EMPLOYEE RETIREMENT BENEFIT SECURITY ACT [See entire ACT]

CHAPTER Ⅷ Supplementary Provisions

Article 38 (Measures to be Taken when Retirement Pension Plan is Abolished or Suspended)

(1) In cases of abolition of a retirement pension plan or suspension of its operation, the retirement allowance system under Article 8 (1) shall be applied to the period after the abolition or during the period of the suspension.

(2) If a retirement pension plan is abolished, the employer shall take measures prescribed by Presidential Decree as necessary to pay benefits from reserves, including payment of the contributions in arrears without delay.

(3) If a retirement pension plan is suspended due to the grounds prescribed in Article 35 (2), etc., the employer and the retirement pension trustee shall continue to perform the basic duties prescribed by Presidential Decree, such as duties necessary for the operation of reserves.

(4) Where the benefits are to be paid to each participant due to the abolition of a retirement pension plan, they shall be paid by the employer and the retirement pension trustee in the way of transfer to the account of the individual retirement pension plan designated by each participant: Provided, That Article 17 (5) shall apply mutatis mutandis where any participant fails to designate an account of an individual retirement pension plan.

(5) If a participant is paid benefits under paragraph (4), he/she shall be deemed paid benefits by the interim settlement as prescribed in Article 8 (2). In such cases, calculation of the period subject to the interim settlement and other necessary matters shall be prescribed by Presidential Decree.

Enforcement Ordinance

Article 38 (Measures to be Taken by Employer in Case of Abolition of Retirement Pension Plan)

“Measures prescribed by the Presidential Decree” in Article 38 (2) of the Act means the following measures:
1. The employer shall submit an abolition report containing the following matters to the Minister of Employment and Labor within one month after the date of abolishing the retirement pension plan:
A. A consent of the workers’ representative to the abolition of the retirement pension plan under Article(4) 3;
B. Reasons for the abolition of the retirement pension plan and the date of abolition;
C. Reserves and unpaid contributions of the relevant business calculated based on the date of abolition of the retirement pension plan (referring to a reserve shortfall compared to the amount obtained under Article 16 (1) 2 of the Act in cases of a defined benefit retirement pension plan, and an amount including interest on delayed payment of contributions in cases of a defined contribution retirement pension plan);
D. Measures to resolve unpaid contributions, such as the expected date of payment thereof (limited to a defined contribution retirement pension plan).
2. The employer shall notify the pension holders of the following matters:
A. Matters specified in subparagraph 1 C;
B. Benefit statements and payment procedures;
C. A period subject to the interim settlement under Article 40;
D. Measures to resolve unpaid contributions, such as the expected date of payment thereof (limited to a defined contribution retirement pension plan).
3. The employer shall pay unpaid contributions within 14 days after the date of abolishing the retirement pension plan and have the retirement pension trustee pay benefits.

Enforcement Ordinance

Article 39 (Basic Services to be Maintained in Case of Suspension of Retirement Pension Plan)

“Basic services prescribed by the Presidential Decree” in Article 38 (3) of the Act means services classified as follows:
1. The following services in cases of an employer:
A. Publicly notifying the pension holders of reasons for the suspension, the date of suspension, a resumption schedule, measures to handle the suspension period, such as a plan to pay unpaid contributions if there are unpaid contributions, and so on;
B. Providing education for pension holders under the former part of Article 32 (2) of the Act;
C. Measures necessary to carry out the services prescribed by Acts and subordinate statutes, etc., in regard to claims for payment of benefits, management of reserves, etc., even in the event of suspension of the operation of a retirement pension plan;
D. Other services determined by the Minister of Employment and Labor in order to maintain the continuity of a retirement pension plan and protect pension holders.
2. The following services in cases of a retirement pension trustee:
A. Paying benefits upon retirement, etc. of pension holders;
B. Providing education for pension holders entrusted under the latter part of Article 32 (2) of the Act;
C. Services prescribed by Acts and subordinate statutes and the contracts on operational management services and asset management services in regard to payment of benefits, management of reserves, notification of management status, etc.;
D. Other services determined by the Minister of Employment and Labor in order to maintain the continuity of a retirement pension plan and protect pension holders.

Enforcement Ordinance

Article 40 (Period Subject to Interim Settlement in Case of Abolition of Retirement Pension Plan)

If benefits are deemed to be paid in the interim settlement under Article 38 (4) and (5) of the Act, the amount of interim payments (limited to a defined benefit retirement pension plan) and the period subject to the interim settlement are classified as follows:
1. In cases of a defined benefit retirement pension plan:the amount of interim payments shall be calculated by proportionally dividing the amount of reserves accumulated by each business among the pension holders in consideration of their consecutive service periods, average wages and the benefit levels under subparagraph 4 of Article 13 of the Act, and the period subject to the interim settlement shall be calculated based on the amount of interim payments;
2. In cases of a defined contribution retirement pension plan and an individual retirement pension plan under Article 25 (1) of the Act:the period subject to the interim settlement shall be from the day each pension holder joined the retirement pension plan until the last day of a period corresponding to the contributions paid by the employer.

Article 39 (Business Cooperation)

If the Minister of Employment and Labor deems it necessary to implement this Act, he/she may request related agencies, including the Financial Services Commission, to submit materials. In such cases, the agencies requested to submit materials shall not refuse this request unless they have any justifiable ground.

Article 40 (Reporting and Investigation)

(1) The Minister of Employment and Labor may ask employers and retirement pension trustees to report the implementation status, etc. of their retirement pension plans or to submit related documents or to require relevant persons toappear in person within the extent necessary to implement this Act.

(2) If the Minister of Employment and Labor deems it necessary to implement this Act, he/she may authorize his/her officials to access a workplace implementing a retirement pension plan or a workplace of the relevant retirement pension trustee and ask questions to persons concerned, including the employer and the retirement pension trustee, or investigate documents, such as accounting books.

(3) A public official who intends to have access to a workplace or a workplace of the relevant retirement pension trustee and ask a question of the person concerned or inspect books and other documents shall carry a certificate indicating his/her authority and produce it to the related persons.

Article 41 (Hearings)

The Minister of Employment and Labor shall hold a hearing if he/she intends to revoke a registration under Article 27 (1) or issue an order for transfer under Article 36 (2).

Article 42 (Entrustment and Delegation of Authority)

(1) The authority of the Minister of Employment and Labor under this Act may partially be entrusted to the Financial Services Commission or delegated to the head of a regional employment and labor office, as prescribed by Presidential Decree.

(2) The authority of the Financial Services Commission under this Act may partially be entrusted to the Governor of the Financial Supervisory Service, as prescribed by Presidential Decree.

Enforcement Ordinance

Article 41 (Entrustment and Delegation of Authority)

(1) The Minister of Employment and Labor shall entrust the following authority to the Financial Services Commission pursuant to Article 42 (1) of the Act:
1. Registration of a retirement pension trustee under Article 26 of the Act;
2. Cancellation of registration of a retirement pension trustee and issuance of an order for transfer of services under Article 27 of the Act;
3. Cancellation of registration of a retirement pension plan solicitor and suspension of business under Article 31 (6) of the Act;
4. Issuance of a corrective order and an order for transfer of services under Article 36 (1) and (2) of the Act (including requests for reporting and submission of documents under Article 40 of the Act to the extent necessary for the exercise of the relevant authority);
5. Hearings under Article 41 of the Act;
6. Imposition and collection of fines for negligence under Article 48 of the Act (limited to imposition and collection of fines for negligence against retirement pension trustees).
(2) The Financial Services Commission may determine and announce detailed standards necessary for performing the duties specified in paragraph (1) 1 though 4. In such cases, it shall consult with the Minister of Employment and Labor in advance.
(3) If the Financial Services Commission cancels registration of a retirement pension plan solicitor and suspends his/her business pursuant to paragraph (1) 3, it shall inform the Minister of Employment and Labor of the details and grounds.
(4) The Minister of Employment and Labor shall entrust the following authority to the Governor of the Financial Supervisory Service pursuant to Article 42 (1) of the Act:
1. Approval of a standard contract under subparagraph 2 of Article 23 of the Act;
2. Check for violations of the matters to be observed by retirement pension plan solicitors under Article 31 (7) of the Act.
(5) The Governor of the Financial Supervisory Service shall, if a retirement pension plan solicitor is found to have violated the matters to be observed as a result of check under subparagraph (4) 2, inform the Financial Services Commission of the details of such violation.
(6) The Minister of Employment and Labor may, if deemed necessary in order to protect employers and pension holders and maintain sound order in transactions, request the Governor of the Financial Supervisory Service to make a check under paragraph (4) 2, and after making the check, the Governor of the Financial Supervisory Service shall submit the results in writing to the Minister of Employment and Labor.
(7) The Minister of Employment and Labor shall delegate the following authority to the heads of local employment and labor offices pursuant to Article 42 (1) of the Act:
1. Receipt of retirement pension rules reported under Articles 13 and 19 of the Act;
2. Issuance of a corrective order and an order for suspension of operation of a retirement pension plan under Article 35 of the Act;
3. Request for reporting, submission of documents or physical presence under Article 40 (1) of the Act and questioning and investigation under paragraph (2) of the same Article;
4. Imposition and collection of fines for negligence under Article 48 of the Act (limited to imposition and collection of fines for negligence against employers);
5. Receipt of a statement of reasons for selection or change of a retirement pension trustee under the latter part of subparagraph 2 of Article 31;
6. Receipt of a report on abolition of a retirement pension plan under subparagraph 1 of Article 38.
(8) The Financial Services Commission shall entrust authority over the measures specified in Article 36 (3) 1 of the Act (excluding demands for dismissal of an employee) to the Governor of the Financial Supervisory Service pursuant to Article 42 (2) of the Act.

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

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