法律简讯New Prosecutor General Reaffirms Commitment to Establish Fair Competition During Inaugural Speech During his inaugural speech on July 25, the new Prosecutor General Seok-youl Yoon stressed that "establishing fair competition" will be an enforcement priority of the Prosecutors' Office ("PO") and added that, to achieve this goal, the PO will be seeking higher penalties against criminal offenses that are harmful to fair competition in politics and economy, including "political or electoral interference by authorities, giving and receiving of illegal funds, unfair trade practices that disrupt markets, and abuse of superior bargaining position." His comments emphasize the rules of fair competition as a necessary condition for building a successful market economy. Prosecutor General Yoon's inaugural speech is seen to be a reaffirmation of the statements he made during his confirmation hearing before the National Assembly. Some of the upcoming changes in relation to Yoon's enforcement priorities are: For its first personnel moves in Yoon's term of office, the PO announced appointments of senior-level prosecutors with experience and expertise in investigating economic corporate crimes. In a follow-up personnel changes, on July 31, Chief Prosecutor Sang-yeop Koo, who has been the Director of the Seoul Central District PO’s Fair Trade Investigation Division, was appointed as the Senior Prosecutor of the District’s 1st Special Investigation Department. This appointment is notable in that an antitrust specialist will be serving in one of the most powerful positions at the PO. On the same day, it was also announced that Seung-mo Koo, the Director of the International Criminal Affairs Division at the Ministry of Justice, will be replacing Mr. Koo as the Director of the Fair Trade Investigation Division. This may signal that the PO is placing a high priority in international coordination in investigating criminal antitrust cases. In addition, the PO is planning to create a dedicated internal organization to handle all criminal antitrust cases. The organization will provide research and support for the investigation and prosecution of criminal antitrust cases, and when it is fully staffed, the organization is expected to serve as a control tower for other investigation divisions. If the PO's new internal organization continues the trend started by the Seoul Central District PO's Fair Trade Investigation Division, the PO will likely continue to seek higher penalties against individuals and companies for criminal antitrust offenders, regardless of whether they are located in Korea or overseas. In light of the above, all companies are advised to closely monitor additional developments at the PO and take internal measures to minimize the potential risk of any criminal antitrust liability.2019.08.01
法律简讯MOTIE Paves Way for RE100 in Korea On July 11, 2019, the Ministry of Trade, Industry and Energy (“MOTIE”) announced in a press release (the “MOTIE Press Release” – see the attached Annex for an unofficial English translation) that it will launch a green pricing pilot program (the “Pilot Program”) in October that will enable Korean companies to participate in the RE100 initiative for the first time. Until now, companies operating in Korea had no way to purchase energy generated solely from renewable sources since all generated capacity (conventional and renewable) is aggregated on the Korea Power Exchange (“KPX”) and then sold to electricity consumers through the Korea Electric Power Company (“KEPCO”) without any certificates of origin. The MOTIE Press Release is a public manifestation of ongoing behind-the-scenes governmental research and deliberation on how best to support the continued growth of new and renewable energy in Korea. It is also a reflection of the growing importance of the RE100 initiative globally and the pressure RE100 companies are putting on their Korean suppliers to source their electricity needs from renewables (and on the government to create a framework for them to do so). The MOTIE Press Release is a public manifestation of ongoing behind-the-scenes governmental research and deliberation on how best to support the continued growth of new and renewable energy in Korea. It is also a reflection of the growing importance of the RE100 initiative globally and the pressure RE100 companies are putting on their Korean suppliers to source their electricity needs from renewables (and on the government to create a framework for them to do so). RE100 Globally and in Korea The RE100 is a voluntary global initiative led by The Climate Group in partnership with CDP where influential global companies commit to rely 100% on electricity generated from renewable sources for their global operations.1 Already 185 of the world’s most influential companies across a spectrum of diverse industries have committed to the RE100 initiative. The MOTIE Press Release specifically mentions Google, Apple and BMW as representative examples of the importance of RE100 members in global commerce. When a company joins the RE100, it is required to set a target date (before 2050) for sourcing 100% of the electricity it uses in its global operations from renewable energy. RE100 companies have made significant progress on this ambitious target, as it is reported that a quarter of RE100 companies have achieved at least 95% renewables as of July 2019. In practice, RE100 companies seek to achieve their renewables targets through a variety of means, including: i. self-generation of electricity through renewable power production; ii. entering into PPAs directly with renewable power producers; iii. entering into indirect PPAs or “green tariffs” (PPAs with utility companies for the purchase of renewable energy that such utility companies source through corresponding PPAs with renewable power producers); iv. purchasing electricity through “green pricing” schemes, whereby “certificates of origin” (sometimes referred to as renewable energy guarantee of origin or “REGO” certificates) are issued for electricity derived solely from renewable sources and certified green energy can be purchased at a mark-up to electricity lacking REGO certification (such mark-up often referred to as a “green premium”); and v. pressuring their suppliers to provide evidence of having sourced their electricity needs through renewable energy via one of the above methods. The Green Path Forward The MOTIE Press Release does not provide any details on the scale of the Pilot Program, which companies will be eligible to participate or what the green premium will be for the purchase of electricity generated solely from renewable sources. But although the details of this Pilot Program (and future permanent RE100-enabling policies) are yet to be formally announced, it is clear that the government is committed to creating a path for local companies to participate in RE100 if they so choose. The MOTIE Press Release also mentions that the government will be encouraging equity investment in renewable power generation and self-generation of renewable energy. If the Pilot Program is successful, we would expect that a green pricing system (whereby certificates of origin are issued for renewable energy and certified green energy can be purchased at a premium) will be available for general consumption by early next year. We are also aware of an ongoing policy debate regarding whether green pricing alone is sufficient to meet Korea’s ultimate energy policy objectives. The government may consider allowing indirect PPAs or green tariffs, which would allow renewable power generators to enter into long term PPAs with KEPCO and for KEPCO to then enter into corresponding PPAs with electricity consumers wishing to indirectly purchase such renewable energy. A further step to catalyzing the growth of renewable energy in Korea would be for the amendment of the Electric Business Act to allow for renewable power generators to enter into direct PPAs with electricity consumers. Direct PPAs would generally be favored by renewable power generators and large-scale electric consumers (although KEPCO would likely oppose their introduction). Both indirect PPAs and direct PPAs would require significant change to the existing regulatory regime. But the government is carefully considering all available options and the next two years may see significant changes in Korea’s existing power regulations. 1 More information can be found at www.there100.org.2019.07.26
法律简讯Amendment to the Fair Hiring Procedure Act Effective as of July 17, 2019 An amendment to the Fair Hiring Procedure Act (“FHPA”) has become effective as of July 17, 2019. The amendment to the FHPA, also referred to as the “Blind Hiring Act,” provides fair employment opportunities to job applicants by establishing grounds to regulate the hiring irregularities of private corporations, and also provides for recruitment based on job skills rather than based on appearances or gender. Key components of the amendment to the FHPA include the following: 1. Prohibition of coercion regarding hiring and prohibition of providing and/or receiving money and other valuables Prohibition of improper requests, pressure and/or coercion with respect to hiring, and prohibition of providing and/or receiving money, goods, entertainment or proprietary benefits regarding hiring in violation of the law (Article 4-2). Violation of the foregoing may result in the imposition of an administrative fine not exceeding KRW 30 million against the individual. 2. Prohibition of requesting personal information unrelated to job performance Employers shall not request that an applicant list on basic application materials his/her personal information which is not related to job performance, including his/her height and weight, etc., hometown, or assets, or collect such information as evidentiary documents (Article 4-3). Violation of the foregoing may result in the imposition of an administrative fine not exceeding KRW 5 million against the company. On July 12, 2019, prior to the enforcement of the amendment to the FHPA, the Ministry of Employment and Labor prepared and distributed a “Legal Work Manual on the Fair Hiring Procedure Act.” The FHPA applies to the recruitment process of businesses or business places with 30 or more full-time employees (however, it does not apply to cases where the central or local governments hire public officials), and does not apply to businesses or business places with less than 30 full-time employees. It would be prudent for the applicable companies to comply with the above, review internal regulations which are relevant, and prepare training and guidelines for officers or employees who are involved in the recruitment process.2019.07.23
法律简讯New Korean Regulations on Confirming Legal Guardians’ Consent on Behalf of Minors On June 25, 2019, the amended Enforcement Decree of the Act on the Promotion of Information and Communication Network Utilization and Information Protection, Etc. (the “Network Act”) and the Enforcement Decree of the Location Information Protection Act (“LIPA”), both of which stipulate the detailed process through which a legal guardian’s consent to the collection, use, and provision of personal (and location) information of minors under 14 can be confirmed, became effective. These are follow-up measures to the amendments to the Network Act (promulgated December 24, 2018; effective June 25, 2019) and the LIPA (promulgated December 24, 2018; effective June 25, 2019). While the duty to confirm the consent of a legal guardian to the collection, use, and provision of personal and location information of minors under 14 had already existed, the amended Network Act and LIPA promulgated that the specific confirmation processes will be determined by the abovementioned enforcement decrees. Although the Korea Communications Commission had previously announced that it planned to instate a grace period until the end of 2019 in order to prevent any confusion due to the amendments, businesses should nonetheless be prudent in its compliance with these amendments because businesses may be subject to administrative fines if they were to collect personal and location information of users under 14 without their legal guardians’ consent in violation of the Network Act or the LIPA, as well as criminal penalties (i.e., imprisonment of up to 5 years or criminal fine up to KRW 50 million) in case of violation of the Network Act. Below are the specific confirmation processes set forth in the amendments: Main Points on the Process of Confirming Legal Guardians’ Consent 1. The legal guardian shall indicate his/her consent on the website where the details of what he/she is consenting to are published, and the telecommunications service provider (or the location information service provider) shall confirm such consent by sending a notice to the legal guardian’s mobile phone number. 2. The legal guardian shall indicate his/her consent on the website where the details ofwhat he/she is consenting to are published, and the legal guardian shall confirm such consent by providing his/her credit card or debit card information. 3. The legal guardian shall indicate his/her consent on the website where the details of what he/she is consenting to are published, and the legal guardian shall certify his/her identity by self-authentication process through his/her mobile phone 4. The business seeking consent shall deliver a document detailing what the legal guardian is consenting to, whether in person or via mail or fax, and then have the legal guardian submit the signed document to indicate his/her consent. 5. The business seeking consent shall send the legal guardian an email including the details of what he/she is consenting to, and then have the legal guardian indicate his/her consent via email. 6. Call the legal guardian to notify the details of what he/she is consenting to via phone and then have the legal guardian indicate his/her consent through the phone, or provide instructions on how the legal guardian may confirm such details on the internet website, followed by another call to obtain consent. 7. Any other method through which the legal guardian can be notified of the details of what he/she is consenting to and consent can be obtained and is substantially in accordance with those set forth in Clauses 1 through 6.2019.07.16
法律简讯Kim & Chang Legal Newsletter (2019 Issue 2) This issue includes: KFTC Announces Survey Results on Distributorship Transactions Update on the KFTC’s Investigation on Technology Misappropriation in the Electronics Industry Ministry of Environment Establishes a Digital Forensics Center Obligatory Corporate Governance Report Disclosure System – Enforcement and Outlook Consumers Now Legally Entitled to Request Banks to Reduce Interest Rates FSC Proposes Regulatory Reform of Financial Investment Business Activities For the First Time, City of Seoul Approves a Report for Establishing Insurance Agents’ Labor Union Supreme Court Adopts “Equal Pay for Equal Work” Based on the Principle of Equality in the Korean Constitution Supreme Court Recognizes Application of First-Sale Doctrine to Process Patents Amended Patent Act and Trade Secret Act to Provide Stronger Protection of Right Holders Korea’s Environment Ministry Establishes Special Investigation Team to Respond to Illegal Waste Treatment Activities Enforcement of the Amended Telecommunications Business Act Introduces Obligation to Notify Users of Service Suspension Korean Government Seeks to Improve CISO Designation System and Introduces Obligation to Purchase Privacy-Related Compensation Liability Insurance Kim & Chang Newsletter (2019 Issue 2)2019.08.06
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