국가안보와 외국인 투자규제 - 외국인 투자촉진법 시행령 제5조를 중심으로

Korea is aggressively expanding its FTA and BIT networks these days to invite more foreign investment into the Korean market. The prevalence and expansion of the foreign investment in Korea have also brought an important policy consideration, which is whether and when the Korean government can restrict foreign investment if it is targeted at the national security-related area or other vital national interest-related areas. If unbridled, foreign investment in these areas has the potential of illegitimately undermining the Korean government’s authority to preserve and exercise its sovereignty. In this respect, the Korean government recently amended the Enforcement Decree of the Foreign Investment Promotion Act (“Enforcement Decree”) to reflect this concern. However, it did not amend the Foreign Investment Promotion Act (“FIPA”) itself, nor did it adopt a new legislation in this regard. Although Article 5 of the Enforcement Decree does provide more elaborated provisions regarding the government’s authority to restrict foreign investment because of the national security concerns, its exact scope and coverage still remain uncertain. This is mainly because the FIPA apparently adopts a different concept and scope for this issue in its text than the Enforcement Decree. Depending upon how these provisions in the FIPA and Enforcement Decree are interpreted, the exact scope of the national security-related restriction on foreign investment would vary and fluctuate. What is particularly unclear, and thus controversial, is whether the national security-related restriction on foreign investment also covers the situation where national vital economic interest is being threatened. This idea has been floated for some time since the Korea-U.S. FTA negotiations triggered this debate, but there is still no clear answer yet. Generally speaking, the international trend appears not to support this kind of concept, but at the same time it also appears that there are situations where the whole economic structure is in danger as we saw in 1998 or 2008 financial crises and that such situations may warrant the application of the national security-related restriction clause. It is simply not clear yet at this point. Worse yet, the Enforcement Decree and the FIPA add more confusion and uncertainty regarding this issue. As such, it is advised that the Korean government contemplate this crucial issue and reach an appropriate conclusion sooner rather than later taking all relevant factors into consideration, including the international trend, the interpretation of the relevant provisions in various agreements and the legislative development in other countries. Based on this preparation, the Enforcement Decree and the FIPA could and should be fine-tuned and adjusted so as to avoid unnecessary investment disputes or for Korea to prevail in a specific dispute in the future.