G/SCM/N/1/KOR/4
Page 5
Organization
G/SCM/N/1/KOR/4
25 April 2001
(01-2063)
Committee on Subsidies
and Countervailing Measures / Original: English
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLE 32.6 OF THE AGREEMENT
KOREA
The following communication, dated 20 April 2001, has been received from the Permanent Mission of Korea.
______
Pursuant to Article 32.6 of the Agreement on Subsidies and Countervailing Measures, the Government of Korea hereby wishes to notify the revised Customs Act and its sub-regulations concerning countervailing measures, which entered into force on 1 January 2001. Please note that for the convenience of the readers, the Act has become to provide separate provisions for countervailing measures, no longer referring to those for anti-dumping measures.
THE CUSTOMS ACT
1. Section 2. Countervailing Duty
Article 57 (Subjects for Imposition of Countervailing Duty)
1. In cases where the request for imposition has been made by a person prescribed in the Presidential Decree and having interest in the domestic industry, or the Minister of relevant authorities, and where it is confirmed through an investigation that importation of a product granted with subsidies or bounties directly or indirectly, with regard to its manufacture, production, or export in a foreign country (hereinafter referred to as “subsidies, etc.”), results in any of the following Sub-paragraphs (hereinafter referred to as "material injury, etc." in this section), and it is deemed necessary to protect the domestic industry concerned, a duty in an amount not more than the amount of the subsidies, etc. (hereinafter referred to as “countervailing duty”) may be additionally imposed on such products, by designating the products and exporters or exporting country through the Ordinance of the Minister of Finance and Economy.
(1) material injury to a domestic industry is caused or threatened;
(2) material retardation of the establishment of a domestic industry is caused.
Article 58 (Investigation on Subsidies Granted, Material Injury, etc)
1. Investigation on the facts of granting subsidies, material injuries, etc. shall be conducted as prescribed by the Presidential Decree.
2. When the Minister of Finance and Economy imposes countervailing duty, if it is deemed necessary to consider enhancing competitiveness of related industries, price stabilization, cooperation in trade, and etc., those factors may be examined and reflected.
Article 59 (Provisional Measures prior to Imposing Countervailing Duty)
1. When an investigation is initiated to determine whether or not a countervailing duty is to be imposed and the import of a product for which subsidies, etc. have been granted has caused any cases referred to in the following Sub-paragraphs, the Minister of Finance and Economy may, even before the investigation is concluded, adopt a measure to order to impose a provisional countervailing duty or to provide a security, which is not greater than the amount equivalent to the subsidies presumed to have been granted, by designating the exporter or exporting country of the product and the period (hereinafter referred to as "provisional measures" in this section) as prescribed by the Presidential Decree in order to protect the domestic industry.
(1) in case where it is confirmed that there exist sufficient evidences to presume the fact of material injury, etc. to domestic industry
(2) in case where the undertakings as referred to in Article 60 were withdrawn or not complied with or where materials on the fulfilment of such undertakings were not presented, and where there exists the best information available
2. In cases where the investigation is terminated due to a withdrawal of request for the imposition of a countervailing duty on the products to which a provisional measure was taken, or where the determination on whether the countervailing duty is to be imposed is made, or the undertakings referred to in the provisions of Article 60 are accepted, the provisional countervailing duty paid shall be refunded or the security provided shall be released as prescribed by the Presidential Decree; provided that in cases of the following Sub-paragraphs, when the amount of countervailing duty exceeds that of provisional countervailing duty, the difference shall not be collected, and when the amount of countervailing duty is lower than that of provisional one, the difference shall be refunded.
(1) In cases where the undertakings under the provisions of article 60 is accepted after a fact of granting subsidies, etc. and material injury, etc. caused thereby is determined to exist after investigation thereon.
(2) In cases where a countervailing duty is imposed retroactively under the provisions of provisio of Article 61.
Article 60 (Offer of Undertakings related to Countervailing Duty)
1. In cases where a preliminary investigation to determine whether or not the countervailing duty, as referred to in Article 57, is to be imposed, determines affirmatively a fact of granting subsidies, etc. and material injury, etc. caused thereby, the government of the country exporting the products concerned or the Minister of Finance and Economy, as prescribed by the Presidential Decree, may offer undertakings to adopt any proper measure to abolish or curtail the subsidies, etc., for the products, or to eliminate the injurious effect of the subsidies, etc. on the domestic industry, and the exporter of the products concerned may, with the consent of the government of the exporting country, offer an undertaking to revise the price so that the injurious effect of the subsidies, etc., on the domestic industry could be eliminated.
2. If the undertakings, as referred to in Paragraph 1, are accepted, the Minister of Finance and Economy shall have the investigation suspended or terminated without taking any provisional measures or imposing the countervailing duty. However, if the Minister of Finance and Economy deems it necessary or the government of the exporting country requests to have the investigation on the injury continued, the investigation may be continued.
Article 61 (Period to Impose Countervailing Duties)
Imposition of countervailing duties and a provisional measure shall be applied to goods imported after the date on which the respective measure was taken; provided that in case of goods to which a provisional measure was applied, if an international agreement or the Presidential Decree prescribes otherwise, countervailing duties may be imposed on that goods.
Article 62 (Review on Countervailing Duties, etc.)
1. The Minister of Finance and Economy, if deemed necessary, shall review the imposition of countervailing duties and undertakings under the provisions of Article 60 in accordance with the Presidential Decree, and based on the result of the review, take necessary measures including imposition of countervailing duties, changes in contents of undertakings, refund, etc.
2. Imposition of countervailing duties and undertakings accepted under the provisions of Article60 shall lose their effect five years after the date of enforcement unless the Ordinance of the Minister of Finance and Economy prescribes otherwise with respect to the application period, and when their contents are changed according to the result of a review on subsidies, etc. granted and industrial injuries under the provisions of Paragraph 1, they shall lose effect 5 years after the date of enforcement of those changed contents unless the Ordinance of the Minister of Finance and Economy prescribes otherwise with respect to the application period .
3. Those matters necessary regarding imposition of a countervailing duty and its enforcement under the provisions in Paragraphs 1 and 2, and Articles 57 to 61 shall be prescribed by the Presidential Decree.
ENFORCEMENT DECREE OF THE CUSTOMS ACT
(Presidential Decree)
Article 72 (Subsidies, etc.)
1. The term "subsidies, etc." as prescribed in Article 57 of the Act(hereinafter referred to as “subsidies, etc.”) refers to benefits with specificity conferred by financial contributions, etc. from a government or a public institution, etc.; provided that subsidies or bounties prescribed in the Ordinance of the Minister of Finance and Economy are excluded.
2. The term "specificity" in Paragraph 1 refers to the case where subsidies are granted to a certain enterprise or industry, or a certain group of enterprises or industries, and its detailed criteria shall be prescribed by the Ordinance of the Minister of Finance and Economy.
3. The amount of subsidies, etc. shall be calculated as prescribed in the Ordinance of the Minister of Finance and Economy on the basis of actual benefits of the recipient.
Article 73 (Request for Imposition of Countervailing Duty)
1. Any interested party to the domestic industry suffering material injury, etc. as prescribed in Article 57 of the Act, or the Minister of the competent Ministry in charge of such an industry, may request to the Minister of Finance and Economy to impose a countervailing duty, as prescribed by the Ordinance of the Minister of Finance and Economy and such a request is substituted by the request for an investigation to the Trade Commission required for imposing such an countervailing duty.
2. In applying the provisions of Article 57 of the Act, a domestic industry means the domestic production business producing all or considerable portion of total production of the like product of the product for which subsidies, etc. have been granted (a production business managed by a producer who has such special relationship with the government of exporting countries, exporters or importers of the product as prescribed in Article 23, Paragraph 1 of the Act and a production business managed by such a producer who is an importer of the imported product as prescribed by the Ordinance of the Minister of Finance and Economy may be excluded; hereinafter the same shall be applied in this Paragraph).
3. For the purpose of Paragraph 1, the term "an interested party to the domestic industry" means a domestic producer belonging to the domestic industry that is affected by material injury, etc., and an association, an organisation or an individual of which the domestic producers are members or which represents the interest of such a domestic producer and who is the person prescribed by the Ordinance of the Minister of Finance and Economy.
4. When a person who has interests in the domestic industry that was affected by material injury, etc. because of import of subsidized products, desires to request an investigation under the provisions of Paragraph 1, he/she shall submit an application containing each of following elements to the Trade Commission with related documents attached.
(1) names of items, dimensions, characteristics, uses, names of producers, and production quantity of the product concerned;
(2) exporting countries and exporters, export record, possibility of exportation, and importers, import record, possibility of importation of the product concerned;
(3) the ex-factory price and the market price of the product concerned in the exporting country, and the export price to Korea and third countries;
(4) names of items, dimensions, characteristics, uses, names of producers, production quantity, factory and market prices, and the cost calculation for the like product in kind or quality or similar product in Korea;
(5) matters pertaining to the material injury, etc., of the domestic industry concerned caused by the importation of the subsidized product;
(6) contents of subsidies, etc. granted on manufacture, production, and export of the product concerned in the exporting country and the price decreasing effect of the product caused thereby;
(7) degree of support by domestic producers of like product in kind or quality or similar product for the investigation request;
(8) If confidential treatment of the attached documents is necessary, the reason thereof; and
(9) other matters as deemed necessary by the Minister of Finance and Economy.
Article 74 (Initiation of the Investigation on Import of Subsidized Products and Material Injury, etc.)
1. The Trade Commission shall, upon receiving the request for an investigation as prescribed in the latter part of Article 73, Paragraph 1, determine whether or not it will initiate an investigation on import of subsidized products and material injury, etc., and shall notify the Minister of Finance and Economy within 2 months of receiving such a request of the result of the determination thereof and the following matters:
(1) products subject to an investigation (in case where many products are subject to an investigation, products selected according to the Ordinance of the Minister of Finance and Economy);
(2) period subject to the investigation; and
(3) governments of exporting countries or exporters subject to the investigation (in case where there are many governments or exporters that are subject to investigation, those selected according to the Ordinance of the Minister of Finance and Economy)
2. In determining whether or not to initiate an investigation in accordance with Paragraph1, the Trade Commission may reject such a request if the request for an investigation falls under any of the following sub-paragraphs:
(1) In case a person who has filed the written request is ineligible to request imposition under Article 73, Paragraph 1;
(2) In case sufficient documentary evidences on import of subsidized products and material injury, etc., are not submitted;
(3) In case the amount of subsidy or import quantity of the subsidized products is below the criteria set by the Ordinance of the Minister of Finance and Economy, or in case the material injury etc., is deemed to be insignificant;
(4) In case the total production by domestic producers that expressed consent to the application for an investigation does not satisfy the criteria set by the Ordinance of the Minister of Finance and Economy; and
(5) In case it becomes unnecessary to initiate an investigation, e.g., a measure has been taken prior to the initiation of an investigation to eliminate any adverse effect on the domestic industry.
3. When the Trade Commission has determined the initiation of an investigation as referred to in Paragraph 1, it shall notify the person requesting the investigation, the government of the exporting country and the exporters of such a product and other interested parties of the matters concerning the determination on the initiation of the investigation and shall publish them in the official gazette, within ten days after the determination.
Article 75 (Investigation on Import of Subsidized Products and Material Injury, etc.)
1. The Trade Commission takes charge of the investigation on the import of subsidized products and material injury, etc., referred to in Article 57 of the Act. In this case, the Trade Commission may, if it is deemed necessary, have public officials of related administrative agencies or concerned experts participate in the investigation.