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"If company A merged with company B and company A became the surviving entity, company A can succeed company B’s status as a repatriating enterprise eligible for assistance and receive assistances prescribed by Articles 11-14 of the Act such as tax reduction and exemption.
In a business combination, two or more companies merge to form one new company under a contract (i.e., consolidation), or one company takes over another company and becomes the surviving entity (i.e., merger). As a result of the combination, the companies other than the newly established company or surviving company cease to exist, and the extinguished companies’ assets as well as its employees or shareholders are transferred to or taken over by the newly established or surviving company. Where businesses are merged or consolidated, all of the rights and responsibilities of the merged or consolidated companies under both public law and private law are succeeded by the newly established or surviving company, with the exception of the rights and responsibilities that are not permitted to be transferred due to their nature.
According to the Act, a company that intends to be selected as a repatriating enterprise eligible for assistance should prepare a repatriation plan in regard to the liquidation, downsizing of the overseas place of business and the establishment or expansion of the domestic place of business, etc. and file an application for selection with the Minister of Trade, Industry & Energy (refer to Article 7 (2) of the Act). Upon receipt of an application, the minister can determine if the company is qualified by taking into consideration whether the company downsized its overseas place of business in accordance with the criteria prescribed by Ordinance of the Ministry of Trade, Industry & Energy, etc. and verifying if the company received assistance in accordance with other laws, and decide whether to select the company as a repatriating enterprise eligible for assistance (refer to Article 7 (1) of the Act and Article 6 of the Enforcement Decree of the Act). If a company falls under certain cases such as failing to submit the repatriation plan, the Minister of Trade, Industry & Energy may revoke the company’s eligibility for assistance (refer to Article 8 of the Act).
If so, it can be said that the matters regarding the selection of a repatriating enterprise eligible for assistance are transferable as they are determined based on objective facts such as whether assistance is provided by other laws and an overseas place of business’s repatriation to Korea. Therefore, company B (the extinguished entity)’s status as a repatriating company eligible for assistance is succeeded by company A (the surviving entity).
Also, as recognizing the succession of the status as a repatriating enterprise eligible for assistance encourages A’s succession of B’s plan for repatriating the overseas place of business after the merger, such interpretation shall be in line with the purpose of legislation of the Act, which is the facilitation of repatriation of Korean offshore enterprises. "
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"Yes, the foreigner can become the representative of his/her building in the relevant multi-family housing complex under Article 50 (3) of the Enforcement Decree of the Housing Act.
Article 6 (2) of the Constitution of the Republic of Korea states that “The status of aliens shall be guaranteed as prescribed by international laws and treaties.”, and many laws treat foreigners as equal to Korean nationals based on the tenet of the Constitution. In this regard, it can be interpreted that basic rights recognized only for Korean nationals such as voting rights or political rights including the right to hold public office are not recognized for foreigners even if there are no written regulations stating as such. However, in the case of laws concerning other rights, it shall be interpreted that there are no restrictions on foreigners if there are no written regulations explicitly restricting the rights of foreigners.
According to Article 50 (3) of the Enforcement Decree of the Housing Act which prescribes the qualifications of a representative of each building in a multi-family housing complex, a tenant who resided in a building for six months or longer after filing resident registration can be a representative of the building. The reason for this is to appoint a person who lived in a multi-family housing complex long enough to understand the conditions of the complex as the representative of a building because a residents’ representative council mediates the frequent conflicts of interest related to the management of a multi-family housing complex. Therefore, in respect to ‘resident’, there is no reason to discriminate foreigners from Korean nationals, and furthermore, the definition of tenant under Article 2 Subparagraph 12 of the Housing Act does not treat foreigners and Korean nationals differently or explicitly exclude foreigners. In this sense, it cannot be regarded that Article 50 (3) of the Enforcement Decree of the Housing Act prevents foreigners from becoming a representative of a building.
Also, the reason why qualification as a representative of a building is restricted to persons who filed resident registration at the relevant multi-family housing complex is because a resident registration can be an objective means to prove that a person has resided at a place for six months or longer. But because Article 88-2 (2) of the Immigration Control Act states that any alien registration and report on change of place of stay shall substitute for any resident registration and moving-in report, respectively, if a foreigner who basically cannot file resident registration filed alien registration and report on change of place of stay pursuant to Article 6 of the Resident Registration Act, it shall be considered that there is objective proof of residence, just like when resident registration was filed. "
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"Yes, a local government can provide cash grants for foreign direct investment based on Article 14-2 (1) of FIPA.
Article 14-2 (1) of FIPA regulates that cash grants can be provided to foreign direct investment by central and local governments in certain cases. More specifically, the Article states that when foreign direct investment is made to newly install or expand factory facilities, etc. to operate a business prescribed by Article 121-2 (1) 1 of the Restriction of Special Taxation Act, central and local governments can provide the funds needed for the purpose prescribed by Presidential Decree such as establishment of a factory facility to the relevant foreigner. As such, it is made clear that a local government is eligible to provide cash grants for foreign investment.
In addition, Article 14-2 (4) of FIPA states that a local government may prescribe matters concerning the determination on the provision of cash grants, the method for calculating limits on cash grants, procedures for negotiating the investment support with foreigners and other necessary matters by ordinance, except otherwise expressly prescribed in Paragraph (3) of the same Article. In this regard, the matters to be prescribed by local government ordinances are not whether cash grant will be provided or not, but the method and procedure for provision of cash grant as prescribed by Article 14-2 (3), the method and procedure required for payment of cash grant, etc. depending on regional circumstances, etc. Also, because Article 14-2 (1) states a legal ground for providing cash grants for foreign investment, it cannot be said that cash grants can be provided only when it is stipulated again by ordinances."
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"In this case, the alien can create, manage and operate a private qualification.
The Constitution of the Republic of Korea states that “the status of aliens shall be guaranteed as prescribed by international laws and treaties” (Article 6 (2)), and in accordance with this principle, many laws treat aliens as equally as Korean nationals. As a rule, in laws other than those related to basic rights recognized only to Korean nationals such as voting rights and political rights including the right to hold public office, it is interpreted that there are no restrictions on aliens unless there are explicit regulations imposing restrictions on them. Also, Article 17 (1) of the Framework Act on Qualifications states that “any” corporation, organization or individual other than the State may create, manage and operate a private qualification in a sector other than those prescribed by its subparagraphs, and Article 23 (4) of the Enforcement Decree of the same Act stipulates that the minister of the competent ministry shall issue a registration certificate if the requested private qualification does not fall under the banned categories. In addition, Article 18 of the Act does not include aliens in persons disqualified as a private qualification manager, which means that aliens are not disqualified to become private qualification managers who can create, manage and operate private qualifications. Moreover, by allowing everyone to create, manage and operate private qualifications and receive government accreditation on the qualifications, the purpose of the Framework Act on Qualifications is to ensure that private qualifications are invigorated and their credibility are enhanced, thereby improving the socio-economic status of people through promoting lifelong vocational competency (Article 1). In addition, the legislative objective of the Act is opening the qualification system to individuals so that persons with skills and talent in a particular field can be given an opportunity to succeed by practicing expertise in the field and ultimately contribute to the diversification of society and creation of an open system. Considering this, there is no reason to restrict an alien from creating a private qualification in accordance with the Framework Act on Qualifications. Furthermore, the fact that the competent minister may manage and supervise the management and operation of private qualifications by private qualification managers regardless of whether they are domestic persons or aliens should be taken into account as well. For example, where a person who registers, manages and operates private qualifications in accordance with the Framework Act on Qualifications violates the Act, the competent minister may issue an order requiring the relevant private qualification manager to correct the relevant offense (Article 18-2), and may suspend the relevant qualification if the manager fails to comply with the corrective order (Article 18-3 (1) 3). And if necessary, the competent minister may provide instructions necessary for the guidance and supervision of registered qualification-related affairs under his/her jurisdiction, by requiring the registered qualification managers to report on their business or submit data, etc. (Article 18-5). "
