross shareholding under Article 14 of the Monopoly Regulation and Fair Trade Act. |
| Article 12 (Composition, Operation, etc. of Support Center for Repatriating Enterprises) |
| (1) | The support center for repatriating enterprises under Article 17 (1) of the Act (hereinafter referred to as the "support center for repatriating enterprises") shall be composed of executive officers and employees of the Korea Trade-Investment Promotion Agency and outside members temporarily dispatched pursuant to paragraph (2). |
| (2) | Upon the receipt of a request to dispatch executive officers and employees pursuant to Article 17 (2) of the Act, the head of any related agency shall select persons suitable for the performance of duties and shall dispatch them to the support center for repatriating enterprises, except in extenuating circumstances; and the head of a related agency shall consult with the president of the Korea Trade-Investment Promotion Agency when he/she intends to cancel the dispatching of any executive officer or employee during the term of dispatch. |
| (3) | The executive officers and employees dispatched from related agencies to the support center for repatriating enterprises pursuant to paragraph (2) shall perform their duties under the direction and supervision of the president of the Korea Trade-Investment Promotion Agency. |
| (4) | The president of the Korea Trade-Investment Promotion Agency shall prepare a report on the results of assistance provided under Article 17 (1) during the preceding year and a work plan for the relevant year and shall submit the report and plan to the Minister of Trade, Industry and Energy by January 31 each year. |
| (5) | The Minister of Trade, Industry and Energy may subsidize the support center for repatriating enterprises for operating expenses as necessary. |
| (6) | Except as otherwise expressly provided for in paragraphs (1) through (5), detailed matters necessary for the composition, operation, etc. of the support center for repatriating enterprises shall be determined by the president of the Korea Trade-Investment Promotion Agency. |
| Article 12-2 (Processing of Personally Identifiable Information) |
[This Article Newly Inserted by Presidential Decree No. 27960, Mar. 27, 2017]
| Article 13 (Guidelines for Imposition of Administrative Fines) |
| Article 14 (Review of Regulations) |
The Minister of Trade, Industry and Energy shall review the validity of criteria for the recognition of products from different places of business as identical products under Article 3 (2) and shall take measures for improvement, etc. by December 31, 2016.
ADDENDUM
This Decree shall enter into force on December 7, 2013.
ADDENDUM <Presidential Decree No. 27960, Mar. 27, 2017>
This Decree shall enter into force on March 30, 2017. (Proviso Omitted.)
ADDENDA <Presidential Decree No. 28212, Jul. 26, 2017>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation.
Articles 2 through 4 Omitted.