에너지산업에 대한 외국인투자법제의 분석

The purpose of this paper is to analyse the present restrictions of Korea on foreign investment in energy industry, and to provide future prospect. The usual way of study to achieve this purpose is 1) to present an ideal model of energy industry through economic analysis of various models and of government policy, 2) to compare the present state with the model, and 3) to provide action plans needed to reach the model, including those on investment of foreign investors. This way of study requires various economic analysis techniques, for which the author, a legal scholar, doesn't have comparative advantage. For this reason, this paper takes up the following method: First, it studies legal barriers, expressly provided in acts or other regulations, on foreign investment in energy industry. It also examines other barriers of governmental policy on energy industry, such as license and permission. Second, it compares the present situation of foreign investment in energy industry with the legal barriers. This comparison is expected to show what government policy works as practical restrictions (in addition to legal barriers) on foreign investment in energy industry and how change of government policy will affect it. Next, it analyses plans of Korean Government on energy industry. Through this analysis, we can discern the policy of Korean Government for future structure of energy industry and predict future liberalization of foreign investment in energy industry. In addition, this paper studies the trends in WTO and FTA energy service liberalization and new types of business in energy industry, which I think will affect the policy of Korean Government on foreign investment in energy industry. The legal barriers on foreign investment in energy industry may be summarized as follows: (Electric Energy Industry) 1. Foreign investment in electric generation with atomic energy is prohibited. 2. Foreign investment to build new electric generation facilities is permitted without restriction. But, foreign investment in electric generation industry, through purchasing KEPCO(Korea Electric Power Corporation)-owned facility is limited up to 30% of total facilities. 3. Direct foreign investment in transmission and distribution is permitted with the only restriction that a foreign investor may not be the majority shareholder. Foreign investment through purchasing the stocks of KEPCO is limited up to 3% per person and up to 40% in total. 4. All types of business are subject to government permission, which is applied without discrimination with domestic investors. (Gas Industry) 1. No restrictions are provided in direct foreign investment in gas industry. But, foreign investment by way of purchasing the stocks of KOGAS(Korea Gas Corporation), is permitted up to 15% per person and 30% in total. 2) All types of business are subject to government permission, which is applied without discrimination with domestic investors. (Oil Industry) 1. There is no limitation on foreign investment. 2. All types of business are subject to report or registration, which is easy to meet. Comparing legal restrictions and the present situations in energy industry, the following discrepancies are discerned: (Electric Energy Industry) 1. The KEPCO-owned electric generation facilities are divided into 5 KEPCO- controlled subsidiaries, and their privatization is suspended for the time being. 2. Transmission and distribution business is under monopoly of KEPCO. (Gas Industry) 1. Import and wholesale supply of gas is under monopoly of KOGAS. 2. The long-distance pipeline and large-scale storing facilities are under monopoly of KEPCO. 3. Retail supply of gas is under monopoly of about 30 regionally-divided retail suppliers. These discrepance is due to the denial of issuing government permission, which is caused by suspension or delay of energy industry liberalization plan of 2002. Therefor, in order to predict when these businesses will be open to foreign investment, it is necessary to analysis government planned policy. In 2008, the new Korean Government has made a new plan. The new plan does not provide concrete time table for liberalization of and introducing competition into energy industry, which the old plan of 2002 provided. Therefore, it may be said that these businesses would not be open to foreign investors in near future. But one important plan, plan for advancement of public corporations, was announced in 27 August 2008. According to the plan, the industry of import and wholesale supply of gas, which is under monopoly of KOGAS at present, is planned to be liberalized and changed into competition system. The plan says that in 2010 new permission for import and wholesale distribution of gas for electric generation will be issued, and the permitted volume of import and distribution will be large enough to guarantee actual competition. The plan also provide that the competition will be expanded to the import and distribution of gas for the use in other industries.