EMPLOYEE RETIREMENT BENEFIT SECURITY ACT [See entire ACT]

CHAPTER Ⅵ Retirement Pension Trustees and Their Services

Article 26 (Registration of Retirement Pension Trustees)

Any person falling under any of the following subparagraphs who wishes to be a retirement pension trustee shall register him/herself with the Minister of Employment and Labor after meeting requirements prescribed by Presidential Decree, such as financial soundness, personnel and physical resource requirements:

1. An investment trader, investment broker, or collective investment business entity under the Financial Investment Services and Capital Markets Act;

2. An insurance company under subparagraph 6 of Article 2 of the Insurance Business Act;

3. A bank under Article 2 (1) 2 of the Banking Act;

4. The National Credit Union Federation of Korea under subparagraph 2 of Article 2 of the Credit Unions Act;

5. The Korean Federation of Community Credit Cooperatives under Article 2 (3) of the Community Credit Cooperatives Act;

6. The Korea Workers' Compensation and Welfare Service under Article 10 of the Industrial Accident Compensation Insurance Act (The objects of the retirement pension business of the Korea Workers' Compensation and Welfare Service shall be limited to businesses employing less than 30 ordinary employees);

7. Any other person corresponding to those under subparagraphs 1 through 6 and prescribed by Presidential Decree.

Enforcement Ordinance

Article 20 (Registration Requirements, etc. for Retirement Pension Trustees)

(1) “Requirements prescribed by the Presidential Decree, such as financial soundness and personnel and physical requirements” in the part besides each subparagraph of Article 26 of the Act means the following requirements:
1. Financial soundness requirements classified as follows shall be met:
A. A person falling under subparagraph 1 through 3 or 7 of Article 26 of the Act:the capital adequacy ratio under Article 10 (1) of the Act, in Structural Improvement of the Financial Industry (hereinafter referred to as “capital adequacy ratio” in this Article), shall be not less than the standard determined and announced by the Financial Services Commission under paragraph (2) by the same Article;
B. A person falling under subparagraph 4 or 5 of Article 26 of the Act:the capital adequacy ratio shall be not less than the standard applicable to whom with the most similar business or finacial structure, among those falling under any of subparagraphs 1 through 3 and 7 of Article 26 of the Act;
C. A person falling under subparagraph 6 of Article 26 of the Act:he/she shall have a legal ground in order to get contributions from a fund established thereof.
2. Retirement Pension Trustees shall have necessary personnel, such as those with expertise in operational management services or asset management services and computer specialists required to carry out services, as determined and announced by the Financial Services Commission:Provided that if some of the operational management services have been entrusted to another person pursuant to Article 28 (2) of the Act, he/she shall be deemed to have necessary personnel for the relevant services;
3. Retirement Pension Trustees shall have computer facilities and offices necessary for carrying out operational management services or asset management services, as determined and announced by the Financial Services Commission. In such cases, the computer facilities shall have back-up facilities to persistence maintenance of services in such situations when there is an accident, such as a power cut or a fire, and computer systems shall be built up in advance to ensure that any changes in the contents of the plan, etc. do not cause damage to pension holders.
(2) Notwithstanding the proviso of paragraph (1) 2, a retirement pension trustee who intends to carry out the services specified in Article 28 (1) 2 of the Act must have a pension accounting specialist who meets all of the following requirements, as determined and announced by the Financial Services Commission:
1. The person shall be an insurance actuary registered under Article 182 (1) of the Insurance Business Act;
2. The person shall have at least one year of experience of working in retirement pension services, lump-sum retirement trust services or retirement insurance services;
3. The person shall have completed a job training about pension plan designing and accounting the pension as determined by the Financial Services Commission.
(3) The Financial Services Commission shall determine and announce detailed standards concerning the requirements specified in paragraph (1) 2 and 3 and paragraph (2). In such cases, the trustees shall consult with the Minister of Employment and Labor in advance.
(4) “Persons prescribed by the Presidential Decree” in subparagraph 7 of Article 26 of the Act means those licensed to do trust business under the Capital Markets and Financial Investment Services Act.
(5) The Minister of Employment and Labor shall accept registration, unless there is an application for registration under Article 26 of the Act falls under any of the following subparagraphs:
1. Where a person who applies for registration does not fall under any subparagraph of Article 26 of the Act;
2. Where the requirements specified in paragraphs (1), (2), (3) are not met.

Article 27 (Cancellation of Registration of Retirement Pension Trustees and Transfer Orders)

(1) If a retirement pension trustee falls under any of the following subparagraphs, the Minister of Employment and Labor may issue a corrective order or revoke his/her registration as prescribed by Ordinance of the Ministry of Employment and Labor: Provided, That where it falls under subparagraph 1 or 2, he/she shall revoke its registration:

1. Where the retirement pension trustee is dissolved;

2. Where the retirement pension trustee obtains registration under Article 26 by fraudulent or other illegal means;

3. Where the retirement pension trustee fails to meet the requirements for registration under Article 26;

4. Where the retirement pension trustee fails to comply with an order issued by the Minister of Employment and Labor or the Financial Services Commission pursuant to Article 36.

(2) No retirement pension trustee whose registration is revoked pursuant to paragraph (1) shall be eligible to register as a retirement pension trustee for three years from the date the registration is revoked.

(3) A retirement pension trustee who intends to discontinue the business related to a retirement pension plan shall apply for the cancellation of registration to the Minister of Employment and Labor. In such cases, a retirement pension trustee whose registration is cancelled shall not be eligible to register as a retirement pension trustee for two years from the date the registration is cancelled.

(4) A retirement pension trustee who has been subject to a disposition of cancellation of registration or applied for the revocation of registration under paragraph (1) or (3) shall take measures prescribed by Presidential Decree to protect the participants, including measures necessary to transfer the established retirement pension plans.

(5) If the Minister of Employment and Labor deems it necessary to protect employees' entitlement to receive benefits when registration is revoked or cancelled pursuant to paragraph (1) or (3), he/she may order the retirement pension trustee whose registration is revoked or cancelled to transfer all or part of his/her services to another retirement pension trustee. In such cases, the Minister of Employment and Labor shall obtain the consent of the retirement pension trustee to whom all or part of such services is transferred.

Enforcement Ordinance

Article 21 (Measures to Protect Pension Holders in Case of Cancelation of Registration, etc.)

“Measures for protection of pension holders prescribed by the Presidential Decree” in Article 27 (4) of the Act means the following measures:
1. Notifying the employer and pension holders of the fact that the registration has been cancelled or terminated, and the details of measures to protect pension holders;
2. Compensation for the financial losses to the employer and pension holders caused by a termination or change of the contract on operational management services or asset management services;
3. Providing materials, etc. necessary to transfer reserves to another retirement pension trustee under Article 27 (5) of the Act, and to ensure the continuous operation of the retirement pension plan of the business and pension holders;
4. Other measures necessary to prevent unreasonable damage that might be done to employers and pension holders, determined by the Minister of Employment and Labor.

Article 28 (Awarding of Contract on Operational Management Services)

(1) Each employer or participant who intends toestablish a retirement pension plan shall award a contract with a retirement pension trustee on the provision of the following services (hereinafter referred to as "operational management services"): Provided, That services mentioned in subparagraph 2 shall only apply when establishing defined benefit plans:

1. Providing the employer or participants with the methods of operating reserves and information on each operating method;

2. Designing a pension plan and conducting pension accounting;

3. Recording, keeping, and informing the current operational state of reserves;

4. Informing a retirement pension trustee providing asset management services pursuant to Article 29 (1), of the operating method chosen by the employer or participants;

5. Any other service prescribed by Presidential Decree to ensure the adequate provision of operational management services.

(2) A retirement pension trustee providing operational management services pursuant to paragraph (1) may have a person who meets the requirements prescribed by Presidential Decree, such as personnel and physical resource requirements, provide some of the services prescribed by Presidential Decree.

Enforcement Ordinance

Article 22 (Scope of Operational Management Services)

(1) “Services prescribed by the Presidential Decree” in Article 28 (1) 5 of the Act means the following services:
1. Establishing and operating an Individual Retirement Pension Plan under Article 24 of the Act;
2. Providing education entrusted by an employer under Article 32 (2) of the Act;
3. The following services in cases where a retirement pension trustee is a secretariat:
A. Checking whether the ability to pay benefits is proven, and giving notification of the results under Article 16 of the Act;
B. Calculating contributions under Article 4 (1) 1;
C. Conveying an employer’s instructions about the selection of a retirement pension trustee that pays benefits if a reason for a payment, such as retirement, occurs to the retirement pension trustee;
D. Other services necessary for the stable and coherent management of the plan, such as signing up new pension holders and giving notification about the amount of reserves and management status, in cases where a contract on operational management services under a Defined Benefit Retirement Pension Plan is made, with a multiple number of retirement pension trustees.
(2) A retirement pension trustee which is not a secretariat shall cooperate with the secretariat, such as by providing materials necessary to carry out the services specified in paragraph (1) 3.

Enforcement Ordinance

Article 23 (Partial Entrustment, etc. of Operational Management Services)

(1) “Some services prescribed by the Presidential Decree” in Article 28 (2) of the Act means the services specified in Article 28 (1) 2 through 4 of the Act, and Article 22 (1) 2.
(2) “Requirements prescribed by the Presidential Decree, such as personnel and physical requirements” in Article 28 (2) of the Act means the detailed standards determined and announced by the Financial Services Commission pursuant to Article 20 (3).

Article 29 (Awarding of Contract on Asset Management Services)

(1) Each employer or participant who has established a retirement pension plan shall award a contract with a retirement pension trustee on the provision of the following services (hereinafter referred to as "asset management services"):

1. Setting up and managing an account;

2. Receiving contributions;

3. Keeping and managing reserves;

4. Following instructions related to the operation of the reserves which are delivered by a retirement pension trustee providing operational management services;

5. Paying benefits;

6. Any other service prescribed by Presidential Decree to ensure the adequate provision of asset management services.

(2) If an employer or a participant intends to award a contract as prescribed in paragraph (1), it shall be made in terms of an insurance contract or trust contract prescribed by Presidential Decree with his/her employees or the participant as the insured or beneficiaries.

Enforcement Ordinance

Article 24 (Types of Contracts to Provide Asset Management Services)

“Insurance contract or trust contract prescribed by the Presidential Decree” in Article 29 (2) of the Act means an insurance that is managed through a special account under Article 108 of the Insurance Business Act, or a specified money trust contract under subparagraph 1 of Article 103 of the Enforcement Decree of the Capital Markets and Financial Investment Services Act, which meets all of the following requirements:
1. The amount of reserves shall exceed 150/100 of the amount of standard liability reserves, and the retirement pension trustee shall return the surplus to the employer if the employer demand such a return, pursuant to Article 16 (4) of the Act;
2. Benefits shall be paid in the event of a pension holder’s retirement;
3. A pension holder shall be allowed to directly claim benefits against the retirement pension trustee:Provided that a pension holder whose consecutive service period is less than a year may not be allowed to claim benefits, and the reserves shall revert to the employer;
4. Upon termination of the contract, the reserves shall be paid to the pension holders:Provided that reserves for pension holders whose consecutive service period is less than a year shall revert to the employer.

Article 30 (Provision of Operational Management Services)

(1) Each retirement pension trustee shall fulfill his/her duty of due care as a good manager.

(2) Each retirement pension trustee shall suggest methods of operating reserves meeting the following requirements:

1. Information on the operating methods shall be readily obtainable and understandable;

2. It shall be easy to switch among the operating methods;

3. The methods of and procedures for evaluating the performance of operation of reserve shall be transparent;

4. In cases of defined contribution plans and individual retirement pension plans, at least one operating method guaranteeing the payment of principal and interest as prescribed by Presidential Decree shall be included;

5. They shall be in line with the operating methods and standards prescribed by Presidential Decree, such as diversified investment, to ensure the mid- and long-term stable operation of the reserves.

Enforcement Ordinance

Article 25 (Management Method Guaranteeing Principal and Pay Interest, of Reserves Under Defined Contribution Retirement Pension Plans and Individual Retirement Pension Plans)

(1) “Management methods prescribed by the Presidential Decree, which guarantee principal and pay interest” in Article 30 (2) 4 of the Act means the following management methods:
1. The following management methods offered by a financial institution not falling short of the standards determined and announced by the Financial Services Commission with regard to credit rating, etc.:
A. Deposits and saving deposits handled by a bank under Article 2 (1) 2 of the Banking Act;
B. Insurance contracts handled by an insurance company under subparagraph 6 of Article 2 of the Insurance Business Act and guaranteeing the payment of principal and pay interest, such as by guaranteeing a minimum interest rate on reserves;
C. Contracts for which a financial investment business under Article 8 of the Capital Markets and Financial Investment Services Act, guaranteeing the payment of principal and pay interest, and contracts purchasing under a repurchase agreement under subparagraph 3 B of Article 85 of the Enforcement Decree of the same Act.
2. Deposits handled by a postal service office under the Postal Savings and Insurance Act;
3. Currency stabilization bonds of the Bank of Korea under Article 69 (1) of the Bank of Korea Act, state bonds and bonds for which the government guarantees the redemption of principal and interest;
4. Other management methods guaranteeing the redemption of principal and pay interest, determined and announced by the Financial Services Commission.
(2) If the Financial Services Commission intends to determine or change the standards referred to in paragraph (1) 1 and management methods specified in subparagraph 4, it shall consult with the Minister of Employment and Labor.

Enforcement Ordinance

Article 26 (Management Methods and Standards to Ensure Stable Management of Reserves)

(1) “Management methods and standards prescribed by the Presidential Decree, such as diversified investment” in Article 30 (2) 5 of the Act means the following management methods and standards:
1. Management methods- management methods falling under any of the following items:
A. Deposits and saving deposits handled by a bank under Article 2 (1) 2 of the Banking Act;
B. Among insurance contracts handled by an insurance company under subparagraph 6 of Article 2 of the Insurance Business Act, those which allow a return of reserves and are announced by the Financial Services Commission;
C. Stocks under Article 4 of the Capital Markets and Financial Investment Services Act, announced by the Financial Services Commission. In such cases, the stocks (excluding collective investment stocks under the Capital Markets and Financial Investment Services Act) shall not be those issued by the employer or anyone with interest, who is determined and announced by the Financial Services Commission;
D. Deposits handled by a postal service office under the Postal Savings and Insurance Act;
E. Other management methods necessary for the stable mid- and long-term management of reserves and determined and announced by the Financial Services Commission.
2. Standards- the standards listed shall be followed:
A. Except for the management method guaranteeing payment of principal and interest under each subparagraph of Article 25 (1) and the management method whose investment risk is lowered by diversified investment in securities, etc., which are publicly notified by the Financial Services Commission, among the management methods under the items of subparagraph 1, operation shall be implemented within the total investment limits prescribed by Ordinance of the Ministry of Employment and Labor. In such cases, the Financial Services Commission may determine and publicly notify different detailed investment limits for each retirement pension plan within the total investment limits prescribed by Ordinance of the Ministry of Employment and Labor;
B. In cases of a defined contribution retirement pension plan and an individual retirement pension plan, investments in the high-risk assets prescribed by the Ordinance of the Ministry of Employment and Labor shall be made, only in accordance with the method of collective investment under Article 6 (5) of the Capital Markets and Financial Investment Services Act. In such cases, the uplimit of the total investment in such high-risk assets shall not exceed the standard prescribed by the Ordinance of the Ministry of Employment and Labor;
B. Investments in the management methods specified in each item of subparagraph 1 shall be made within the investment limit determined and announced by the Financial Services Commission for each type of high-risk assets and within the limit of the total investment in those assets.
(2) If the Financial Services Commission announces the matters referred to in paragraph (1) 1 B, C and E and subparagraph 2 A, it shall consult with the Minister of Employment and Labor in advance.

Article 31 (Entrustment of Solicitation Services)

(1) A retirement pension trustee may entrust any person who satisfies all the following requirements (hereinafter referred to as "solicitor for retirement pension plans") with the services prescribed by Presidential Decree to establish retirement pension plans or solicit participants thereof (hereinafter referred to as "solicitation services"):

1. He/she shall not be a person registered with the Minister of Employment and Labor pursuant to paragraph (2);

2. He/she shall have professional knowledge and satisfy the requirements prescribed by Presidential Decree;

3. Where the registration was revoked under paragraph (6), at least three years shall have passed since the date the registration was revoked.

(2) Where a retirement pension trustee entrusts the solicitation services for retirement pension plans under paragraph (1), he/she shall register the entrusted person with the Minister of Employment and Labor. In such cases, the Minister of Employment and Labor may entrust such registration affairs to an agency prescribed by the Ministry of Employment and Labor, as prescribed by Presidential Decree.

(3) A person entrusted with solicitation services under paragraph (1) shall be prohibited from engaging in the solicitation services of retirement pension plans unless he/she is registered under paragraph (2).

(4) No retirement pension trustee shall entrust any person with solicitation services other than those registered under paragraph (2) as solicitors for retirement pension plans.

(5) Matters necessary for the application, methods and procedures for registration, and any other matters for registration under paragraph (2) shall be prescribed by the Minister of Employment and Labor.

(6) In any of the following cases, the Minister of Employment and Labor may revoke the registration of a solicitor of retirement pension plans registered under paragraph (2) or suspend his/her solicitation services within the limit of six months:

1. Where he/she fails to satisfy each of the requirements prescribed in paragraph (1);

2. Where he/she violates any of the matters to be observed by the entrusted person under each subparagraph of paragraph (7).

(7) Where services are entrusted under paragraph (1), the entrusted person shall comply with the following:

1. He/she shall not re-entrust another person with the entrusted services;

2. Matters prescribed by Presidential Decree as necessary for the reasonable operation of retirement pension plans, such as prohibition of solicitation activities based on false information.

(8) If a person entrusted with the solicitation services under paragraph (1) fails to comply with the matters to be observed under paragraph (7), the retirement pension trustee shall revoke the entrustment of solicitation services.

(9) A retirement pension trustee shall manage solicitors for retirement pension plans in good faith so that they observe Acts and subordinate statutes and cause no harm to the sound trade order in providing the solicitation services and establish standards for providing solicitation services for such purpose.

(10) Article 756 of the Civil Act shall apply mutatis mutandis where any solicitor for retirement pension plans causes any damage to an employer or a participant in providing solicitation services.

Enforcement Ordinance

Article 27 (Scope of Entrustment of Solicitation Business)

“Business prescribed by the Presidential Decree” in the part, besides the ones described in each subparagraph of Article 31 (1) of the Act, means the following business:
1. Business of explaining matters on a retirement pension plan and its operation to a person, who intends to set up or join a retirement pension plan (including persons who have established or joined a retirement pension plan);
2. Business of introducing or connecting an employer or a prospective pension holder to a retirement pension trustee;
3. Business of explaining, and providing information on the methods of managing reserves;
4. Business of conveying questions by employers or pension holders (including prospective pension holders) , as well as answers by a retirement pension trustee, etc.
5. Other matters necessary to solicit an employer to set up and an employee to join a retirement pension plan, determined by the Minister of Employment and Labor.

Enforcement Ordinance

Article 28 (Requirements for Retirement Pension Plan Solicitors)

(1) “Requirements prescribed by the Presidential Decree” in Article 31 (1) 2 of the Act mean the following requirements:
1. A retirement pension plan solicitor shall be a person who is not an employee of a retirement pension trustee, and a person who is entrusted with solicitation business under a written contract made with a retirement pension trustee;
2. A retirement pension plan solicitor shall be a person who falls under those described in any of the following subparagraphs, and shall have completed the training course determined by the Minister of Employment and Labor. In such cases, detailed matters concerning the training course and completion thereof are shown in Table 1:
A. An insurance solicitor or an individual insurance agency that is registered with the Financial Services Commission under Articles 84 and 87 of the Insurance Business Act and has at least one year of experience in the relevant field;
B. An investment solicitor who is registered with the Korea Financial Investment Association under Article 51 of the Capital Markets and Financial Investment Services Act and has at least one year of experience in the relevant field;
C. Other persons deemed by the Minister of Employment and Labor to have expertise in retirement pension plans.
(2) The training under paragraph (1) 2 shall be entrusted to an institution that has the manpower, facilities and equipment designated by the Minister of Employment and Labor, and necessary matters concerning the completion, etc. of the training course shall be determined by the Minister of Employment and Labor.
(3) A retirement pension trustee shall have a retirement pension plan solicitor (hereinafter referred to as “retirement pension plan solicitor”) registered under Article 31 (2) of the Act receive the refresher training specified in Table 2 every two years-within six months, beginning from the date fulfilling two years after the date of registration.

Enforcement Ordinance

Article 29 (Entrustment of Solicitor Registration Business)

(1) Pursuant to the latter part of Article 31 (2) of the Act, the Minister of Employment and Labor may select an institution from among those that have the manpower, facilities and equipment designated by the Minister of Employment and Labor and are designated by the Financial Services Commission according to the procedures determined by the Minister of Employment and Labor, and entrust it with registration of retirement pension plan solicitors.
(2) The period during which registration of solicitors may be entrusted under paragraph (1) may be determined by the Minister of Employment and Labor, but shall not exceed three years.

Enforcement Ordinance

Article 30 (Matters to be Observed by Retirement Pension Plan Solicitors)

(1) A retirement pension plan solicitor shall not engage in any of the following conduct pursuant to Article 31 (7) 2 of the Act:
1. Performing solicitation business using a name other than “retirement pension plan solicitor” or in the name of any other retirement pension plan solicitor;
2. Performing solicitation business based on false information, providing information different from facts or not providing important information;
3. Performing business beyond the scope of entrusted solicitation business under Article 27;
4. Making a contract for entrustment of solicitation business with two or more retirement pension trustees;
5. Using information, etc., learned while performing solicitation business for his/her own benefit or the benefit of a third person;
6. Making a contract on behalf of the retirement pension trustee that has entrusted the solicitation business or an employer, etc., who are due to join the plan;
7. Receiving money, securities and other things of property value from an employer or a pension holder who has set up or intends to set up a retirement pension plan;
8. Offering or promising to offer special benefits under Article 33 (4) 2 of the Act to an employer or a pension holder who has set up or intends to set up a retirement pension plan, or any interested person;
9. Transmitting instructions on the management methods of reserves from employers or pension holders
10. Other conduct determined and announced by the Minister of Employment and Labor in order to protect employers and pension holders and maintain sound order in transactions.
(2) Pursuant to Article 31 (7) 2 of the Act, a retirement pension plan solicitor shall, when performing solicitation business, display in his/her office a sign or certificate indicating the fact that he/she is entrusted with solicitation business or produce it to the other party, and inform the employer, etc., of matters necessary to protect employers and pension holders and maintain sound order in transactions and determined and announced by the Minister of Employment and Labor, such as the name of the retirement pension trustee entrusting the solicitation business.
(3) The Financial Services Commission shall determine and announce detailed standards relating to each subparagraph of paragraph (1) and paragraph (2) after consultation with the Minister of Employment and Labor.

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

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