외국자본의 국내투자와 국가 핵심기술의 법적 보호방안

Abstract

This paper examines domestic investment regulations for foreign capital that restrict investment from foreign countries. While strengthening regulations on investment from overseas will reduce national security risks, there are also concerns that domestic investment will decrease. Investment from overseas is important to revitalize the economy, and developed countries are struggling to balance national security and the economy. Regulation of domestic investment by foreign capital is the government’s response to restrict domestic investment by foreigners or foreign companies. Korean companies that want to attract foreign investment must be well aware of the government’s policy to regulate domestic investment of foreign capital. In addition, Korean companies wishing to invest overseas must be aware of the other country’s government’s policy to regulate domestic investment of foreign capital. Since foreign capital’s domestic investment regulations are directly involved in the country’s security and economic policies, companies considering global expansion need to clearly check this fact from the business planning stage. The reason behind the tightening of investment regulations from overseas in developed countries is the concern that national security will be threatened by leakage of protection technology due to the purchase of major industries by Chinese companies. In addition, while there is no progress in China’s market opening or state-owned enterprise reform, it is believed that the free and fair market is being distorted as Chinese companies that receive large subsidies from the government are investing overseas. In this paper, I first look at the outline of domestic investment regulations for foreign capital. In addition, regulations regarding foreign capital in the United States, China, and Japan include (i) regulated and prohibited industries, (ii) investment ratio, (iii) land ownership by foreign companies, (iv) regulations on capital, and (v) others. The reason for attempting this discussion is to protect our companies from investment by impure foreign capital that seeks to steal key technologies from Korean companies. Recently, the strengthening of investment regulations in economic security has been centered around discussions on strengthening domestic investment by foreign capital. In particular, the final rules for strengthening CFIUS (announced in January 2020) under the Foreign Investment Risk Review Modernization Act (FIRRMA) established in the United States in August 2018 had a significant impact on subsequent movements to strengthen domestic investment regulations in allies. Meanwhile, regarding foreign investment regulations, in the United States, President Biden signed an Executive Order on foreign investment regulations in August 2023, and the so-called “Small Yard High Fence”, which states that strict regulatory measures will be taken only in areas with security threats. In accordance with the policy of “high fence,” the draft rules are being developed through public-private dialogue centered on the U.S. Treasury. However, with the indiscriminate inflow of Chinese capital targeting the key technology of Korean companies, Korea is taking a too naive legislative and policy stance. Legislative response must be strengthened at any time.