Regulation On Foreign Investment And Technology Introduction


Published: 2013-05-30

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CHAPTER I GENERAL PROVISIONS
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 Article 1 (Purpose)   print
The purpose of this Regulation is to provide for matters delegated by the Foreign Investment Promotion Act, the Enforcement Decree of the same Act, and the Enforcement Rule of the same Act and matters necessary for the enforcement thereof.
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 Article 2 (Definitions)   print
(1) The term "foreign investment" in this Regulation means a foreign investment defined in Article 2 (1) 4 of the Foreign Investment Promotion Act (hereinafter referred to as the "Act").
(2) The term "head of an entrusted agency" in this Regulation means the head of the Korea Trade-Investment Promotion Agency or the head of a foreign exchange bank who is entrusted with the authority of the Minister of Ministry of Trade, Industry and Energy under Article 40 (2) of the Enforcement Decree of the Foreign Investment Promotion Act (hereinafter referred to as the "Enforcement Decree").
(3) The term "foreign investment ratio" in this Regulation means the foreign investment ratio under Article 5 (1) of the Act.
(4) The term "a person who has acquired a residency permit which can be substituted for permanent residency" in Article 3 of the Regulation means any of the following persons confirmed as residing for emigration purpose in countries which have no permanent residency system:
1. A person who has acquired a long residency permit for at least four years;
2. A person who has been residing for at least four years in a country where a residency permit is granted only for less than four years and has acquired a residency permit for at least one year in a country where he/she resides.
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 Article 3 (Standards for Classification of Business)   print
The classification of business used in this Regulation shall be subject to sub-sub classification provided for in the Korean Standard Industrial Classification (the Statistics Korea Notification No. 2007-53).
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 Article 4 (Categories of Business Excluded from Foreign Investment)   print
Categories of business not permitted for foreign investment shall be as prescribed in attached Table 1 among all categories of business under Article 3.
CHAPTER II RESTRICTIONS ON FOREIGN INVESTMENT
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 Article 5 (Categories of Business regarding which Foreign Investment Restricted)   print
(1) Categories of business regarding which foreign investment restricted that shall be publicly notified by the Minister of Trade, Industry and Energy after consulting with the competent Minister under Article 5 (1) 1 of the Enforcement Decree are as shown in attached Table 2.
(2) Where a foreign investor intends to invest in a business subject to the criteria for permission among the categories of business listed in attached Table 2, he/she may do so within the scope of the criteria for permission.
(3) A category of business, the time for opening is indicated among those listed in attached Table 2 shall be deemed deleted on the date such time arrives: Provided, That the same shall not apply to cases where the time for opening is indicated just for partial opening or increased opening and the details thereof are not specified.
(4) The Minister of Trade, Industry and Energy shall prepare and publicly notify the criteria for permission for the categories of business falling under the proviso to paragraph 3 before the time for opening arrives, after consulting with the competent Minister.
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 Article 6 (Definition of "Where a Foreigner Intends to Acquire De Facto Control over the Management of an Existing Domestic Company")   print
"Where a foreigner intends to acquire de facto control over the management of an existing domestic company" in Article 5 (1) 2 (a) of the Enforcement Decree means any of the following cases:
1. Where a foreigner intends to acquire a company (including cases where he/she intends to establish a new corporation by separating a specific part of business of a company; hereafter the same shall apply in this Article) through a trade of stocks, etc. of a company, exchange or merger between companies, exercise of security rights, receipt of payment in kind, or by any other method and he/she intends to own solely or jointly with any of the following persons at least 50/100 of the stocks, etc. of the company (including cases where a foreigner who becomes the largest holder of stocks, etc. holding less than 50/100 thereof and is able to exercise dominance over appointment of directors or management of the company whether directly or through a related party):
(a) The spouse and lineal ascendants and descendants (including lineal ascendants and descendants of the spouse) of the relevant foreigner;
(b) A foreign corporation, at least 50/100 of the total number of issued stocks or the total amount invested of which is owned by the relevant foreigner jointly with the persons in relationship prescribed in item (a) or (c) or under their de facto dominance;
(c) The relevant foreigner and an employee of a person prescribed in item (b) or (d) (referring to an executive in cases of a corporation, and a commercial employee, an employee under an employment contract, and a person who make a living with the money or property of an individual in cases of an individual);
(d) A foreign corporation which owns at least 50/100 of the total number of issued stocks or the total invested amount jointly with the corporation prescribed in item (b), the relevant foreigner and persons prescribed in items (a) and (c);
(e) A foreigner who has agreed, by means of an agreement, contract, etc., to acquire or dispose of stocks, etc. or exercise voting rights (including the authority to direct the exercise of the voting rights) jointly with the relevant foreigner;
2. Where a foreigner intends to take over or lease all or a major part of the business of a company or run de facto the relevant company by being entrusted with the management of the company, solely or jointly with a related party.
CHAPTER III PROCEDURES, ETC. FOR REPORTING ON AND PERMISSION FOR FOREIGN INVESTMENT
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 Article 7 (Computation of Periods of Long-Term Loans)   print
The loan period publicly notified by the Minister of Trade, Industry and Energy as referred to Article 5 (1) of the Enforcement Rule of the Foreign Investment Promotion Act (hereinafter referred to as the "Rule") shall be computed by aggregating the numbers obtained by multiplying the loan period of the amount of redemption paid in installments or paid intermediately in each period by the ratio of such amount of redemption to the total amount of loans.
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 Article 8 (Documents, etc. for Report or Application for Permission)   print
(1) In filing a report or an application under Articles 2 through 5, 17, 17-2, and 20 of the Rule, a foreign investor may choose to file it either in Korean or English.
(2) Documents related to the reporting on or application for permission for a foreign investment shall be prepared in Korean except in English referred to in paragraph (1): Provided, That a document prepared in English and difficult to be prepared in Korean shall be accompanied by a Korean translation.
(3) In filing a report or an application for conferment of the right of representation, an agent of a foreign investor shall append a letter of delegation.
(4) A document verifying the nationality of a foreigner shall be any of the following documents:
1. Where a foreigner is a corporation or organization: A certified transcript of registry issued by the government or any other authorized agency of the relevant state;
2. Where a foreigner is an individual: A document verifying the nationality, such as a certificate of citizenship or passport issued by the government or any other authorized agency of the relevant state.
(5) Notwithstanding paragraph (4), if a reporter or applicant holds the nationality of the Republic of Korea, the abovementioned document may be substituted by a certificate of permanent residency issued by the government or any other authorized agency of the state where he/she resides, a certificate of registry of a Korean national residing abroad issued by the head of a diplomatic establishment abroad, etc.
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 Article 9 (Documents, etc. Required at Time of Requesting Preliminary Verification before Filing Report on Investment)   print
(1) Matters to be publicly announced by the Minister of Trade, Industry and Energy under Article 5 (6) of the Enforcement Decree shall refer to the copies of the documents verifying the following matters: Provided, That Article 8 (4) and (5) shall apply mutatis mutandis to the part concerning nationality in subparagraph 1:
1. Trade name or name and nationality of an investor (including a related party under subparagraph 1 of Article 6; hereinafter the same shall apply);
2. Trade name or name and address of a target domestic company (hereinafter referred to as "target company");
3. Trade name or name, address, and size of assets (only applicable to cases where it is intended to incorporate a new corporation by separating a specific part of the business of a company under subparagraph 1 of Article 6 or take over such part) of a corporation to be newly incorporated;
4. Total amount of investment, investment ratio (referring to the ratio of stocks, etc. an investor of the stocks, etc. of the target company intends to acquire the method of investment (referring to the type of an object of investment under Article 2 (1) 8 of the Act and the amount of investment by type) and details of source of procurement of investment funds;
5. Transferor of stocks, etc.;
6. Investor's business plan (including details of business, details of participation in management, products, details and level of technology, production process, front back industry, and detailed business relation, etc. with the parent company and overseas subsidiary companies) and financial statements (including those for the recent year and two preceding years);
7. Whether the target company has supplied or provided any individual goods or service to the Ministry of Defense (including the Defense Acquisition Program Administration, units, agency and government-funded agencies subject to the management and supervision by the Ministry of Defense or the Defense Acquisition Program Administration) or to any defense contractor defined in subparagraph 9 of Article 3 of the Defense Acquisition Program Act during the past three years;
8. Whether the target company has produced any goods or technical data under the public notification on exportation and importation of strategic items (the Ministry of Trade, Industry and Energy Public Notification No. 2013-2);
9. Whether the target company has entered into any individual contract treated as a state secret under Article 13 (4) of the National Intelligence Service Act for the past three years.
(2) Where any change is made in the details referred to in subparagraphs of paragraph (1), the relevant foreigner or the target company shall inform the competent Minister or the Minister of Trade, Industry and Energy thereof without delay.
(3) Where the competent Minister or the Minister of Trade, Industry and Energy determines that it is necessary to conduct additional confirmation on the details of the copy of the documents submitted under paragraph (1) or where no confirmation of the target company is made in connection with the matters prescribed in paragraph (1) 7 through 9, the competent Minister or the Minister of Trade, Industry and Energy may request necessary data from the relevant foreigner or the target company within a fixed period of at least seven days.
(4) In cases falling under paragraphs (2) and (3), the date on which a foreigner has requested verification under Article 5 (6) of the Enforcement Decree shall be the date on which a notification on change was made or the correction of data has been completed by the relevant foreigner or the target company, upon the request of the competent Minister or the Minister of Trade, Industry and Energy.
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 Article 10 (Report or Notification, etc. of Details of Permission)   print
(1) Where the Minister of Trade, Industry and Energy or the head of an entrusted agency issues a certificate of completion of report on foreign investment or grant permission under Article 5, 6 or 8-2 of the Act, he/she shall send a copy of the certificate of completion of report or the permit to the competent Minister: Provided, That the same shall not apply to any case of the increase in investment which does not fall under items of Article 5 (1) 2 of the Enforcement Decree, without adding the category of business intended to be run.
(2) When Minister of Trade, Industry and Energy grants permission to a foreigner who has filed an application for permission for foreign investment by means of acquisition of existing stocks, etc. under Article 6 (3) of the Act for the purpose of acquiring the existing stocks, etc. of a foreign-capital invested company from any citizen or corporation of the Republic of Korea, he/she shall notify the head of the relevant entrusted agency thereof without delay.
(3) When the Minister of Trade, Industry and Energy grants, or declines to grant, permission for foreign investment under Article 5 (7) of the Enforcement Decree, he/she shall notify the head of the relevant entrusted agency thereof without delay.
(4) Where a foreigner has submitted to the competent Minister or the Minister of Trade, Industry and Energy a request for prior verification under Article 5 (6) of the Enforcement Decree and the Minister or the Minister of Trade, Industry and Energy verifies the requested matter is not eligible for review under any item of Article 5 (1) 2 of the Enforcement Decree, the relevant Minister shall notify the relevant foreigner and the head of the relevant entrusted agency thereof without delay.
(5) When the Minister of Trade, Industry and Energy revokes permission for a foreign investment or when the Minister of Trade, Industry and Energy or the head of an entrusted agency cancels registration of a foreign-capital invested company, he/she shall notify the head of the relevant local government, competent Minister and the Commissioner of the National Tax Service thereof.
CHAPTER IV LICENSING AGREEMENT
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 Article 11 (Prompt Processing of Report, etc.)   print
Matters related to a licensing agreement shall be processed promptly and the processing thereof shall not be delayed due to the reason that the deadline for handling thereof under the Act, the Enforcement Decree, the Rule or this Regulation is yet to arrive.
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 Article 12 (Respect, etc. of Matters Agreed between Parties)   print
(1) In reviewing a reported licensing agreement and details of business plan, the competent Minister shall respect the matters agreed upon between the supplier of technology and the introducer of technology and ensure not to hinder the free introduction of technology.
(2) In reviewing a reported licensing agreement, the competent Minister shall neither make public the confidential information related to the relevant technology nor request a civil enterprise, including an association of the relevant industry, to review it.
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 Article 13 (Transfer of and Consultation on Report)   print
(1) A person who intends to file a report on a licensing agreement shall submit a written report by distinctly determining the competent Minister of the relevant agreement, and shall submit it to the most related Minister if he/she judges that a plural number of Ministers are competent.
(2) A competent Minister who receives a report not falling under his/her jurisdiction shall transfer it to the competent Minister in charge and notify the reporter thereof. In such cases, the date of report shall be the date on which the competent Minister in charge has received the report by transfer.
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 Article 14 (Notification of Reports)   print
(1) The competent Minister who receives a report on a licensing agreement shall issue a certificate of completion of reporting to the reporter within the handling period prescribed in Article 32 of the Enforcement Decree.
(2) Upon issuing a certificate of completion of report on a licensing agreement under paragraph (1), the competent Minister shall notify without delay the Minister of Trade, Industry and Technology and the Minister of Science, ICT and Future Planning of the details thereof in the form prescribed in attached Table 3.
(3) Where the reporter of a licensing agreement requests the competent Minister not to disclose the details of the agreement due to the possibility of leakage of confidential business information, occurrence of an external dispute, etc., the Minister shall determine the necessity thereof and attach his/her written opinion at the time the notification referred to in paragraph (2) is made.
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 Article 15 (Importation of Technology by Organizations, etc.)   print
Any enterprisers' organization, technology-related research institutes, etc. may, at the position of an introducer of technology, enter into licensing agreements for the transfer, hand-over or improvement of importing technology to the enterprises concerned.
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 Article 16 (Prior Consultation on Formulation, etc. of Regulations)   print
In formulating or amending any necessary regulation relating to the performance of affairs concerning the importation of technology under the Act and subordinate statutes on the promotion of foreign investment, the competent Minister shall have prior consultation with the Minister of Trade, Industry and Energy.
CHAPTER V HEADS OF ENTRUSTED AGENCIES, ETC.
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 Article 17 (Heads of Entrusted Agencies)   print
(1) The authority of the Minister of Trade, Industry and Energy specified in subparagraphs of Article 40 (2) of the Enforcement Decree under the main sentence of the same Article 40 (2) shall be entrusted to the heads of entrusted agencies listed in attached Table 4 and the heads of trade office, branch offices, office, and business office, designated by the relevant heads of entrusted agents: Provided, That where the nationality of a person who intends to make a foreign investment is Cambodia, Laos or Cuba, such authority shall not be entrusted as the heads of any entrusted banks listed in B (b) of attached Table 4.
(2) When the head of an entrusted agency intends to designate or change the head of a trade office, branch office, office or business office to fully or partially delegate the authority entrusted under paragraph (1), he/she shall file a report thereon with the Minister of Trade, Industry and Energy in advance.
(3) Where a financial institution designated as an entrusted agency pursuant to paragraph (1) is unable to perform its duties related to foreign investment due to a cause, such as merger with another financial institution, all documents related to the reports on foreign investments of foreign-capital invested companies which have been managed by the relevant entrusted agency shall be transferred to another agency designated as an entrusted agency. In such cases, the head of the relevant entrusted agency shall immediately inform the foreign-capital invested company thereof and file a report thereon with the Minister of Trade, Industry and Energy.
(4) Where the head of any entrusted agency falls under any of the following cases, the Minister of Trade, Industry and Energy may revoke the entrustment:
1. Where he/she requests any unnecessary document contrary to the provisions of Article 19 (2);
2. Where he/she fails to faithfully comply with the standards for handling business affairs;
3. Other cases where the Minister of Trade, Industry and Energy deems to have any good reason to revoke the business entrustment.
(5) Where the head of an entrusted agency delegated with the authority under paragraph (1) intends to return the relevant entrusted authority, he/she shall request the Minister of Trade, Industry and Energy to take necessary measures.
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 Article 18 (Placement, etc. of Personnel in Charge)   print
(1) The head of an entrusted agency shall open a window to deal with the affairs entrusted under paragraph 17 and arrange personnel in charge.
(2) The head of an entrusted agency shall establish and operate a facility for providing guidance in foreign investment and for receiving, handling, etc. of complaints.
(3) The head of an entrusted agency shall keep civil affairs formulas, guidebooks, and other materials related to foreign investment in the facility referred to in paragraph (2) and furnish them when a civil petitioner requests them.
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 Article 19 (Promotion of Foreign Investment)   print
(1) The head of an entrusted agency shall strive to induce foreign investment through domestic and overseas business offices, etc. under his/her control.
(2) In performing the affairs entrusted by the Minister of Trade, Industry and Energy under Article 40 (2) of the Enforcement Decree, no head of any entrusted agency shall request any unnecessary document other than the forms prescribed in the Rule.
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 Article 20 (Changes of Entrusted Agency)   print
(1) Where a foreign investor or a foreign-capital invested company that has filed a report pursuant to Article 5 or 8-2 of the Act or registered as a foreign-capital investment company under Article 21 of the Act intends to change the entrusted agency due to the change of his/her or its bank or relocation of the main office, or for any other reason, he/she or it shall file an application for the change of the entrusted agency with the head of the existing entrusted agency.
(2) The head of an entrusted agency in receipt of an application for change of the entrusted agency under paragraph (1) shall transfer without delay all documents related to the report on foreign investment of the relevant foreign investor or the foreign-capital investment company to the head of a newly entrusted agency that intends to perform follow-up management affairs.
(3) Upon receiving relevant documents, the head of an entrusted agency who is newly entrusted to perform follow-up management affairs under paragraphs (1) and (2) shall file a report without delay on names of foreign investor, foreign-capital investment company, the head of the former entrusted agency, etc. with the Minister of Trade, Industry and Energy.
(4) Where a foreign investor or foreign-capital investment company files a report on foreign investment or acquisition of stocks, etc. under Articles 5 through 8-2 of the Act or files an application for registration or registration for change under Article 21 of the Act with the head of the Korea Trade-Investment Promotion Agency which is not the relevant entrusted agency, he/she or it may choose not to change the relevant entrusted agency, notwithstanding paragraph (1).
(5) Upon receiving a report or an application for registration under paragraph (4), the head of the Korea Trade-Investment Promotion Agency shall proceed with the affairs related to the report and registration and transfer the relevant documents concerned without delay to the head of the relevant entrusted agency.
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 Article 21 (Request, etc. for Cooperation of Head of Entrusted Agency)   print
If deemed necessary for dealing with complaints, etc. of a foreign investor or foreign-capital investment company, the head of an entrusted agency may request cooperation from the Minister of Trade, Investment and Energy or the head of a grievance committee under Article 15-2 (7) of the Act.
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 Article 22 (Reporting)   print
The head of an entrusted agency shall file a report with the Minister of Trade, Industry and Energy on the record of reports, etc. on foreign investment as separately prescribed by the Minister of Trade, Industry and Energy.
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 Article 23 (Standards for Handling Business Affairs)   print
In addition to matters prescribed in Articles 17 through 22, the Minister of Trade, Industry and Energy may prescribe the standards for handling affairs related to report handled by the head of an entrusted agency.
CHAPTER VI SUPPLEMENTARY PROVISIONS
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 Article 24 (Standards for Classification of Industry-Supporting Service Business)   print
The industry publicly announced by the Minister of Trade, Industry and Energy under Article 25 (1) 1 and 2 (e) of the Enforcement Decree shall refer to the logistics business under subparagraph 10-4 of Part 2 of Table 1 attached to the Regulation on Tax Exemption or Reduction for Foreign Investment (Ministry of Strategy and Finance Public Notification No. 2012-17).
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 Article 25 (Reporting to be Made by Commissioners of the National Tax Service and the Korea Customs Service)   print
(1) The Commissioner of the National Tax Service shall conduct an examination under Article 29 (3) of the Enforcement Decree each year and report the results thereof to the Minister of Trade, Industry and Energy within 60 days from the deadline of return of tax base under Article 26 of the Corporate Tax Act or Article 70 of the Income Tax Act.
(2) The Commissioner of the Korea Customs Service shall conduct an examination under Article 29 (3) of the Enforcement Decree each year and report the results thereof to the Minister of Trade, Industry and Energy.
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 Article 26 (Scope, etc. of Information Subject to Prohibition of Public Disclosure)   print
(1) "Data prescribed by the Minister of Trade, Industry and Energy" in Article 21 of the Rule means the matters related to the business plan such as design drawings, flow chart of production process and production of products, and other trade secrets of a foreign-capital investment company which are likely to significantly harm the rightful interest of the relevant company, if disclosed.
(2) Article 21 of the Rule and paragraph (1) shall apply mutatis mutandis to the performance of the business affairs by the head of an entrusted agency defined in Article 2 (2) and the heads of trade offices, branch offices, offices, and business office delegated with all or part of the authority by the head of the relevant entrusted agency.
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 Article 27 (Application of Acts and Subordinate Statutes concerning Treatment of Civil Petitions)   print
Except as otherwise expressly prescribed by the Act, the Enforcement Decree, the Rule or this Regulation, the procedures for reporting, permission, etc. related to foreign investments and importation of technology shall be governed by the Civil Petitions Treatment Act and its subordinate statutes.
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 Article 28 (Deadline for Reexamination)   print
The deadline for taking measures, such as repeal, amendment, etc. of this public notification after reviewing the Acts and subordinate statutes or changes in reality conditions, etc. after this public notification is issued under the Regulations on the Issuance and Management of Directives and Established Rules (Presidential Decree No. 248) shall be March 31, 2015. <April 1, 2012>
ADDENDA
(1) (Enforcement Date) This public notification shall enter into force on the date of its notification.
(2) (Effective Period) Article 22 shall remain in effective until June 29, 1999.
(3) (Repeal of Other Public Notifications) The Regulation on Foreign Investment (Ministry of Finance and Economy Public Notification No. 1999-6) and the Regulation on Technology Introduction (Ministry of Finance and Economy Public Notification No. 1998-49) shall be repealed respectively.
ADDENDUM <Ministry of Commerce, Industry and Energy Public Notification No. 2000-24, Feb. 29, 2000>
This Regulation shall enter into force on March 1, 2000.
ADDENDUM <Ministry of Commerce, Industry and Energy Public Notification No. 2000-28, Mar. 16, 2000>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Commerce, Industry and Energy Public Notification No. 2001-30, Mar. 14, 2001>
This Regulation shall enter into force on the date of its promulgation: Provided, That the amended provisions of Article 6 shall enter into force on May 24, 2001.
ADDENDUM <Ministry of Commerce, Industry and Energy Public Notification No. 2002-29, Mar. 4, 2002>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Commerce, Industry and Energy Public Notification No. 2002-115, Nov. 29, 2002>
ADDENDUM <Ministry of Commerce, Industry and Energy Public Notification No. 2004-51, May 11, 2004>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Commerce, Industry and Energy Public Notification No. 2006-30, Mar. 23, 2006>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Commerce, Industry and Energy Public Notification No. 2007-124, Nov. 13, 2007>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2008-035, Feb. 29, 2008>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2008-054, May 23, 2008>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2008-141, Oct. 1, 2008>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2008-166, Nov. 18, 2008>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2009-193, Aug. 21, 2009>
This Regulation shall enter into force on August 24, 2009.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2010-63, Mar. 17, 2010>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2011-41, Mar. 7, 2011>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2011-170, Sep. 1, 2011>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2012-67, Mar. 26, 2012>
This Regulation shall enter into force on April 1, 2012.
ADDENDUM <Ministry of Knowledge Economy Public Notification No. 2012-95, May 2, 2012>
This Regulation shall enter into force on the date of its promulgation.
ADDENDUM <Ministry of Trade, Industry and Energy Public Notification No. 2013-37, May 30, 2013>
This Regulation shall enter into force on the date of its promulgation.