CHAPTER Ⅰ GENERAL PROVISIONS
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| Article 1 (Purpose) |
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[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 1-2 Deleted.<by Presidential Decree No. 23284, Nov. 4, 2011> |
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| Article 2 (Scope of Financial Institutions, etc.) |
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[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 3 (Composition of Public-Private Partnerships Deliberation Committee) |
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| (1) |
The ex officio members of the Public-Private Partnerships Deliberation Committee (hereinafter referred to as the "Deliberation Committee") under Article 6 (1) of the Act shall be the Vice Minister of Strategy and Finance nominated by the Minister of Strategy and Finance, the Vice Minister of Education, Science and Technology and the Vice Minister of National Defense nominated by the Minister of Education, Science and Technology, the Vice Minister of Culture, Sports and Tourism nominated by the Minister of Culture, Sports and Tourism, the Vice Minister for Food, Agriculture, Forestry and Fisheries nominated by the Minister for Food, Agriculture, Forestry and Fisheries, the Vice Minister of Knowledge Economy, the Vice Minister of Health and Welfare, the Vice Minister of Environment nominated by the Minister of Knowledge Economy, the Vice Minister of Land, Transport and Maritime Affairs nominated by the Minister of Land, Transport and Maritime Affairs. |
| (2) |
The term of office for commissioned members of the Deliberation Committee shall be two years, and the members may be reappointed one additional time. |
| (3) |
The Committee shall have a secretary who shall be nominated by the chairperson of the Deliberation Committee (hereinafter referred to as the "the deliberation chairperson") from among public officials of Grade Ⅲ in ranks under the control of the Ministry of Strategy and Finance or public officials in general government service of the Senior Civil Service. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 4 (Operation, etc. of Committee) |
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| (1) |
The deliberation chairperson shall represent the Deliberation Committee and exercise general control over affairs of the Deliberation Committee. |
| (2) |
When the chairperson is unable to perform his/her duty for an inevitable cause, a member of the Committee appointed in advance by the deliberation chairperson shall perform such duties on behalf of the deliberation chairperson. |
| (3) |
The deliberation chairperson shall convene and preside over the meetings of the Deliberation Committee. |
| (4) |
Meetings of the Committee shall convene with the attendance of a majority of all members, and decisions shall be made with the consent of a majority of the members present. In such cases, the meeting of the Deliberation Committee may be held by means of a remote video conference by which the members attend from different locations equipped with devices for sending and receiving video and audio signals in real time, and where there is insufficient time to convene the Deliberation Committee or otherwise it is deemed especially necessary by the deliberation chairperson, the meeting may be replaced with a written resolution. |
| (5) |
The Deliberation Committee may request the attendance of experts in relevant fields in order to hear their opinions, or the authorities and organizations concerned to submit necessary documents and present their opinions, if necessary for the work of the Deliberation Committee. |
| (6) |
Allowances and travelling expenses may be paid, within budgetary limits, to the commissioned members and experts who attend the meetings of the Deliberation Committee. |
| (7) |
Matters necessary for the management of the Committee, other than those provided for in this Decree, shall be determined by the deliberation chairperson through a resolution by the Deliberation Committee. |
| (8) |
Paragraphs (1) through (6) shall apply mutatis mutandis to the operation of the deliberation committee of each competent authority under Article 6 (4) of the Act. |
| (9) |
Matters necessary for the composition, operation, and procedures of the deliberation committee of each competent authority under Article 6 (4) of the Act other than those prescribed in paragraph (8) shall be determined and publicly announced by the competent authority: Provided, That if the competent authority is the head of a local government, such matters shall be determined by municipal ordinance of the relevant local government. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
CHAPTER Ⅱ INFRASTRUCTURE PROJECTS
SECTION 1 Basic Plan for Public-Private Partnerships in Infrastructure
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| Article 5 (Procedures for Formulation of Basic Plan for Pubic-Private Partnerships in Infrastructure) |
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| (1) |
A master plan for public-private partnerships in infrastructure (hereinafter referred to as "master plan for public-private partnerships in infrastructure") under Article 7 (1) of the Act shall be formulated by the Minister of Strategy and Finance through deliberation by the Deliberation Committee in consultation with the heads of related central administrative agencies. The same shall apply to the modification thereto (excluding the modification of insignificant matters determined by the Deliberation Committee). <Amended by Presidential Decree No. 16326, May 24, 1999; Presidential Decree No. 20720, Feb. 29, 2008; Presidential Decree No. 23284, Nov. 4, 2011> |
| (2) |
Deleted. <by Presidential Decree No. 18736, Mar. 8, 2005> |
| (3) |
The head of each related central administrative agency shall notify the Minister of Strategy and Finance of any matters which he/she intends to include in the master plan for public-private partnerships in infrastructure by October 31 of each year. <Amended by Presidential Decree No. 16326, May 24, 1999; Presidential Decree No. 20720, Feb. 29, 2008; Presidential Decree No. 23284, Nov. 4, 2011> |
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| Article 5-2 (Submission to National Assembly of Aggregate Ceiling, etc. of Build-Transfer-Lease Projects) |
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| (1) |
The Government shall submit to the National Assembly the aggregate ceiling, maximum amount by objective facilities, maximum amount of reserve funds for any unpredictable expenditure during the course of the promotion of the projects, and details of how the reserve funds for each objective facility have been used in the preceding year with regard to the build-transfer-lease projects pursuant to Article 7-2 of the Act through deliberation by the State Council and approval by the President. |
| (2) |
The Minister of Strategy and Finance may notify the head of each central administrative agency of any necessary matters including the guidelines for the commutation of the aggregate ceiling, etc. of build-transfer-lease projects pursuant to paragraph (1). |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 6 (Solicited Projects to be Deliberated by Deliberation Committee) |
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"Infrastructure projects of the specified scale as determined by Presidential Decree or larger" in Article 8-2 (2) of the Act means infrastructure projects which require a total project cost (referring to the total project cost calculated under Article 13 (2); hereinafter the same shall apply) of 200 billion won or over (100 billion won for projects conducted by the methods referred to in subparagraph 2 of Article 4 of the Act).
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 7 (Implementation Process for Projects Proposed by Private Sector) |
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| 1. |
Outcomes of the feasibility study of the proposed project; |
| 2. |
Details of the project proposal; |
| 3. |
Details of total project cost and finance procurement plan; |
| 4. |
Details regarding determination of free use period, and ownership and profit-making period (limited to revertible facilities); |
| 5. |
Facility management and operation plan; |
| 6. |
Income and expenditure plan including such items as the user fee, etc.; |
| 7. |
Details of and reasons for the implementation of supplementary projects, if any; |
| 8. |
Other matters which the proposer deems necessary for the implementation of the project concerned. |
| (2) |
The competent authority may, where the items to be entered in the project proposal submitted under Article 9 (2) are omitted or their details are obscure, request the proponent to supplement them within a specified period, and where it concludes that a case falls under any of the following subparagraphs, it may return the project proposal within 30 days from the date of receipt: |
| 1. |
When it concludes that it fails to conform with the Acts and subordinate statutes, and the policies of the competent authority; |
| 2. |
When it has been implementing basic design for the same details of the proposed project by appointing it as a potential public-private partnership project under Article 8-2 (1) of the Act or implementing it as a financial project. |
| (3) |
Where the competent authority deems that the project proposal submitted under paragraph (1) meets the formal requisites and conforms with Acts and subordinate statutes and the policies of the competent authority, it shall ask the Director of the Public and Private Infrastructure Investment Management Center (hereinafter referred to as "PIMAC") under Article 23 (1) of the Act to review the details of the project proposal before deciding upon whether the proposed project is to be implemented as a public-private partnership project. In such cases, the competent authority shall request the review of the details within 30 days from the date of the receipt of the project proposal, except in cases of requests for supplements under paragraph (2) or in other inevitable circumstances, and if it is impossible to request the review of the details within the said period, the competent authority shall notify the proponent of the reasons therefor and the scheduled date for requesting the review. |
| (4) |
The Director of the PIMAC may, where the related data required for the review on the details of a project proposal requested under paragraph (3) are incomplete, request the competent authority to supplement them within a specified period. |
| (5) |
With respect to the proposed project, among those requested for review under paragraph (3), the total project cost of which is 200 or more billion won, the Director of the PIMAC shall conduct the value for money test, such as the appropriateness of estimated demand volume, the analysis of costs and benefits compared with the implementation thereof as a financial project, etc. |
| (6) |
The Director of the PIMAC shall submit his/her opinion regarding the project proposal to the competent authority and the Minister of Strategy and Finance within 60 days after the receipt of the request for review of the proposal from the competent authority, except in cases of the value for money test under paragraph (5) or in other inevitable circumstances, and if it is deemed that the project is appropriate for being implemented as a public-private partnership project, he/she may present different opinions from those stated in the original project proposal about various conditions on the implementation of the project, such as appropriate project costs, user fees, profit rates, etc. |
| (7) |
The competent authority shall notify the proponent in writing within 60 days after the receipt of the opinion, etc. of the Director of the PIMAC of the details of the project proposal, such as whether the proposed project will be implemented as a public-private partnership project, taking into consideration the opinion of the Director of the PIMAC, except in special cases, and if the notification can not be made within the said period, it shall notify the proponent of the reasons therefor and the scheduled date of the notification. In such cases, if it intends to implement the proposed project falling under any subparagraph of Article 8 as the public-private partnership project, it shall first submit the matter for deliberation by the Deliberation Committee regarding the proposed details, etc. |
| (8) |
Where the competent authority publicly announces the outline of the proposal pursuant to Article 9 (3) of the Act, it shall publish it in the Official Gazette, three or more daily newspapers, and its own Internet homepage by specifying a period for proposal by a third party of not less than 30 days. In such cases, the competent authority may publicly announce such outline, including matters different from details of the relevant proposal about various conditions on the implementation of the project, such as appropriate project costs, user fees, profit rates, etc., and the initial proponent may submit a modified proposal within the time limit set in the public announcement. |
| (9) |
With regard to the review and evaluation by the competent authority under the former part of Article 9 (4) of the Act, the provisions of Article 13 shall apply mutatis mutandis. In such cases, "business plan" shall be construed as "project proposal". |
| (10) |
The competent authority shall, when it designates a potential concessionaire under the former part of Article 9 (4) of the Act, designate two or more potential concessionaires by setting priorities unless there exists any special ground to the contrary. |
| (11) |
The competent authority may grant preferential treatment to the initial proponent pursuant to the latter part of Article 9 (4) of the Act within the scope defined in any of the following subparagraphs: |
| 1. |
Where the initial proponent fails to submit the amended proposal: Ten percent of the total evaluation score; |
| 2. |
Where the competent authority publicly announces matters different from the details proposed by the initial proponent pursuant to the latter part of paragraph (8), and the initial proponent submits the amended proposal accordingly: Five percent of the total evaluation score. |
| (12) |
If no other proposal is made within the period specified in the public announcement under paragraph (8), the initial proponent shall be designated as the potential concessionaire. |
| (13) |
No competent authority shall, with respect to the project proposal submitted under Article 9 (2), disclose to the public the detailed matters of such proposal contrary to the proponent's wishes from the date of acceptance of relevant project proposal until before the public announcement of the details of such proposal under paragraph (8) is issued, and shall include in the details of public announcement, at the time of such announcement under paragraph (8), any matters which infringe on the proponent's interests, except for the matters necessary for a proposal by any third party. |
| (14) |
The competent authority shall partially subsidize the expenses incurred in the preparation of a project proposal to unsuccessful proponents under the conditions prescribed in the master plan for public-private partnerships in infrastructure. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
SECTION 2 Implementation of Infrastructure Projects
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| Article 8 (Scope of Basic Plan for Public-private Partnerships in Infrastructure Requiring Deliberation by Committee) |
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"Basic plan for facilities project which meet the requirements as prescribed by Presidential Decree" in the main sentence of Article 10 (2) of the Act means a master plan for public-private partnership facilities project (hereinafter referred to as "master plan for facilities project") which falls under any of the following subparagraphs:
| 1. |
Infrastructure projects, the total project cost of which exceeds 200 billion won; |
| 2. |
Projects, the competent authorities of which are two or more, or projects, the site of which is located over two or more Special Metropolitan Cities, Metropolitan Cities, or Dos: Provided, That the same shall not apply to projects which have two or more competent authorities and an agreement between the authorities has been reached with regard to jurisdiction over the project; |
| 3. |
Other projects for which the competent authority or the deliberation chairperson acknowledges that deliberation of the Deliberation Committee is necessary. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 9 (Insignificant Modification of Basic Plan for Facilities Project) |
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"Insignificant modifications determined by Presidential Decree" in the proviso to Article 10 (2) of the Act means any of the following subparagraphs:
| 1. |
Changes in the total project cost of the infrastructure project concerned within the scope of 30 percent of the total project cost; |
| 2. |
Other modifications deemed insignificant by the Deliberation Committee. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 10 (Public Announcement of Basic Plan for Facilities Project) |
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Where the competent authority formulates or modifies the master plan for facilities project, it shall announce the details in the Official Gazette and three or more daily newspapers under Article 10 (3) of the Act: Provided, That the same shall not apply where it is deemed that the modification thereto was made under Article 11 (3).
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 10-2 (Solicited Projects whose Basic Design Drawings, etc. should be Offered for Inspection) |
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"Solicited projects prescribed by Presidential Decree" in Article 10 (5) of the Act means other infrastructure projects than those in which the competent authority has the persons intending to perform such infrastructure projects or the persons designated as their concessionaires make the master design drawings to reduce the construction cost, to curtail the period of construction, or to introduce new technology or construction methods.
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 11 (Proposal for Modification of Basic Plan for Facilities Project by Private Sector) |
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| (1) |
Where a party in the private sector intends to propose a modification to master plan for facilities project under Article 12 of the Act, it shall include an explanation of, the grounds for, and expected effects of such modifications in the project proposal pursuant to Article 13 of the Act and submit it to the competent authority. |
| (2) |
The competent authority shall make a written notification to the proponent of the result of its review of the proposal for amendment under paragraph (1) within three months from the date of its receipt. In such cases, the proposal for amendment of the master plan for facilities project formulated and publicly announced through the deliberation by the Deliberation Committee shall be adopted through prior consultation with the Minister of Strategy and Finance. |
| (3) |
When the competent authority adopts a proposal for amendment pursuant to paragraph (2), the master plan for facilities project shall be deemed to have been amended according to the specifications of the adopted proposal for amendment. |
| (4) |
When the competent authority adopts the proposal for amendment under paragraph (2), the competent authority may give a maximum of five percent bonus points to the relevant proponent at the time of review and evaluation of the project proposal under Article 13 (2) of the Act. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 12 (Submission of Project Proposal) |
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Any party that intends to be designated as a concessionaire under Article 13 (1) of the Act shall submit a project proposal to the competent authority containing the following matters, along with the documents determined by the competent authority:
| 1. |
Contents of the project proposal (including the basic design); |
| 2. |
Details of the total project expenses and finance procurement plan; |
| 3. |
Details regarding determination of a free use period, and ownership and profit-making period (limited to revertible facilities); |
| 4. |
Facility management and operation plan; |
| 5. |
Income and expenditure plan including such items as the user fee; |
| 6. |
Details of and grounds for the implementation of supplementary projects, if any; |
| 7. |
Details of and reasons for the request for a government subsidy, if any; |
| 8. |
Details of and reasons for any amendments to the master plan for facilities project, if any; |
| 9. |
Other matters which the competent authority deems necessary. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 13 (Examination and Evaluation of Project Proposal) |
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| (1) |
When the competent authority examines and evaluates the project proposal submitted pursuant to Article 13 (2) of the Act, it shall make an accurate evaluation of the following matters: |
| 1. |
Appropriateness of the composition of the parties who implement the project, including the form of composition of the concessionaires and the relationship, between the project investor and the concessionaire; |
| 2. |
Feasibility of the project, including the total investment cost, the period, location, and content of construction; |
| 3. |
Practicality of the financing plan including equity and loan procurement capacity; |
| 4. |
Economic feasibility of the project, including the user fee, volume of use, free use period, ownership and profit-making period, discount rate, and scale of any supplementary project; |
| 5. |
Necessary land acquisition ability such as acquisition of necessary land and feasibility of the acquisition plan; |
| 6. |
Technological ability including satisfaction level of minimum technology requirements and whether high-end technology shall be applied; |
| 7. |
Facility management ability, including the reasonability of any repair and management plan; |
| 8. |
Contribution to social convenience such as the provision of convenience to the facility users, etc.; |
| 9. |
Other matters which the competent authority deems necessary. |
| (2) |
The competent authority may properly adjust items to be evaluated under each subparagraph of paragraph (1) according to the different characteristics of each project and evaluate the items with different importance. |
| (3) |
In evaluating the project proposal under paragraphs (1) and (2), the competent authority shall establish and operate a project-proposal evaluation team. In such cases, a person designated by the Director of the PIMAC may participate in such team. |
| (4) |
Unless any extraordinary ground exists otherwise, the competent authority shall designate two or more potential concessionaires according to the order of priority by the results of project proposal assessment. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 13-2 (Calculation of Total Project Expenses) |
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"The expense prescribed by Presidential Decree" in the former part of Article 13 (3) of the Act means expenses falling under any of the following subparagraphs:
| 5. |
Incidental cost: Various expenses related to the implementation of a project, including the costs of an analysis on the feasibility of the project, environmental impact assessment, and supervision; |
| 6. |
Operating and installation costs: Prices of equipment, installations, and tool and materials that are first provided in order to operate facilities; |
| 7. |
Various taxes and utility bills: Various taxes and utility bills, including acquisition tax and value-added tax, related to the implementation, completion, registration, and ownership transfer of construction work, and various burden costs levied by any other Act; |
| 8. |
Operational reserve funds: Required costs, including the start-up cost and/or the establishment cost of a public-private partnership corporation, in order to prepare for the operation of facilities. |
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 14 (Designation of Concessionaire Requiring Deliberation by Deliberation Committee) |
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"Designation of a concessionaire who meets the requirements determined by Presidential Decree" in the latter part of Article 13 (3) of the Act means any of the following subparagraphs:
| 1. |
Designation of a concessionaire of an infrastructure project, the total project costs of which exceed 200 billion won (100 billion won in cases of a project conducted in the methods referred to in subparagraph 2 of Article 4 of the Act); |
| 2. |
Designation of a concessionaire of a project, the deliberation by the Deliberation Committee of which is considered necessary by the competent authority or the deliberation chairperson. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 15 (Application Period for Approval of Detailed Implementation Plan) |
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"The period specified by Presidential Decree" in the main sentence of Article 13 (5) of the Act means a period of up to one year, unless otherwise specified by the competent authority.
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 16 (Approval of Detailed Implementation Plan) |
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| (1) |
The concessionaire of a project seeking to obtain approval of the detailed implementation plan of the project under the main sentence of Article 15 (1) of the Act shall submit to the competent authority an application for approval of the detailed implementation plan, which include the following details: |
| 1. |
Location and total area of the project site; |
| 2. |
Method of construction and technical details of the project; |
| 3. |
Implementation plan by work progress (in cases of construction conducted by section or stage, referring to the detailed implementation plan by stage); |
| 4. |
Plan for acquisition and use of land; |
| 5. |
The detailed implementation plan or the contents of a supplementary project, if any; |
| 6. |
Other matters which the competent authority deems necessary. |
| (2) |
In applying for approval of the detailed implementation plan pursuant to paragraph (1), the following documents and drawings shall be attached: |
| 2. |
A district map based on cadastral map; |
| 3. |
Plans and detailed design documents (in cases of construction conducted by section or stage, referring to the detailed design documents by stage); |
| 4. |
Construction specifications and documents providing for the grounds for construction costs and financing plan; |
| 5. |
Documents on the purchase of and compensation for land, buildings, or rights, etc. in the project site, and documents concerning the resettlement of residents; |
| 6. |
Plan for free use, etc. of public facilities and land, etc.; |
| 8. |
Documents containing the details of rights other than the location, lot number, classification, size, and ownership of buildings and land to be used or expropriated; |
| 10. |
Traffic impact assessment and measures for improvement thereof, and matters necessary for improvement thereof (limited to a project selected for traffic impact assessment and measures for improvement thereof under Article 13-2 (3) and attached Table 1 of the Enforcement Decree of the Urban Traffic Improvement Promotion Act); |
| 11. |
Plan for use of energy (limited to projects subject to consultation on the plan for use of energy under Article 20 and attached Table 1 of the Enforcement Decree of the Energy Use Rationalization Act); |
| 12. |
Other documents which the competent authority deems necessary. |
| (3) |
The competent authority shall notify the concessionaire in writing of its decision on whether to approve the detailed implementation plan for the project within three months from the date of receipt of the application for approval under paragraph (1), except in cases under special circumstances, and if the decision may not be made within the said period, it shall notify the concessionaire in writing of the reasons therefor and the scheduled date of the decision. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 17 (Insignificant Modification of Implementation Plan) |
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| (1) |
"Insignificant changes as determined by Presidential Decree" in the proviso to Article 15 (1) of the Act means any of the following subparagraphs: |
| 1. |
A modification of the project area within the scope of five percent (limited to cases where the total project cost is not affected by the change in the project area); |
| 2. |
A modification of the duration of the project within a period of up to one year (limited to cases where such duration does not exceed the construction period determined in the concession agreement (hereinafter referred to as the "concession agreement") under the former part of Article 13 (3) of the Act); |
| 3. |
A modification of the location of any insignificant facility or equipment (limited to cases where such modification will not affect the total project cost). |
| (2) |
In cases of modifications of any detailed implementation plan falling under any subparagraph of paragraph (1), the concessionaire shall promptly notify the competent authority in writing of the details of the modification. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 18 (Entrustment of Tasks, such as Land Purchase) |
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The concessionaire of a project, who seeks to entrust the task of land purchase, compensation for losses, resettlement of local residents, or other comparable matters to the competent authority or the head of the relevant local government according to Article 20 (3) of the Act, shall enter into an agreement with such authority or the head of the relevant local government specifying the contents, terms, and fees, etc. for the performance of such task.
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 18-2 (Use of Profit of Supplementary Project) |
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The competent authority shall spend the profit of a supplementary project under Article 21 (14) of the Act in reducing user fees such as passage fees, rental, etc. as determined by the Minister of Strategy and Finance and in reducing financial support, etc. under Article 37, taking into account of total project expenses, appropriate profit ratio, gratuitous use period, ownership, and profit-making period, etc. and specific details thereof shall be reflected in the concession agreement.
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 19 (Confirmation of Construction Completion) |
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The party seeking to obtain confirmation of construction completion of the project according to Article 22 (1) of the Act shall submit to the competent authority a report on construction completion required by the competent authority along with the documents stating matters falling under each of the following subparagraphs:
| 1. |
Construction completion report (including final plans and photographs); |
| 3. |
Plans of land and facilities before and after construction completion; |
| 4. |
Comparison charts of land and facilities before and after construction completion; |
| 5. |
Other documents stating such details as required for the confirmation of construction completion. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 20 (Role of PIMAC) |
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| (1) |
The PIMAC shall conduct the following tasks: <Amended by Presidential Decree No. 18736, Mar. 8, 2005> |
| 1. |
Support for works relating to the formulation of the master plan for public-private partnerships in infrastructure; |
| 2. |
Support for works relating to formulation of the master plan for facilities project; |
| 3. |
Support for works relating to the designation of the concessionaire, such as the review and evaluation of the project proposal, and conclusion of the concession agreement under Article 13 (2) and (3) of the Act; |
| 4. |
Review and evaluation of the project proposal by a party in the private sector under the provisions of Article 7 (2) through (7); |
| 5. |
Vicarious works of various applications for authorization, permission, etc. regarding public-private partnership projects; |
| 6. |
Support services for foreign private investors, such as investment consultation and other activities to induce foreign investment in public-private partnership projects; |
| 7. |
Review of potential public-private partnership projects and feasibility studies thereof; |
| 8. |
Development and operation of training programs relating to the implementation of public-private partnership projects; |
| 9. |
Improvement of public-private partnership systems and research in related fields; |
| 10. |
Support for works relating to finding potential public-private partnership projects; |
| 11. |
Other works related to the implementation of public-private partnership projects. |
| (2) |
The Director of the PIMAC may outsource services to an outside professional service agency when necessary to carry out the duties provided for in paragraph (1) 7. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
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| Article 21 (Organization, etc. of PIMAC) |
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| (1) |
The Director of the PIMAC shall be appointed by the President of the Korea Development Institute (hereinafter in this Article, referred to as the "President of the Korea Development Institute") under attached Table of the Act on the Establishment, Operation and Fostering of Government-Funded Research Institutes from among experts in a field related to public investment management. |
| (2) |
The Government may cover the costs necessary for the management of the PIMAC within budgetary limits. |
| (3) |
The Director of the PIMAC shall submit a report on the results of its operation to the Minister of Strategy and Finance each year. |
| (4) |
The President of the Korea Development Institute shall establish regulations in relation to the organization, the standards of business conduct, etc. of the PIMAC, other than those stipulated in this Decree, after prior consultations with the Minister of Strategy and Finance. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
SECTION 3 Management and Operation of Infrastructure
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| Article 21-2 (Preparation and Submission of Written Estimation of Government Disbursement for Build-Transfer-Lease Projects) |
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| (1) |
Pursuant to Article 24-2 (3) of the Act, the head of a central administrative agency shall prepare a written estimation of government disbursement for build-transfer-lease projects estimating the scale of the government disbursement (including analysis of causes of an increase and decrease in the scale of the government disbursement), by year and by facility, for not less than five fiscal years from the relevant fiscal year with respect to the national projects of the build-transfer-lease projects, the detailed implementation plan of which has been approved pursuant to Article 15 of the Act and local government projects subsidized by the National Treasury, and then submit the written estimation to the Minister of Strategy and Finance by June 30 each year. |
| (2) |
The Minister of Strategy and Finance may notify the head of each central administrative agency of the guidelines necessary for the preparation, etc. of a written estimation of government disbursement for build-transfer-lease projects under paragraph (1). |
[This Article Newly Inserted by Presidential Decree No. 22267, July. 9, 2010]
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| Article 22 (Gratuitous Use Period, etc.) |
|
| (1) |
The gratuitous use period, and ownership and profit-making periods under Article 25 (1) and (2) of the Act shall be determined within the range of the total project expenses, taking into consideration the benefits obtained during such period, the estimated net profit obtained from any supplementary project, and effects of financial support under Article 37. |
| (2) |
The total project costs in the concession agreement concluded under Article 25 (3) of the Act shall not be amended except for the following grounds: |
| 1. |
Adjustment of total project expenses as a result of changes in construction costs, etc. which markedly exceed or fall short of the rate of price fluctuations during the construction period; |
| 2. |
Adjustment of total project expenses resulting from inevitable causes determined by the concession agreement. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 23 (User Fee) |
|
| (1) |
The user fee under Article 25 (4) of the Act shall be determined in the concession agreement, taking into consideration the total project expenses, appropriate profit ratio, gratuitous use period, and ownership and profit-making periods of the infrastructure project. |
| (2) |
When the concessionaire intends to collect the user fee prescribed under paragraph (1) from the user of the facility concerned, he/she shall submit to the competent authority the following documents 60 days before the period of collection of user fees: Provided, That the same shall not apply where it is intended to collect rental fees from the State or a local government with respect to a facility which is concerned with the project implemented in a manner prescribed in subparagraph 2 of Article 4 of the Act: |
| 1. |
Method of use and the rate of user fees; |
| 2. |
Basic materials for the calculation of user fees; |
| 3. |
Method of collection of user fees; |
| 4. |
Reduction and exemption of user fees or extra charges and the parties to which they shall apply; |
| 5. |
Level of user fees for similar facilities; |
| 6. |
Other necessary matters with regard to user fees. |
| (3) |
The user fees determined under paragraph (1) may be adjusted by the methods and procedures outlined in the concession agreement for causes determined by the concession agreement, such as price fluctuations. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 24 (Registration of Infrastructure Management and Operation Rights) |
|
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 25 (Management and Maintenance of Facilities) |
|
| (1) |
The competent authority may establish and apply standards for the management and maintenance of the facility under subparagraphs 1 through 3 of Article 4 of the Act during the gratuitous use period, and ownership and profit-making periods. |
| (2) |
The concessionaire shall submit management and maintenance plans under paragraph (1) to the competent authority under the terms determined by the concession agreement. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 26 (Amendment to Details of Use of Facilities) |
|
| (1) |
"Where such use is prescribed by Presidential Decree" in the proviso to Article 29 (1) of the Act means cases where the competent authority acknowledges that common or public use of the facility concerned is noticeably necessary for the public interest, and the objectives of the project can not be achieved by any other means than an amendment to the details of use of the facilities: Provided, That any amendment to the details of use of facilities of a project falling under any subparagraph of Article 14 shall undergo deliberation by the Deliberation Committee. |
| (2) |
When the competent authority compensates a concessionaire for any loss incurred under Article 29 (2) of the Act, the following losses shall be compensated for through negotiation with the concessionaire: |
| 1. |
Loss from failure in recovering the total project expenses due to the amendment to the details of use of the facilities, measured as at the time of such change; |
| 2. |
Other losses incurred in relation to the amendment to the details of use of the facilities. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
SECTION 4 Infrastructure Credit Guarantee Fund
law view
| Article 27 (Operation Standard for Management Institution) |
|
The Credit Guarantee Fund under Article 30 (2) of the Act (hereinafter referred to as the "management institution") shall establish a standard for its operation to promote efficiency in the management of the Fund (hereinafter referred to as the "Fund"), and submit it to the Minister of Strategy and Finance.
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 28 (Management of Fund) |
|
"Other purposes as determined by Presidential Decree" in subparagraph 5 of Article 32 of the Act means any of the following purposes:
| 1. |
Deposit in financial institutions, etc.; |
| 3. |
Underwriting or purchase of stocks (including investment certificates), debentures, or other securities deemed necessary by the Minister of Strategy and Finance; |
| 4. |
Other purposes which the Minister of Strategy and Finance deems necessary for the execution of public-private partnership projects. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 28-2 (Object of Guarantee) |
|
"Persons who are determined by Presidential Decree" in Article 34 (1) 1 of the Act means foreign financial institutions that manage financial business in foreign countries established by foreign Acts and subordinate statues.
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 29 (Ceiling of Guarantee) |
|
| (2) |
The maximum amount of credit guarantee which the management institution may provide to the concessionaire who falls under the same corporation, from the Fund's account under Article 34 (4) of the Act shall be 300 billion won. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 30 (Guarantee Fees) |
|
| (1) |
The guarantee fees under Article 36 (1) of the Act shall be determined by the management institution within the scope of 15/1000 per annum on the guaranteed amount. |
| (2) |
If the concessionaire, etc. who has been granted credit guarantee under Article 34 (1) of the Act fails to perform his/her guarantee obligations within the time given, the management institution may collect guarantee fees from the relevant concessionaire, etc. within the scope of 20/1000 per annum on the portion of the amount unpaid, notwithstanding the provisions of paragraph (1). |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 31 (Claim for Performance of Guarantee Obligation) |
|
"If the cause prescribed by Presidential Decree, such as failure to perform obligations by the concessionaire, etc. who has been granted credit guarantee, takes place" in Article 38 (1) of the Act means any of the following:
| 1. |
If six months have passed since the concessionaire, etc., whose pecuniary obligation had been guaranteed under Article 34 (1) 1 or 3 of the Act, failed to perform his/her obligation within a given time limit (including where the benefit of time was lost); |
| 2. |
If the concessionaire etc. whose pecuniary obligation had been guaranteed under Article 34 (1) 2 of the Act, has failed to repay the principal or interest on the bond within a given time limit. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 32 (Scope of Subordinate Debt) |
|
"Subordinate debts determined by Presidential Decree" in Article 38 (2) of the Act means the total sum of the following amounts:
| 1. |
The amount of interest which is calculated by the interest rate applied during the period contracted for the principal obligation, until the management institution performs the guarantee obligation after the date for performance of principal obligation falls due; |
| 2. |
Costs determined by the management institution from among the expenses that the financial institution, etc. disbursed to recover bonds. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 33 (Amount of Losses) |
|
The amount of losses under Article 39 of the Act shall be calculated by multiplying the interest rate determined by the management institution, taking into consideration the loan rate by the amount performed by the management institution.
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
SECTION 5 Investment and Fiancing Collective Investment Scheme for Infrastructure Facilities
law view
| Article 34 (Capital, etc. of Company Specializing in Investment and Financing for Infrastructure Facilities) |
|
| (2) |
"Amount prescribed by Presidential Decree" in Article 41-2 (2) of the Act means the amount pursuant to the following classifications: |
| 1. |
Where six months have not passed since the registration of the relevant company specializing in investments and financing for infrastructure facilities (hereinafter referred to as a "investment and financing company") under Article 41 (1): One billion won; |
| 2. |
Where six months have passed since the registration of the relevant investment and financing company: Five billion won. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-2 (Explanatory Note for Investment and Stock Application Form) |
|
| (2) |
"Important details prescribed by Presidential Decree" in the latter part of Article 41-4 (2) of the Act shall exclude the following subparagraphs from the explanatory note for investments: |
| 1. |
matters altered pursuant to any amendment of Acts and subordinate statutes or to any order made by the Financial Services Commission; |
| 2. |
Other minor changes in the wording of the explanatory note for investments. |
| (3) |
The promoters of the investment and financing company under Article 41 (1) of the Act shall prepare a stock application form stating the following matters and provide it to a person who intends to apply to the acceptance of stocks: |
| 1. |
Objectives, trade name, and location of the investment and financing company; |
| 2. |
Class and number of stocks to be issued by the investment and financing company; |
| 3. |
Total number and issuing price of stocks to be issued at the time of establishing the investment and financing company; |
| 4. |
Amount of minimum net assets to be maintained by the investment and financing company; |
| 5. |
Methods of public notification by the investment and financing company; |
| 6. |
Duration of existence or reasons for dissolution, if included in the articles of incorporation; |
| 7. |
Provision that transfer of stocks shall be subject to the approval of the board of directors, if so determined; |
| 8. |
Name and address of a collective investment business entity; |
| 9. |
Methods of allocating the stocks to be issued and the date when the subscription price is to be paid; |
| 10. |
Financial institutions in charge of the subscription price paid and the place of payment; |
| 11. |
Names and addresses of prospective directors and auditor. |
| (4) |
"Ratio as prescribed by Presidential Decree" in Article 41-4 (4) of the Act shall be 10/100 of the equity capital to be fulfilled by an investment and financing company. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-3 (Borrowing of Funds and Issuance of Bonds) |
|
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-4 (Reporting on Assets of Investment and Financing Collective Investment Scheme) |
|
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-5 (Conditions on Issuing New Stocks or Additional Profit-making Securities) |
|
"Methods prescribed by Presidential Decree" in Article 41-7 of the Act means the methods of calculating the base price of collective investment securities under Article 238 (6) of the Financial Investment Services and Capital Markets Act: Provided, That the issuing price of new stocks or additional profit-making securities calculated by the said methods may be determined, taking into consideration the price at which the stocks or profit-making securities of the investment and financing collective investment concerned are traded on the securities market or KOSDAQ if they are listed on such market, and the fair value of such stocks of profit-making securities if not listed.
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-6 (Purchase Limit on Bonds or Corporate bills) |
|
"The limit prescribed by Presidential Decree" in Article 43 (3) 3 of the Act means the total sum of the deposit into financial institutions, etc. and the purchase price of national or public bonds by the investment and financing collective investment concerned.
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
SECTION 6 Public-private Partnership Project Dispute Mediation Committee
law view
| Article 34-7 (Composition of Public-private Partnership Project Dispute Mediation Committee) |
|
| (1) |
Members representing the Government under Article 44-3 (1) of the Act (hereinafter referred to as the "Government member") shall be appointed by the Minister of Strategy and Finance from among public officials who belong to the Senior Civil Service of the Ministry of Strategy and Finance or central administrative agencies in charge of infrastructure facilities projects. |
| (2) |
Members representing the concessionaire under Article 41-3 (1) of the Act (hereinafter referred to as the "concessionaire member") shall be commissioned by the Minister of Strategy and Finance from among the persons falling under any of the subparagraphs of Article 44-3 (2) of the Act, recommended by the concessionaires. |
| (3) |
Members representing the public interest under Article 44-3 (1) of the Act (hereinafter referred to as the "public interest members") shall be commissioned by the Ministry of Strategy and Finance from among the persons falling under any of subparagraph of Article 44-3 (2) of the Act. |
| (4) |
"The requirements prescribed by Presidential Decree" in Article 44-3 (2) 3 of the Act mean that public interest members shall satisfy all the following: |
| 1. |
For former public officials, three years have passed since the retirement; |
| 2. |
He/she shall not be executives or employees of the corporation involving design, construction, finance procurement or operation of the public-private partnerships in infrastructure. |
| (5) |
The term of office of the concessionaire member or the public interest member shall be two years. |
| (6) |
The term of office of supplementary members shall be the remaining period of the term of office of the predecessor. |
| (7) |
The Minister of Strategy and Finance may decommission the concessionaire or the public interest member where he/she falls under any of the following subparagrphs: |
| 1. |
When he/she becomes unable to perform his/her duties due to any mental or physical impairment; |
| 2. |
When he/she is deemed unfit to serve as a member on the grounds of neglect of duty, losses of dignity or such; |
| 3. |
When he/she is prosecuted in a criminal case relating to his/her duties; |
| 4. |
When he/she hampers fairness of the deliberation by failing to file a withdraw when he/she is found to fall under any of the subparagraphs of Article 34-11 (1). |
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-8 (Grounds for Disqualification) |
|
No person who falls under any of the following subparagraphs shall be a member of the dispute mediation committee for the public-private partnerships in infrastructure (hereinafter referred to as the "dispute mediation committee") under Article 44-2 (1) of the Act:
| 1. |
A person who has been declared bankrupt, but not yet reinstated; |
| 2. |
A person who has been adjudged incompetent or quasi-incompetent; |
| 3. |
A person who has been disqualified under the judgement of courts or acts; |
| 4. |
A person who has been sentenced to imprisonment without prison labor or heavier, and for whom three years have not passed from the date on which the execution of the relevant punishment was exempted (including the case where the execution of the relevant punishment was completed); |
| 5. |
A person who has been consigned to a suspended sentence of imprisonment without prison labor or heavier punishment, and is under a grace period. |
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-9 (Duties of Chairperson) |
|
| (1) |
The Chairperson of the dispute mediation committee (hereinafter referred to as the "Chairperson") shall exercise overall control over and represent the dispute mediation committee. |
| (2) |
If the Chairperson is not able to perform his/her duties due to any unavoidable grounds, a member previously designated by the Chairperson shall act on behalf of the Chairperson. |
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-10 (Meetings of Dispute Mediation Committee) |
|
| (1) |
The Chairperson convoke meetings of the dispute mediation committee. |
| (2) |
Meetings of the Committee shall be opened by the attendance of a majority of incumbent members, and the resolutions thereof shall be passed with the consent of a majority of the those present. |
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-11 (Exclusion, Challenge, or Avoidance of Members) |
|
| (1) |
Any member of the dispute mediation committee (hereinafter referred to as "member") who falls under any of the following subparagraphs shall be excluded from an examination and mediation of a pending case (hereinafter referred to as the "case"): |
| 1. |
If the member or his/her spouse or ex-spouse is a disputing party to the case or is in a relationship of a joint right-holder or obligor with the disputing party; |
| 2. |
If the member is or was a relative of a disputing party to the case; |
| 3. |
If the member has testified or given an expert opinion on the case; |
| 4. |
If the member has even been involved or is involved in the case as the agent or a party on the case; |
| 5. |
If the member has been involved in a disposition or omission that has given rise to the case. |
| (2) |
A dispute mediation committee shall, if there is a ground for excluding a member from office, make a decision on such exclusion at its discretion or at the request of a party. |
| (3) |
A party who has any grounds to believe that it is impracticable to expect that a member will perform fair examination and mediation may file a challenge against such member with the dispute mediation committee, and the dispute mediation committee shall, if it finds that the challenge is reasonable, make a decision to exclude the member from office. |
| (4) |
If a member falls under any of the cases under paragraph (1) or (3), he/she may voluntarily withdraw from examination and mediation on the case. |
| (5) |
Where there is a challenge under paragraph (3), the dispute mediation committee shall suspend the mediation process until the decision upon the challenge is made. |
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-12 (Prepayment and Accurate Account of Expenses) |
|
| (1) |
In cases where the dispute mediation committee intends to have the expenses required for appraisal, diagnosis, test, etc. for dispute mediation prepaid under Article 44-10 (2) of the Act, it shall notify it to the obligor for such payment in writing with the required expenses, particulars, and prepayment place and fixed period. |
| (2) |
In cases where the dispute mediation committee has notified the prepayment of expenses under paragraph (1), if the obligor fails to prepay the expenses within the fixed period, the dispute mediation committee may defer the mediation on the dispute concerned. |
| (3) |
If the dispute mediation committee received expenses in advance under Article 44-10 (2), it shall prepare a statement of accounts concerning the prepaid amount and expenses as referred to in paragraph (1) and notify it to the requesting person within five days after it prepared a proposal of mediation on the dispute and presents it to the party, or after it notifies a refusal or suspensions of mediation. |
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-13 (Request for Appraisal, etc.) |
|
| (1) |
If it is deemed necessary for examining the case for which a mediation of a dispute is requested, the chairperson may request any appraisal, diagnosis, test, etc. to the relevant specialized institution. |
| (2) |
Any institution which is requested to make an appraisal, diagnosis, test, etc. under paragraph (1), shall submit the result thereof within 20 days after receiving a request. In such cases, if there is any inevitable reason why it is impossible to submit such result within 20 days, it shall notify the dispute mediation committee of the reason and the period for submission thereof. |
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-14 (Secretary) |
|
The dispute mediation committee shall have one secretary, who shall be appointed by the Minister of Strategy and Finance from among public officials of the Ministry of Strategy and Finance.
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-15 (Allowance of Members) |
|
Allowances may be reimbursed within budgetary limits to members who appear at meetings of the dispute mediation committee: Provided, That no allowances shall be reimbursed to members who are public officials directly related to the affairs concerned.
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 34-16 (Detailed Rules for Operation) |
|
Necessary matters concerning operation and operational procedure, etc. of the dispute mediation committee, in addition to matters prescribed in Article 34-7 through 34-15 shall be determined by the Chairperson of the dispute mediation committee, subject to the resolution by the dispute mediation committee.
[This Article Newly Inserted by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 35 (Order for Supervision) |
|
| 1. |
Where the competent authority deems it necessary for the prevention of defective construction or for the normal operation of the facilities; |
| 2. |
Where it is judged that the concessionaire of a project under subparagraphs 1 through 3 of Article 4 of the Act was negligent in maintaining and managing the facilities to an extent which is substantially detrimental to the convenience and interest of the users. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 35-2 (Restriction on Eligibility of Unlawful Business Entities Participating in Public-Private Partnership Projects) |
|
| (1) |
The competent authority shall, under the former part of Article 46-2 of the Act, restrict the eligibility to participate in public-private partnership projects of participants in public-private partnership projects falling under any of the following subparagraphs [including concessionaires, investors of concessionaires (including would-be investors of concessionaires), persons participating in the relevant public-private partnership projects in terms of design, construction and operation, etc. and their representative (where there exist several representatives, referring to such representative in charge of the duties regarding the relevant public-private partnership project), agents, managers, and other employers; hereafter the same shall apply in this Article and Article 35-3)], immediately after the relevant event occurs: |
| 1. |
A person who has in advance agreed upon various conditions on the implementation of the project, including appropriate project costs, user fees, profit ratio, etc. or has colluded for the designation of a certain participant in the public-private partnership project as a potential concessionaire, with those who submitted a business plan (including a project proposal; hereafter the same shall apply in this Article) in the evaluation for designating potential concessionaires; |
| 2. |
A person who has inflicted considerable damage to the competent authority or ordering authority for a service contract by unfaithfully conducting feasibility research, such as forecasting demand etc., by intention or gross negligence in the service contract for feasibility research pursuant to Article 57 of the Enforcement Decree of the Construction Technology Management Act relating to the public-private partnership project; |
| 3. |
A person who has forged, altered or fraudulently used any document regarding the public-private partnership project, such as documents regarding the evaluation for designating potential concessionaires or negotiation for the designation of a concessionaire, or has submitted a false document; |
| 4. |
A person who has failed to comply with the negotiation for designating a concessionaire with sincerity without any justifiable reason after he/she was designated as a potential concessionaire, or has failed to submit documents mentioned in Article 12 without any justifiable ground; |
| 5. |
A person who has offered bribe, including money, valuables and entertainment, etc. to the relevant public officials or members of the Deliberation Committee with regard to the designation of a public-private partnership project, potential concessionaire, or concessionaire. |
| (2) |
Detailed criteria for the period for restriction on the eligibility for participation under paragraph (1) shall be listed in attached Table. |
| (3) |
Where a person whose eligibility for participating in a public-private partnership project has been restricted under paragraphs (1) and (2) happens to be a small and medium enterprises cooperative, the provisions of paragraphs (1) and (2) shall also apply to the member of the cooperative who directly caused such restriction. |
| (4) |
Where a person whose eligibility is restricted under the provisions of paragraphs (1) through (3) is adopted as a representative, and such representative is engaged in a public-private partnership project, paragraphs (1) and (2) shall also apply to the employer of such representative. |
| (5) |
In order to prevent a person whose eligibility is restricted pursuant to paragraphs (1) through (4) from participating in a public-private partnership project during the period for restriction by means of changing its trade name or representative, the competent authority shall identify the corporate registration number of a participant in a public-private partnership project, its licenses or registration numbers pursuant to the relevant Acts and subordinate statutes, the resident registration number of its representative, and so on. |
| (6) |
The competent authority shall not allow any participant in a public-private partnership project whose eligibility for participating in the project is restricted under the provisions of paragraphs (1) through (4) before the concession agreement is concluded. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 35-3 (Evaluation, etc. of Results of Promoting Public-Private Partnership Projects) |
|
| (2) |
The Minister of Strategy and Finance may, if necessary for conducting a comprehensive evaluation pursuant to Article 51-2 (3) of the Act, request the competent authority to submit the relevant data, organize and run a supporting organization for evaluating performances of the promotion of public-private partnership projects, or utilize institutions, etc. specializing in public-private partnership projects or performance evaluation. |
| (3) |
The Minister of Strategy and Finance may, within budgetary limits, pay costs and expenses or service fees incurred in organizing and running a supporting organization for evaluating performances of the promotion of public-private partnership projects or utilizing institutions, etc. specializing in public-private partnership projects or performance evaluation in accordance with paragraph (2). |
| (4) |
Matters necessary for the submission and disclosure of reports and the comprehensive evaluation, other than those referred to in paragraphs (1) through (3), shall be determined by the Minister of Strategy and Finance through deliberation by the Committee. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
CHAPTER Ⅳ SUPPLEMENTARY PROVISIONS
law view
| Article 36 (Investment by Public Sector) |
|
| (1) |
"Cases determined by Presidential Decree" in Article 52 (1) of the Act means cases where a project requires the investment of State and public property by the public sector for not less than 50 percent of its total investment cost or where the profitability is low that it is impracticable for the private sector alone to pursue the project. |
| (2) |
"Cases determined by Presidential Decree" in Article 52 (2) of the Act means cases falling under any of the following subparagraphs: |
| 1. |
Cases concerning the dissolution or liquidation of a corporation (referring to a corporation prescribed in subparagraph 7 of Article 2 of the Act; hereinafter the same shall apply); |
| 2. |
Cases concerning the transfer of the whole or an important part of the business; |
| 3. |
Where the purpose of business prescribed in the articles of association has changed. |
| 1. |
Harbor facility management right under the Harbor Act; |
| 3. |
Other management rights with regard to infrastructure under related Acts. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 37 (Financial Support) |
|
| (1) |
The State or a local government may grant any subsidy or long-term loan to the concessionaire during the construction or operation period of facility within budgetary limits after deliberation by the Deliberation Committee, in any case of the following subparagraphs under the provisions of Article 53 of the Act: Provided, That where such subsidy or long-term loan is granted from the budget of a local government, or the project concerned is conducted by one of a local government to which a subsidy of less than 30 billion won is provided by the State, deliberation by the Deliberation Committee shall not be required: |
| 1. |
Where it is inevitable to prevent dissolution of the corporation; |
| 2. |
Where it is inevitable to maintain the user fees at an appropriate level; |
| 3. |
Where inducement of private capital is difficult due to decrease in the profitability of the project as a result of a considerable expenditure disbursed as compensation for the use of land; |
| 4. |
Where the actual operational profit (referring to the amount obtained by multiplying the user fees by the demand for the facility concerned) falls considerably short of the estimated operational profit under the concession agreement, to such an extent that the operation of the facility is difficult; |
| 5. |
Where it is difficult to actively conduct the public-private partnership project without a long-term loan or subsidy prior to conducting projects, the profitability of which is low, but which can considerably reduce the construction period or the cost of construction of other projects when conducted together with other public-private partnership projects; |
| 6. |
Where the losses from exchange rate fluctuations occur, due to the excessive exchange rate fluctuation, in the borrowings in foreign currency for the construction funds which are raised by the concessionaire through outside capital. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 38 (Issuance of Infrastructure Bond) |
|
| (1) |
"Financial institution prescribed by Presidential Decree" in Article 58 (1) of the Act means an institution which falls under any of the following subparagraphs: |
| (3) |
A person who has issued an infrastructure bond under paragraph (2) shall, within two months after the completion of each business year, report to the Minister of Strategy and Finance matters concerning the issuance amount, terms, etc. of any infrastructure bonds issued during the previous year. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 39 (Grounds for Recognition of Buyout Right) |
|
The concessionaire of a revertible facility may request the State or local government to buyout the relevant facility (including supplementary facilities) under the provisions of Article 59 of the Act in the following cases:
| 1. |
Natural disasters, war, and other cases of force majeure by which construction is suspended for six months or longer or the total project cost increases by not less than 50 percent; |
| 2. |
Natural disasters, war, and other cases of force majeure by which the operation of the facility is suspended for six months or longer, or where the repair cost or reconstruction costs exceed 50 percent of the total project cost originally planned; |
| 3. |
Where the construction or operation of the facility has been suspended for six months or longer because the State or a local government has failed to perform its duty under the concession agreement for a year or longer after receiving the notification of the cause for the performance of its duties, or where the duties are simply not performed without any justifiable ground; |
| 4. |
Where a cause determined by the concession agreement occurs, as the competent authority deems it reasonable to recognize the buyout right of the concessionaire. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 40 (Procedures for Exercise of Buyout Right) |
|
| (1) |
When the concessionaire intends to exercise his/her rights to request purchase under the provisions of Article 39, he/she shall notify the competent authority of the grounds for such request within 30 days after the occurrence of such ground. In such cases, the concessionaire shall prove that the ground determined by Article 39 has occurred. |
| (2) |
The competent authority shall review the request for purchase by the concessionaire under paragraph (1) and notify the concessionaire of whether the request has been accepted within 60 days after receipt of the request through deliberation of the Committee unless there exist any special reasons otherwise. |
| (3) |
Where the buyout rights are exercised under paragraphs (1) and (2), matters regarding the standard and method of calculating of the amount payable to the concessionaire and other necessary matters may be determined in the concession agreement, taking into consideration the appropriate value of the infrastructure (including other related operation facilities), supplementary facilities, and the operation rights of the relevant project as of the time of request. |
[This Article Wholly Amended by Presidential Decree No. 23284, Nov. 4, 2011]
law view
| Article 41 Deleted.<by Presidential Decree No. 21434, Apr. 21, 2009> |
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ADDENDUM
This Decree shall enter into force on April 1, 1999.
ADDENDA<Presidential Decree No. 16326, May 24, 1999>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation.
Articles 2 through 4 Omitted.
ADDENDUM<Presidential Decree No. 17093, Dec. 30, 2000>
This Decree shall enter into force on the date of its promulgation.
ADDENDA<Presidential Decree No. 17854, Dec. 30, 2002>
Article 1 (Enforcement Date)
This Decree shall enter into force on January 1, 2003.
Articles 2 through 8 Omitted.
ADDENDUM<Presidential Decree No. 17928, Feb. 24, 2003>
This Decree shall enter into force on March 12, 2003.
ADDENDA<Presidential Decree No. 18736, Mar. 8, 2005>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation.
Article 2 (Applicability to Propriety Investigation, etc. of Projects Proposed by Private Sector)
The amended provisions of Article 7 (5) through (9) shall be applicable to projects which are proposed by private sector on or after the date this Decree enters into force.
Article 3 (Applicability to Period for Notification about whether to Approve Detailed Engineering and Design Plan for Implementation of Project)
The amended provisions of Article 16 (3) shall be applicable to public-private partnership projects, which applied for approval of the detailed engineering and design plan for implementation, on or after the date this Decree enters into force.
Article 4 Omitted.
Article 5 (Relations with other Acts and Subordinate Statutes)
Where other Acts and subordinate statutes cite the Enforcement Decree of the previous Act on Public-Private Partnerships in Infrastructure or its provisions as at the time this Decree enters into force and where this Decree includes the provisions corresponding thereto, this Decree or the corresponding provisions of this Decree shall be deemed to be cited in lieu of the previous provisions.
ADDENDA<Presidential Decree No. 18873, Jun. 23, 2005>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation.
Articles 2 through 5 Omitted.
ADDENDA<Presidential Decree No. 19513, Jun. 12, 2006>
Article 1 (Enforcement Date)
This Decree shall enter into force on July 1, 2006.
Articles 2 through 4 Omitted.
ADDENDA<Presidential Decree No. 20490, Dec. 28, 2007>
Article 1 (Enforcement Date)
This Decree shall enter into force on January 1, 2008.
Article 2 (Applicability to Solicited Public-Private Partnership Projects Requiring Deliberation by Committee)
The amended provisions of Article 6 shall apply, starting from the project which intends to conduct an infrastructure facilities project by the method of public-private partnerships in infrastructure after this Decree enters into force.
Article 3 (Applicability to Returning of Project Proposals Proposed by Private Sector, Investigations of Propriety, etc.)
The amended provisions of Article 7 (2), (3) (latter part) and (5) shall apply, starting from the project proposed by the private sector after this Decree enters into force.
Article 4 (Applicability to Designation of Concessionaire Requiring Deliberation by Committee)
The amended provisions of subparagraph 1 of Article 14 shall apply, starting from the first business plan submitted pursuant to Article 13 (1) of the Act after this Decree enters into force.
ADDENDUM<Presidential Decree No. 20506, Dec. 31, 2007>
This Decree shall enter into force on the date of its promulgation.
ADDENDA<Presidential Decree No. 20720, Feb. 29, 2008>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation. (Proviso Omitted.)
Articles 2 through 8 Omitted.
ADDENDA<Presidential Decree No. 20947, Jul. 29, 2008>
Article 1 (Enforcement Date)
This Decree shall enter into force on February 4, 2009. (Proviso Omitted.)
Articles 2 through 28 Omitted.
ADDENDA<Presidential Decree No. 20977, Aug. 26, 2008>
Article 1 (Enforcement Date)
This Decree shall enter into force on August 28, 2008.
Articles 2 through 5 Omitted.
ADDENDA<Presidential Decree No. 21185, Dec. 24, 2008>
Article 1 (Enforcement Date)
This Decree shall enter into force on January 1, 2009. (Proviso Omitted.)
Articles 2 through 5 Omitted.
ADDENDA<Presidential Decree No. 21231, Dec. 31, 2008>
Article 1 (Enforcement Date)
This Decree shall enter into force on January 1, 2009.
Articles 2 through 5 Omitted.
ADDENDA<Presidential Decree No. 21434, Apr. 21, 2009>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation: Provided, That the amended provisions of Article 7 shall enter into force on July 2, 2009.
Article 2 (Applicability to Public Notice of Details of Projects Proposed by Private Sector)
The amended provisions of Article 7 (8) shall apply, starting from the notice made after the amended provisions of Article 7 pursuant to the proviso to Article 1 of the Addenda enter into force.
Article 3 (Applicability to Restriction on Eligibility of Unlawful Business Entities Participating in Public-Private Partnership Projects)
The amended provisions of Article 35-2 shall also apply to participants in a public-private partnership project which is under progress as at the time this Decree enters into force, and for which project proposal has been submitted pursuant to Article 9 (2) of the Act before this Decree enters into force, or for which business plan has been established and announced pursuant to Article 10 of the Act.
ADDENDUM<Presidential Decree No. 21933, Dec. 31, 2009>
This Decree shall enter into force on the date of its promulgation.
ADDENDA<Presidential Decree No. 22075, Mar. 15, 2010>
Article 1 (Enforcement Date)
This Decree shall enter into force on March 19, 2010. (Proviso Omitted.)
Article 2 Omitted.
ADDENDA<Presidential Decree No. 22267, Jul. 9, 2010>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation: Provided, That the amended provisions of Article 38 (1) 1 shall enter into force on November 18, 2010.
Article 2 (Special Cases concerning Preparation and Submission of Written Estimation of Government Disbursement for Build-Transfer-Lease Projects)
The head of a central administrative agency shall, notwithstanding the amended provisions of Article 21-2 (1), submit to the Minister of Strategy and Finance a written estimation of government disbursement for build-transfer-lease projects prepared in the year 2010, by July 31, 2010.
ADDENDA<Presidential Decree No. 22395, Sep. 20, 2010>
Article 1 (Enforcement Date)
This Decree shall enter into force on January 1, 2011.
Articles 2 through 9 Omitted.
ADDENDA<Presidential Decree No. 22525, Dec. 13, 2010>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation. (Proviso Omitted.)
Articles 2 through 14 Omitted.
ADDENDA<Presidential Decree No. 22626, Jan. 17, 2011>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation.
Articles 2 through 6 Omitted.
ADDENDUM<Presidential Decree No. 23284, Nov. 4, 2011>
This Decree shall enter into force on November 5, 2011.
