Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister for Foreign and European Affairs,
Considering articles 52 to 55 of the Constitution;
Having regard to Act No. 2007-247 of 26 February 2007 authorizing the approval of the Social Security Agreement between the Government of the French Republic and the Government of the Republic of Korea, signed in Paris on 6 December 2004;
In view of the amended Decree No. 53-192 of 14 March 1953 concerning the ratification and publication of the international commitments undertaken by France,
Decrete:
The Social Security Agreement between the Government of the French Republic and the Government of the Republic of Korea, signed in Paris on 6 December 2004, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign and European Affairs are responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.
A C C O R D
DE SÉCURITÉ SOCIAL ENTRE LE GUVERNEMENT DE LA RÉPUBLIQUE FRANÇAISE ET LE GOUVERNEMENT DE LA RÉPUBLIQUE DE CORÉE
The Government of the French Republic and the Government of the Republic of Korea,
Desirous of regulating the relations between their two States with regard to social security,
agreed that:
PART I
GENERAL PROVISIONS
Article 1
Definitions
For the purposes of this Agreement,
1. The term "territory of a Contracting State" means, in accordance with international law:
- with regard to France: the European and overseas departments of the French Republic, including their territorial waters and the area beyond the territorial sea on which France can exercise sovereign rights for the purposes of exploration and exploitation, conservation and management of biological and non-living natural resources;
- with respect to Korea: the territory of the Republic of Korea, including its territorial waters and the area beyond the territorial sea on which the Republic of Korea may exercise sovereign rights or jurisdiction.
2. The term "national" means:
- in France: a person of French nationality;
- with respect to Korea: a national of the Republic of Korea as defined in the Nationality Act.
3. The term "employed worker" means, with respect to France, any person engaged in an employee activity or assimilated within the meaning of French social security legislation and, with respect to Korea, any person recognized as an employee in the meaning of Korean social security legislation.
4. The term "non-employed worker" means a person defined or recognized as non-employed within the meaning of French legislation or Korean social security legislation.
5. The term "laws" means the laws and regulations specified in section 2.
6. The term "competent authority" means:
- with regard to France: the ministers responsible, each with regard to it, for the implementation of the laws mentioned in paragraph 1 (a) of Article 2;
- with respect to Korea: the ministers responsible, each with respect to it, for the implementation of the legislation referred to in paragraph 1 (b) of Article 2.
7. The term "competent institution" means:
- in respect of France, the administration or the body responsible, in whole or in part, for the application of the legislation referred to in paragraph 1 a of Article 2;
- in respect of Korea, the administration or the body responsible, in whole or in part, for the application of the legislation referred to in paragraph 1 (b) of Article 2.
8. The term "insurance period" means any period of payment of premiums defined as an insurance period by the legislation under which this period has been completed or is considered to be completed and any period assimilated to that period to the extent that it is recognized by this legislation as equivalent to an insurance period. No longer considered as an insurance period the period already taken into account by the payment of contributions.
9. The term "delivery" means any provision in cash or in kind that is contributive in the legislation of either of the Contracting States.
10. The term "patride" means any person defined as stateless by Article 1 of the New York Convention relating to the Status of Stateless Persons of September 28, 1954.
11. The term "refugee" means a person defined as a refugee by Article 1 of the Geneva Convention relating to the Status of Refugees of 28 July 1951 and the Protocol to that Convention of 31 January 1967.
12. The term "official language" refers to the French language and Korean language for France.
13. Any term, not defined in this article, has the meaning conferred on it by the applicable legislation.
Article 2
Field of material application
1. This Agreement shall apply:
(a) In France:
(i) legislation establishing the organization of social security;
(ii) legislation establishing the applicable social insurance system:
- workers employed in non-agricultural occupations;
- workers employed in agricultural occupations;
(iii) legislation on the prevention and repair of occupational accidents and occupational diseases; legislation on insurance against industrial accidents and occupational diseases of agricultural non-salaries;
(iv) Family benefits legislation;
(v) the laws relating to special social security schemes as they relate to the risks and benefits covered by the laws listed above, but excluding the special public service regime;
(vi) the legislation on health insurance and maternity for non-salaries in non-agricultural occupations and the legislation on health and maternity insurance for non-salaries in agricultural occupations;
(vii) the legislation on old-age benefits and old-age insurance for non-salaries of non-agricultural professions, the legislation on old-age insurance and disability for members of the clergy and religious orders, the legislation on old-age insurance for lawyers and the legislation on old-age insurance for non-salariees of agricultural professions.
(b) In Korea:
(i) national pension legislation;
(ii) legislation on compensation for accidents at work;
(iii) public health insurance legislation.
2. This Agreement excludes, with respect to French legislation, the provisions of the Convention and the plans for which the creation is left to the initiative of the persons concerned in respect of supplementary pension.
3. By derogation from the provisions of paragraph 1 (a), (ii), (iii) of this Article, this Agreement shall not apply to the provisions of French legislation that extend to French nationals who work or have worked outside French territory the right to join voluntary insurance.
4. This Agreement shall also apply to legislative acts amending or supplementing the legislation specified in paragraph 1; However, it will only apply to future legislative acts of a Contracting State creating new categories of beneficiaries if there is no opposition from the competent authority of that Contracting State notified to the competent authority of the other Contracting State in writing and within a period of three months from the date of the official publication of the new legislative act.
5. Unless otherwise provided for in this Agreement, the legislative acts within the meaning of paragraph 1 shall not include the social security acts taken under the treaties establishing the European Communities or other international agreements that may be in force between one or the other of the Contracting States and a third State, or the laws or regulations enacted for the purpose of their application.
Article 3
Field of personal application
Unless otherwise provided for in this Agreement, this Agreement shall apply:
(a) employees and non-employed persons, irrespective of their nationality, and refugees or stateless persons, as defined in Article 1 who are or have been subject to the laws referred to in Article 2 and
(b) the rightful persons and survivors of the persons referred to in paragraph (a).
Article 4
Equal treatment
1. Nationals of one of the Contracting States, refugees and stateless persons, who are or have been subject to the legislation of either of the Contracting States and who reside in the territory of the other Contracting State, shall be entitled to equal treatment to that granted to nationals of the other Contracting State in accordance with the law of that other Contracting State, as defined in Article 2, subject to special provisions.
2. However, membership in the Korean public health insurance scheme is optional for French nationals residing in Korea.
PART II
RELATIVE PROVISIONS
APPLICABLE LEGISLATION
Article 5
General rules concerning wage workers
1. Workers occupied in the territory of a Contracting State shall be subject only to the law of that Contracting State, even if they do not reside in the territory of that State or if the enterprises or employers occupying them do not have their seat or domicile in the territory of that State.
2. The personnel navigating public or private international air transport enterprises of one of the Contracting States shall be subject exclusively to the legislation of the Contracting State in which the company has its seat. However, the person occupied by a branch or permanent representation that the company has in the territory other than that where it has its seat is subject to the law of the State on which the branch or permanent representation is located.
Article 6
General rules concerning non-employed workers
Non-employed workers occupied in the territory of a Contracting State are subject to the law of that State even if they do not reside in the territory of that State.
Article 7
Diplomatic and consular personnel
Officials and other categories of state agents
1. This Agreement does not affect the provisions of the Vienna Convention on Diplomatic Relations of 18 April 1961 or those of the Vienna Convention on Consular Relations of 24 April 1963.
2. Nationals of a Contracting State employed by the Government of that Contracting State in the territory of the other Contracting State, but not excluded from the application of the legislation of the other Contracting State under the conventions referred to in paragraph 1, shall be subject only to the legislation of the first Contracting State. For the purposes of this paragraph, the notion of employment by the Government of a Contracting State shall include the employment of civil and military officials and assimilated personnel, as well as of employees in the service of the Government of that Contracting State or of an agency dependent on the Government of that Contracting State, exercised in the territory of the other Contracting State.
For the purposes of this paragraph, the concept of employment by the Korean Government also includes employment by the local authorities of the Republic of Korea.
Article 8
Rules concerning the detachment of employed workers
1. The employed worker occupied by a company established in the territory of a Contracting State, who is seconded by his employer in order to carry out work on behalf of the latter in the territory of the other Contracting State for a foreseeable period not exceeding a total of 36 months, remains subject, for the whole of the risks during the period of the secondment, to the social security legislation referred to in Article 2 of the first Contracting State, as if he exercises
2. However, if the duration of the work to be performed for the same employer extends beyond the period initially provided for in paragraph 1 of this article, the legislation of the first Contracting State shall remain applicable for a further period of 36 months, by mutual agreement by the competent authorities of the two States or the bodies designated for that purpose.
3. The provisions of the preceding paragraphs shall also apply to an employee who has been detached by his employer from a Contracting State in the territory of a third State and who is subsequently detached by the same employer from that third State in the territory of the other Contracting State.
Article 9
Exceptions to the provisions of articles 5 to 8
The competent authorities of the two Contracting States, or the institutions designated by them, may jointly provide for exceptions to the provisions of this Title in favour of a person or class of persons, provided that the person or persons concerned are subject to the law of a Contracting State.
Article 10
Obligation of insurance against the health risk and occupational accident for workers separated from Korea in France
The validity of the employee's detachment provided for in Articles 8 and 9 of this Agreement shall be subject to the subscription, by the employer who detaches him or by the employer who welcomes him in France, of an insurance guaranteeing him, as well as to the beneficiaries who accompany him, the care of all the medical expenses, including the costs of hospitalization, for the duration of his stay on the territory of the employee.
Similarly, for an employee who does not benefit from protection against occupational accidents and occupational diseases provided for by the Korean occupational accident regime, the employer must justify the subscription of another insurance. In the absence of such assurances, the provisions of Article 5 of this Agreement shall apply.
PART III
PROVISIONS RELATING TO FIRST
INVALIDITY, VIEWS AND SURVIVANTS
Chapter 1
Common provisions
Article 11
Total
1. Where the legislation of a Contracting State submits the opening or maintenance of the right to benefits for the performance of periods of insurance, registration or employment, the competent institution of that State shall take into account the periods of insurance, registration or employment carried out under the law of the other Contracting State, as if they had been fulfilled under the law that that institution applies, provided that such periods do not overlap.
2. If, pursuant to the law of one of the two States, the granting of certain benefits is conditional on the condition that the periods of insurance have been made in a particular profession or employment, the periods of insurance acquired under the law of the other State shall be taken into account in determining the opening of the right to such benefits only if they have been carried out in the same profession or employment.
Article 12
Payment of benefits
1. Benefits acquired under the legislation of a Contracting State shall be paid directly to the persons concerned, even if they no longer reside in the territory of a Contracting State.
2. Invalidity, old age or survivor benefits, work accident and occupational illness annuities and death allowances granted may not be subject to any limitation, reduction, modification, suspension, cancellation or forclusion on the sole ground that the individual resides in the territory of the other Contracting State.
3. The benefits referred to in paragraph 2 above, granted under the legislation of a Contracting State, shall be paid to nationals of the other Contracting State who are habitually resident in the territory of a third State, under the same conditions as to nationals of the first Contracting State residing in the territory of a third State.
4. The debiting institutions of benefits under this Agreement are validly released into the currency of their State.
Chapter 2
Provisions specific to France
Article 13
Disability, old age and survivor benefits
Liquidations
1. The competent institution shall, in the following manner, liquidate the benefits of the employee or non-employed worker who has been subjected successively or alternatively to the laws of the two Contracting States or of the survivors of that worker:
(a) Where the conditions required by the law applied by the competent institution for entitlement to benefits are met without the need to enforce the provisions of Article 11 of this Agreement, the institution shall calculate the amount of the benefit that would be due:
- on the one hand, under the only provisions of the law applied,
- on the other hand, pursuant to the provisions of (b) below,
and grants the person concerned the benefit of the highest amount.
(b) Where the conditions required by the law applied by the competent institution to be entitled to benefits are met only after the application of the provisions of Article 11 of this Agreement, this institution shall calculate the theoretical amount of the benefit to which the person concerned may claim if all insurance periods under the laws of the Contracting States had been fulfilled under the legislation that it applies at the time of liquidation.
The competent institution then determines the effective amount of the benefit granted to the person concerned on the basis of the theoretical amount referred to above, prorated to the duration of the insurance periods completed before the realization of the risk under the legislation it applies in relation to the total duration of the insurance periods completed before the realization of the risk under the laws of the two Contracting States.
2. If the total duration of the insurance periods under the laws of the two Contracting States is greater than the maximum duration required by the legislation applicable to the competent institution for the benefit of a full benefit, the maximum duration shall be taken into account instead of the total duration of the said periods for the purposes of the provisions of (b) second paragraph of paragraph 1 of this Article.
3. If the total duration of the insurance periods under French legislation does not reach one year, the competent institution is not required to grant the benefits under such periods unless, under these only periods, a right of benefit is acquired under this legislation. In this case, the law is liquidated on the basis of these only periods. However, these periods may be taken into consideration for the opening of rights by totalisation, under Korean legislation.
Article 14
Disability, old age and survivor benefits
Insurance periods
1. Where French legislation provides for the right to an old age, survivor or disability benefit provided that the insurance periods have been completed within a specified period of time, this condition shall be deemed to be met when the insurance periods under Korean legislation have been fulfilled within the same period.
2. Where, pursuant to French legislation, the liquidation of the old age, survivor or disability benefit is made on the basis of the average wage or income of all or part of the insurance period, the average wage or income taken into consideration for the calculation of the benefit is determined by the wages or income recognized during the insurance period under French law.
Article 15
Old age and survivor benefits
successive liquidations
1. Where the insured person does not meet, at any time, the age requirement required by the laws of the two Contracting States, but only meets the age requirement of one of them, the amount of benefits due under the legislation in respect of which the right is open is calculated in accordance with the provisions of Article 13, paragraph 1 (a) or (b) as the case may be.
2. The provisions of paragraph 1 shall also apply when the insured meets, at a particular time, the conditions required by the old-age insurance laws of the two Contracting States, but has used the possibility offered by the legislation of one of the Contracting States to defer the liquidation of his benefits rights.
3. Where the age requirement required by the law of the other State is met or when the insured person requests the liquidation of his or her rights that he or she had deferred under the law of one of the Contracting States, the disposition of the benefit due under that legislation shall be effected, in accordance with article 13, paragraph 1 (a) or (b) as the case may be.
Chapter 3
Korea-specific provisions
Article 16
Benefits
1. In order to benefit from disability benefits or survivors, the condition required by Korean legislation that the person must be insured when the covered event occurs is considered to be satisfied if the person has been insured for the same risks under French law.
2. Paragraphs 1 and 2 of section 11 and paragraph 1 of this section shall apply, for the opening of the rights to old age, disability and survivor benefits, only if the insured person has completed at least 12 months of insurance under Korean legislation.
3. If the insurance periods recognized under French legislation are taken into account to determine the opening of the right to benefits under Korean legislation in accordance with the provisions of Article 11 and paragraph 1 of this Article, the benefits due shall be calculated as follows:
(a) the Korean competent institution first calculates an amount of pension equal to the amount that would have been due to the person if all insurance periods recognized under the laws of the two Contracting States had been completed under Korean legislation. To determine the amount of the pension, the Korean Institute takes into account the average of the person's monthly normal income when insured under Korean legislation;
(b) the Korean competent institution shall calculate the partial benefits to be paid, in accordance with the provisions of Korean legislation, from the amount of pension established in accordance with the provisions of the preceding paragraph, on the basis of the duration of the insurance periods taken under its own legislation in respect of all insurance periods taken under the laws of the two Contracting States.
4. A lump sum refund is granted to nationals of the other Contracting State under the same conditions as Korean nationals.
5. The provisions of Korean legislation limiting the granting of disability benefits or survivors in the case that the insured, who meets the other conditions of opening the rights, did not pay the contributions, notwithstanding the provisions of Article 11, taking into account the only provisions of Korean legislation.
PART IV
RELATIVE PROVISIONS
FAMILY PRESTATIONS
Article 17
Family benefits for seconded workers
The workers held in the French social security regime under articles 8 and 9 which are detached in Korea benefit, for their accompanying children, from French family benefits, as listed in the administrative arrangement for the application of this Agreement.
PART V
OTHER PROVISIONS
Article 18
Free transfer
Notwithstanding all domestic provisions in the area of foreign exchange regulation, the two Governments undertake each other to make no obstacles to the free transfer of the sums corresponding to all financial regulations related to social protection operations either under this Agreement or in accordance with the domestic legislation of each Contracting State concerning wage and non-earmarked workers, including voluntary insurance and supplementary pension schemes.
Article 19
Protection of entitlement
1. The provisions of this Agreement shall apply only to applications for benefits submitted from the effective date of this Agreement.
2. If the Contracting State has submitted a request for benefits in writing to the competent institution of one of the Contracting States and has not expressly limited its application to the benefits provided by the legislation of that Contracting State, its application shall also safeguard its rights under the legislation of the other Contracting State, if it provides information indicating that the person entitled to benefits has been subject to the legislation of the other Contracting State.
Rule 20
Filing of applications, appeals or documents
Requests, appeals or other documents that should have, under the law of one of the Contracting States, been filed with a competent institution of that State within a specified period of time shall be admissible if they are filed within the same period with a competent institution or the liaison agency of the other Contracting State. In this case, the competent institution or liaison agency to which applications, appeals or documents have been filed shall indicate the date of receipt of the document and shall transmit it without delay to the competent institution or liaison agency of the other Contracting State.
Article 21
Assistance and administrative arrangement
1. The competent authorities and the institutions of the Contracting States shall, within their respective jurisdiction, lend their good offices in the implementation of this Agreement. This assistance is free of charge, subject to exceptions to be agreed in the administrative arrangement.
2. The competent authorities of the two Contracting States:
(a) enter into an administrative arrangement and any other administrative arrangements necessary for the application of this agreement;
(b) disclose any information regarding the measures taken to implement this Agreement;
(c) shall, as soon as practicable, communicate any information concerning any changes made to their respective legislation that may affect the application of this Agreement.
3. Liaison agencies are designated in the administrative arrangement for the purposes of this Agreement.
Article 22
Correspondence, exemption from fees
and document certification
1. The competent authorities and institutions of the Contracting States shall correspond directly with each other and with any person at any place of residence, as necessary for the application of this Agreement. Correspondence is done in the sender's language.
2. Requests or documents may not be rejected on the ground that they are written in the official language of the other Contracting State.
3. Unless otherwise provided in the national legislation of one of the Contracting States, any information relating to a person transmitted under this Agreement to that Contracting State by the other Contracting State shall be used for the sole purpose of applying this Agreement. Such information, transmitted to a Contracting State, shall be processed in accordance with the national legislation of that Contracting State in the field of privacy and confidentiality of personal data.
4. Exemptions or reductions of taxes, stamps, or other duties provided for in the legislation of one of the Contracting States for documents to be produced pursuant to the law of that Contracting State shall be extended to the documents corresponding to produce to the competent authorities or institutions of the other Contracting State under this Agreement.
5. Documents and certificates submitted to the competent authorities and institutions of the other competent State pursuant to this Agreement shall be exempted from authentication or legalization by the diplomatic or consular authorities.
6. Copies of certified documents by a competent institution of one of the Contracting States shall be recognized as compliant copies by a competent institution of the other Contracting State without further certification. The competent institution of each Contracting State shall be the last resort to the value of the evidence presented to it, irrespective of the origin.
Article 23
Settlements of disputes
1. Disputes arising in respect of the interpretation and application of this Agreement shall be settled by the competent authorities of the Contracting States.
2. In the event that a settlement is not possible by this means, the dispute is settled by mutual agreement between the two governments.
PART VI
TRANSITIONAL AND FINAL PROVISIONS
Article 24
Transitional provisions
1. This Agreement shall not open any right to payment of benefits for a period prior to the date of its entry into force.
2. The insurance periods completed prior to the entry into force of this Agreement shall be taken into consideration for the determination of the right to benefits in accordance with this Agreement. However, a Contracting State may not be required to consider insurance periods prior to the earliest date from which insurance periods may be validated under its legislation.
3. This Agreement applies to events prior to its entry into force as these events are likely to open rights under the legislation referred to in section 2.
4. The effect of this Agreement is not to reduce a cash benefit for which a right is opened before it comes into force.
5. (a) Decisions made prior to the entry into force of this Agreement shall not affect the rights opened under the Agreement;
(b) Any benefit that has not been disposed of or has been suspended under the domestic law of either of the Contracting States, but that is to be paid under this Agreement, shall, at the request of the Contracting Party, be liquidated or restored from the date of entry into force of the Agreement provided that the previously liquidated rights have not given rise to a regulation;
(c) Similarly, a benefit already liquidated on the date of entry into force of this Agreement may, at the request of the individual, be reliquended in accordance with the provisions of this Agreement. The application must be filed within 2 years of the date of entry into force of the agreement. The effective date of the new liquidation is set at that same effective date.
6. For the purposes of paragraph 1 of Article 8 in the case of persons who have commenced a period of work in the territory of the other Contracting State before the date of entry into force of this Agreement, the period of wage activity referred to in this paragraph shall be deemed to have commenced at that last date. However, the relevant worker affiliated to that date to the legislation of the State in which the activity is carried out must have expressly given his agreement to stop raising this legislation. In this case, the provisions of the said legislation relating to the maintenance of the rights to health insurance, disability, death, acquired on the date of the release of a compulsory plan do not apply.
Rule 25
Entry into force
1. The two Contracting States shall notify each other in writing of the fulfilment of their respective legal and constitutional procedures required for the entry into force of this Agreement.
2. This Agreement shall enter into force on the first day of the third month following the date of receipt of the last notification.
Rule 26
Duration of validity and guarantee of acquired rights
and in the course of acquisition
1. This Agreement shall remain in force until the end of the calendar year following that in which one of the Contracting States has notified in writing its denunciation to the other Contracting State.
2. In the event of denunciation of this Agreement, the rights granted under this Agreement shall be maintained. Contracting States shall enter into arrangements for the rights being acquired.
In faith, the undersigned, duly authorized to do so by their respective Governments, have signed this Agreement.
Done in Paris on 6 December 2004, in two French and Korean copies, both texts being equally authentic.
For the Government
of the French Republic:
Michel Barnier
Minister for Foreign Affairs
For the Government
of the Republic of Korea:
Ban Ki-moon
Minister for Foreign Affairs
and Trade
Done in Paris, June 14, 2007.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
Minister for Foreign Affairs
and European,
Bernard Kouchner
