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Generally, in the event of an investment in a stock company, a foreigner can complete the registration of capital increase by submitting a certificate for custody of stock subscription payment received from the beneficiary bank (or a certificate of balance) and other required documents to the competent court. In this case, the domestic stock company can request a transfer of the funds in the bank’s custody to its corporate account. Upon the completion of the transfer, the funds become available for withdrawal. (In the event of the receipt of a certificate of balance, the funds become available for withdrawal after a foreign investor completes the transfer of funds from his/her account to a corporate account of the domestic company.)
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A foreign investor should notify foreign investment and use the notification form as a basis to open a temporary account at a domestic bank and remit funds to the account under his/her name.
◎ Or a foreign investor can open an international account (a nonresident foreign currency account) under his/her name in advance and remit funds to the account. This method is more complicated because several documents are required by the bank.*
◎ Transferring funds directly to a bank account under the name of a domestic corporation that has been established is not recommended because the funds can be misappropriated for purposes other than share subscription payment. If a direct transfer to a domestic company’s bank account is inevitable (some governments require foreign investment funds to be transferred directly to a bank account of a domestic company) and if such transfer is made and can be verified (submission of both a remittance statement certifying the investment and a certificate of purchase/deposit of foreign currency), such investment can be recognized as foreign investment.
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A foreign investor can freely remit to foreign countries the dividends accruing from the stocks he/she has acquired or proceeds from the sale of those stocks (guarantee of remittance to foreign countries).
◎ A foreign investor is treated in the same manner as Korean nationals (domestic corporations). For example, when investing in business categories eligible for recognition as small and medium start-up enterprises, a foreign investor can receive the same benefits as those granted to domestic companies.
◎ Tax reductions and/or exemptions (when meeting the requirements under the Foreign Investment Promotion Act and the Restriction of Special Taxation Act)
– Reductions and exemptions for income tax and corporate tax granted under the Restriction of Special Taxation Act (Article 121-2 and Article 116-2 of the Enforcement Decree of the Act) were abolished as of December 31, 2018, as the Act was amended in response to an OECD request to reform discriminative investment support schemes in Korea as well as to Korea’s inclusion in the list of “non-cooperative jurisdictions in tax matters” in 2017. Reductions and exemptions for local taxes and customs duties in line with global standards are still available (e.g., businesses accompanying technologies for new growth engine industries, tenant companies in individual-type foreign investment zones, complex-type foreign investment zones, free economic zones, and free trade zones).
◎ Cash grants (when meeting certain requirements)
– Eligibility: When the foreign investment ratio is not less than 30 percent, an investment in businesses accompanying technologies in new growth engine industries, a greenfield investment in advanced technology and products or parts & materials manufacturing business, an investment with a large scale of job creation (50-300 jobs depending on the business sector), or an investment that greatly contributes to the domestic economy will be reviewed by the Foreign Investment Committee and be awarded cash grants, if approved.
◎ Location support (when meeting certain requirements) (e.g., individual-type foreign investment zones, complex-type foreign investment zones, service-type foreign investment zones)
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Under Article 21(2) of the Foreign Investment Promotion Act, a foreign investor may partially register as a foreign-invested company before he/she has completed the payment for the object of investment or the acquisition of stocks if the partial investment that he/she has executed satisfies the minimum requirements for foreign investment (partial registration).
◎ In other words, if the partial investment is not less than KRW 100 million and the ratio of the stocks acquired is not less than 10 percent, the actual amount paid (in KRW and USD) for the investment is indicated as the investment amount and the percentage of stocks corresponding to the actual amount paid as the investment ratio on the certificate of registration of a foreign-invested company.
◎ When a foreign investor is entitled by contract to receive the entire stocks before making a full payment, the investment ratio agreed by contract can be partially registered as an exception. However, as long as a foreign-invested company remains in a state of partial registration where the payment for the stocks has not been fully settled, a transfer of stocks or a capital reduction shall not be recognized.
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When foreign-invested company A establishes new company B through a corporate split (a spin-off)*, this results in a capital reduction for the surviving foreign-invested company A. In this case, the foreign investor of company A should alter a registration of a foreign-invested company pursuant to Article 21 of the Foreign Investment Promotion Act to reflect the reduced amount of capital for the foreign investor and subtract the amount from the foreign investment amount.
◎ The foreign investor of new company B is also the foreign investor of foreign-invested company A and should notify the acquisition of the stocks of the new company B with the investment amount corresponding to the amount reduced by the spin-off and register the new company B as a foreign-invested company pursuant to Article 5(2)3 of the Foreign Investment Promotion Act.
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Where foreign-invested company B acquires another foreigninvested company C and foreign-invested company C ceases to exist
– The merged company C should file for cancellation of registration of a foreign-invested company (reason: merged by another company and extinguished).
– Foreign investor A of the merged company C should notify the acquisition of the stocks of the surviving corporation B depending on the merger ratio. (The original amount of foreign investment shall be succeeded.) (Article 5(2)3 of the Foreign Investment Promotion Act)
– The surviving corporation B should notify modifications to the registration of a foreign-invested company.
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Under Article 2(1)1 of the Foreign Investment Promotion Act, a foreigner is defined as an individual with foreign nationality, a foreign corporation established under applicable foreign laws or other international organizations for economic cooperation.
◎ If a paper company established in a tax haven is a corporation founded pursuant to applicable foreign laws, it is considered a foreigner under Article 2(1)1 of the Foreign Investment Promotion Act and subsequently not restricted from investing in Korea.
◎ However, an investment by a foreign corporation established by a Korean national or a Korean corporation is deemed a round-trip investment and is, therefore, excluded from the amount of foreign investment when incentives are granted pursuant to the Restriction of Special Taxation Act.
– Tax reductions and exemptions for foreign investment (Article121-2(11) of the Restriction of Special Taxation Act and Articles116-2(11) and 116-2(12) of the Enforcement Decree of the Act)
– Lending or selling State and public property to foreign-invested companies by a negotiated contract (Article 19(1) of the Enforcement Decree of the Foreign Investment Promotion Act)
– Reductions or exemptions for rental charges in foreign investment zones (subparagraph 6 of Article 1 of the Guidelines for Operation of Foreign Investment Zones)
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Yes, it can be regarded as foreign investment.
◎ When an existing foreign investor makes an additional investment of less than KRW 100 million, and less than 10 percent in the foreign-invested company, the additional investment is recognized as subsequent foreign investment by that foreign investor who already satisfies the requirements for foreign investment, and there is no need to check whether it meets the minimum requirements for initial investment.
◎ When a foreign investor fails to meet the requirements of foreign investment due to partial transfer of stocks or shares to a Korean national or foreigner, or capital reduction, this is also deemed foreign investment (Proviso of Article 2(2) of the Enforcement Decree of the Foreign Investment Promotion Act).
Example: If a foreign investor with a 10 percent stock ownership transfers 3 percent of his/her stocks to a Korean national, the remaining 7 percent is deemed foreign investment. If the 3 percent is transferred to a foreigner, both the remaining 7 percent and the 3 percent acquired by the foreigner are deemed foreign investments.
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When investment funds are remitted under the name of, or hand carried by an agent or a third party, the foreign investor should submit documents certifying that the funds were remitted or hand carried by an agent or a third party on behalf of him/her, including documents proving that the funds belong to the foreign investor (Article 17(1)1 of the Enforcement Rules of the Foreign Investment Promotion Act).
◎ When a foreign investor remits investment funds in person, he she can receive a certificate of the purchase (deposit) of foreign currency verifying the remitter. When the foreign investor hand carries the foreign currency funds through customs in person, he/she can receive a certificate of the purchase (deposit) of foreign currency after declaring the funds at the customs office and depositing the funds into a foreign currency account for non-residents at a domestic bank under the investor's name.
◎ When investment funds are remitted in the name of a third party or hand carried by a third party, whether the funds remitted or hand carried belong to the foreign investor or not cannot be confirmed. That the funds are the foreign investment funds reported on [Date/Month Year] by the foreign investor can be confirmed by the pertinent remittance statement (“sent on [Date/Month/Year] on behalf of [Name of the Foreign Investor]”), or by notarized documents certifying that the funds hand carried by a third party belong to the foreign investor him/herself.
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The Foreign Investment Promotion Act provides that a foreign investment made by a foreigner in the form of the acquisition of new or existing stocks, etc. of a Korean corporation or a company shall be notified prior to the investment. However, there is no specific regulation on the timing of introduction of funds used for the acquisition of the stocks.
◎ Therefore, in accordance with the Foreign Investment Promotion Act, if a foreigner opens a non-resident foreign currency account (external account) before or after notification of FDI and deposits funds in the account, or if he/she deposits funds in a special bank account (reserved for deposits for securities subscription), the funds can be recognized as investment funds.
◎ However, when the foreign currency funds deposited in a domestic bank account are converted into Korean won and used for other purposes or proceeds accrue as a result of such use (e.g., interest received from a bank deposit), it shall not be recognized as the amount of foreign investment. Therefore, the foreigner is advised to notify foreign investment as soon as possible and use the funds for foreign investment immediately.
