WORLD TRADE G/SG/N/1/KOR/1 April 1995 ORGANIZATION (95-0831) Original: English Committee on Safeguards NOTIFICATIONS OF LAWS, REGULATIONS AND ADMINISTRATIVE PROCEDURES RELATING TO SAFEGUARD MEASURES KOREA The following communication, dated 15 March 1995, has been received from the Permanent Mission of Korea _ With reference to Article 12.6 of the Agreement on Safeguards and in response to the invitation contained in document G/SG/N/1/Suppl.1, I have the honour to notify the Committee on Safeguards of the relevant provisions of Korea's Foreign Trade Act, Customs Act, and the Enforcement Decree of the latter act The most important two remedial measures, the restriction of imports and the adjustment of customs, are based on the above two acts The Republic of Korea has revised the above mentioned Foreign Trade Act which is the basic law governing safeguards in Korea, bringing it into conformity with the WTO Agreement This revised act, attached to this letter, will go into force on July 1995 However, some relevant sub-rules and regulations to the act concerning enforcement of safeguard measures are under revision at this time Therefore, it is not possible for the Government of the Republic of Korea to notify these sub-rules and regulations by 15 March 1995 As the procedures for revision will be completed by July 1995, the Government of the Republic of Korea will make a formal notification by August 1995 Foreign Trade Act CHAPTER IV INVESTIGATION OF INDUSTRIAL DAMAGES OF IMPORT ON INDUSTRY SECTION Request and Investigation Article 32 (Request for Investigation of Domestic Industrial Damages caused by Increased Imports of Specified Goods) (1) If the domestic industry is deemed to fall under any of the following subparagraphs, the person who has interests in such domestic industry and the head of the administrative agency concerned who takes charge of the industry (hereinafter referred to as "interested persons") may request the Trade Commission as prescribed in Article 37 (hereinafter referred to as "Trade Commission") to investigate damages caused by the import or trade of specified goods and supply of distribution services (hereinafter referred to as "import, etc of specified goods") to the relevant domestic industry: Where an increase in import quantity of specified goods causes or threatens to cause serious damage to a domestic industry producing the like or directly competitive ones; Where an increase of trade and supply of distribution services by a foreigner causes or threatens to cause serious damage to a domestic industry which supplies the like or directly competitive trade and distribution services; or Where an act importing goods infringing on rights of the patent, utility model, design, and trademark, copyright, neighbouring copyright, and programme copyright and layoutdesign of semi-conductor integrated circuit which are protected in Korea, causes or threatens to cause any damage to a domestic industry which produces directly competitive goods (2) Necessary matters, such as the scope of interested persons as referred to in paragraph (1), procedure of application, etc shall be determined by the Presidential Decree [This Article Wholly Amended by Law No 4145, 21 December 1989] Article 33 (Investigation of Domestic Industrial Damages caused by Increasing Imports, etc of Specified Goods) (1) The Trade Commission shall, upon receiving a request under Article 32, decide whether to commence the investigation or not within thirty days from the date of request after consulting with the head of the administrative agency concerned (2) The Trade Commission shall conduct an investigation as provided by the Presidential Decree, in the following cases: Where it has decided to commence the investigation under paragraph (1); or 2.Where it considers due to the result of the investigation conducted under subparagraph of Article 40, that it is necessary to investigate damages to the domestic industry of the import, etc., of specified goods (3) When the Trade Commission commences the investigation as referred to in paragraph (2), within one hundred and twenty days from the commencement of the investigation it shall determine whether or not the domestic industry is damaged Provided that, if the contents of investigation are complex, or the interested persons request a postponement of the period with justifiable reasons presented, the period of investigation may be extended up to another one hundred and twenty days (4) When the Trade Commission makes a determination that no damage to the domestic industry is discovered after an investigation under paragraph (2), it shall notify the interested persons [This Article Wholly Amended by Law No 4145, 21 December 1989] SECTION Recommendation and Taking of Remedial Measures Article 34 (Recommendation, etc., of Temporary Restriction on Imports) (1) When the Trade Commission has determined that there exists any damage to the domestic industry as a result of the investigation under Article 33(2), it may recommend to the head of the administrative agency concerned to take any of the following measures (hereinafter referred to as "remedial measures") in a specified period, within forty-five days from the date of determination: Restriction on the quantity, quality, etc of such imported goods; Adjustment of customs tariff; 3.Various assistance as prescribed in the laws and regulations related to industrial assistance for the purpose of improving technology and productivity; 4.Designation of the industry which is subject to the investigation as a industry to be rationalized under the Industry Development Act; Suspension or prohibition of imports against specified goods or traders; and 6.Other measures as determined by the Presidential Decree for the purpose of providing a remedy to the domestic industry (2) Deleted (3) The head of the administrative agency concerned shall, upon receiving a proposal on a remedial measure from the Trade Commission under paragraph (1), decide whether to take the remedial measure or not, within forty-five days from the date of receiving such recommendation In this case, if it is necessary to consult with major interested countries for the implementation of such a remedial measure, or it is especially necessary for the implementation of such a remedial measure, the period needed for it shall not be included therein (4) When the head of the administrative agency concerned takes any remedial measures, he shall take into consideration any effect on international trade relations and the national economy (5) When the head of the administrative agency concerned has taken any remedial measure under paragraph (3), if it is deemed that there exist causes to undo such a remedial measure, such as the extinction of the fact on which the measure is based, and the like, they shall be undone In this case, they may hear the opinion of the Trade Commission [This Article Wholly Amended by Law No 4145, 21 December 1989] Article 35 (Provisional Measure) (1) When the Trade Commission considers that if it does not take an urgent measure even during the investigation under Article 33 (2), the industry which is subject to the investigation would or might suffer irrecoverable damage, it may recommend to the head of the administrative agency concerned to take a provisional remedial measure provided for subparagraph of Article 34 (1) (hereinafter referred to as "provisional measure") (2) The provisions of Article 34 (3) and (4) shall be applied mutatis mutandis to the case as referred to in paragraph (1) [This Article Wholly Amended by Law No 4145, 21 December 1989] Article 36 (Review, etc.) (1) The Trade Commission may review the impacts, effects, etc of any remedial measure taken by the head of the administrative agency concerned under Article 34 (3) on the domestic measure (hereinafter referred to as "review"), and recommend to the head of the administrative agency concerned modification, release, etc of such a measure if it considers it necessary to modify the content of the measure applied mutatis mutandis or unnecessary to maintain it (2) The provisions of Article 34 (3) and (4) shall be applied mutatis mutandis to the case as referred to in paragraph (1) [This Article Wholly Amended by Law No 4145, 21 December 1989] SECTION 2-2 Measure Restricting Import of Textiles and Clothing Article 36-2 (Measure Restricting Import of Textiles and Clothing) (1) if an increase in the import of textiles and clothing causes or threatens to cause serious damage to the domestic industry which produces the like or directly competitive goods, the Ministry of Trade, Industry, and Energy may take import restriction measures (2) In case the import restriction measures provided for in paragraph (1) above are taken, the goods and countries which are subject to the measures, level of restriction and procedures of investigation, etc., shall be determined by the Presidential Decree SECTION Trade Commission Article 37 (Establishment of Trade Commission) (1) In order to carry out investigations and decisions on damages to domestic industry caused by import increase, etc of specified goods, a recommendation of remedial measures therefore, and investigation and determination on damages to domestic industry caused by import of dumped or subsidized goods, studies and research on international trade systems, etc the Trade Commission shall be established in the Ministry of Trade, Industry and Energy (2) In order to handle affairs of the Trade Commission, such as the investigation of damages to the domestic industry, studies and research on international trade systems, etc under paragraph (1), the Trade Research Bureau shall be established in the Trade Commission [This Article Wholly Amended by Law No 4145, 21 December 1989] Article 38 (Composition etc of Trade Commission) (1) The Trade Commission shall be composed of a chairman and eight or fewer members, some of which are to be permanent posts, but the exact number shall be determined by the Presidential Decree (2) The chairman and members shall be appointed by the President with the proposal of the Minister of Trade, Industry and Energy from among persons of extensive learning and experience in the area of the industry and trade, international trade, law, and accounting (3) The term of the chairman and members shall be three years, but renewable (4) If the chairman is unable to perform his duty due to an accident, the permanent member shall act for him Article 39 (Guarantee of Status of Chairman and Members) The chairman and members shall not be removed from office against their own will, except in a case falling under any of the following subparagraphs: Where they are sentenced to a penalty more sever than imprisonment; 2.Where they are unable to perform their duties due to mental or physical disability for an extended period of time Article 40 (Function of Trade Commission) The function of the Trade Commission shall be as followings: 1.Determination on whether or not it shall begin an investigation and whether or not there exists any industrial damage, under Article 33 (1) and (3); 2.Recommendation of any remedial measure under Article 34 (1); 3.Recommendation of any provisional measure under Article 35 (1); 4.Review as referred to in Article 36 (1) and recommendation of the modification, or release, etc of the remedial measure; 5.Recommendation of investigation and sanction under Article 44 (2) and (3); 6.Reception of application for investigation on industrial damages for imposing antidumping duty and countervailing duty as prescribed in Articles 10 and 13 of the Customs Act; decision on whether or not the investigation is to be made, investigation and decision on industrial damages; 7.Investigation on any effect of imports, etc of specified goods on the competitiveness of the industry; 8.Research and study on statutes, institutions and dispute cases pertaining to international trade; and 9.Other investigations and recommendation of matters, such as encouragement of fair trade, etc., which the Trade Commission deems necessary [This Article Wholly Amended by Law No 4145, 21 December 1989] Article 40-2 (Exclusion of Chairman and Members) The chairman and members may not participate in deliberation or decision on the following matters: Matters in which he or she has any interests; 2.Matters related to his or her spouse, or a relative who has eighth degree of blood relation or fourth degree of relation in law or closer with him or her; or Matters for which he or she is a witness, appraiser or agent Article 41 (Quorum for decision) The decision of the Trade Commission shall be made by a major vote of members present Article 42 (Legal Fiction as Public Official for Application of Penal Provisions) Even in a case where the chairman and members are not public officials, they shall be considered as public officials in application of penal provisions under the Penal Code and other laws and regulations Article 43 (Organization and Operational Rules) Except as provided for in this Act, matters necessary for organization, operation, etc of the Trade Commission shall be determined by the Presidential Decree Notification of Laws and Regulations under Article 12.6 of the Agreement The Customs Act Article 12 (Emergency Duty) (1) If the increase in the import of particular products causes or threatens to cause a serious injury to domestic producers of like products or the products with a direct competitive relation, and it is thereby deemed necessary to prevent or redress such an injury, the customs duties may be imposed within the limit of the rates equivalent to the difference between the domestic and foreign prices (2) The emergency duty rates, as referred to in paragraph (1), may be applied only to those imported in excess of the specified quantity of products, as prescribed in paragraph (1), if it is necessary (3) Matters concerning the items of products, duty rates, expiry date and quantity, etc to which the provisions of paragraphs (1) and (2) are applicable, shall be provided for by the Ordinance of the Prime Minister Article 43-9 (Withdrawal and Modification of Concessions) (1) if, as a result of a decline in price of a product in a foreign country, or other unforeseen developments, or the performance of the obligations under any treaty, any product is being imported in such increased quantities and under such conditions that it causes or threatens to cause a serious injury to domestic producers of like products or the products with a direct competitive relation, the Government may take any of the following measures: 1.In cases where a tariff concession has been granted on the said products by a treaty: to withdraw or modify the concession so that there may be levied upon such imported products customs duty chargeable at an applicable rate in this Act or at a modified rate; and 2.In cases where measures prescribed in subparagraph are to be, or have been taken with respect to particular products: to modify tariff concessions on the previously tariffconceded products other than the said products or to grant new tariff concessions on those products on which any tariff concession has not been granted, through a consultation pursuant to the pertinent treaty, so that the modified or newly granted tariff concessions may be applied (2) Measures referred to in subparagraph of paragraph (1) shall be taken to the extent necessary as compensation for measures referred to in subparagraph of the said paragraph (3) The time, contents and other necessary particulars of the measures referred to in paragraph (1) shall be provided for by Presidential Decree Article 43-10 (Countervailing Measures) (1) In cases where a foreign country intends to take, or has taken measures to withdraw, modify or otherwise make tariff concessions on particular products, when deemed legitimate to take countervailing measures pursuant to the pertinent treaty, the Government may take the following measures: 1.To levy a customs duty upon such particular products within the limit of amount equivalent to the dutiable value of the said products in addition to customs duty chargeable at an applicable rate in this Act; and 2.In cases where a tariff concession has been granted on particular products: to suspend the application of the said concession and levy a customs duty within the limit of the rates prescribed by this Act (2) Measures referred to in paragraph (1) shall be taken to the extent necessary as a countervailing measure against that of the foreign country (3) The object country, time, contents and other necessary particulars concerning the measures in paragraph (1) shall be provided for by Presidential Decree Article 43-11 (Validity of Concession and Withdrawal) (1) With respect to products on which Korea has granted a customs concession under a treaty, if the said concession is withdrawn, the customs rate prescribed in this Act shall be applied from the date on which the withdrawal enters into force pursuant to the said treaty (2) With respect to products on which Korea has newly granted a tariff concession in compensation for the withdrawal referred to in paragraph (1), the customs rate prescribed in this Act shall be applied from the date on which the said concession enters into force The Enforcement Decree of the Customs Act Article 43-17 (Emergency Duty) (1) If the head of the ministry or agency concerned or an interested person wishes to request measures prescribed in Article 12 of the Act, he shall present the following materials related to the products to the Minister of Finance and Economy: 1.Tariff number, denomination, dimension, use and substitute of the products; 2.Raw materials used for manufacturing the products, a description of the process and use of related products for which the products are used as raw materials; 3.Tariff rate to be raised, reasons for raising the tariff, and the application period thereof; 4.Performance and plan of the supply and demand for the current year and for the year before and after the current year; 5.Import price and performance of the importation by months and by major importing countries for a recent year; 6.Factory price and performance of the delivery by months and by major domestic manufacturing enterprises for a recent year; 7.(Deleted) 8.(Deleted) 9.If it is necessary to determine a specified quantity under Article 12 (2) of the Act, such a quantity and the basis of calculation 10 (Deleted) (2) (Deleted) (3) When the Minister of Finance and Economy deems it necessary for the investigation of matters necessary for the application of an emergency duty, he may ask the organization concerned, exporter, importer or other interested person to present the related data or other necessary cooperation ?? G/SG/N/1/KOR/1 Page G/SG/N/1/KOR/1 Page ... (1) , the Trade Research Bureau shall be established in the Trade Commission [This Article Wholly Amended by Law No 414 5, 21 December 19 89] Article 38 (Composition etc of Trade Commission) (1) ... Wholly Amended by Law No 414 5, 21 December 19 89] SECTION Recommendation and Taking of Remedial Measures Article 34 (Recommendation, etc., of Temporary Restriction on Imports) (1) When the Trade Commission... opinion of the Trade Commission [This Article Wholly Amended by Law No 414 5, 21 December 19 89] Article 35 (Provisional Measure) (1) When the Trade Commission considers that if it does not take an