Ask Korea Law

Published by Chung & Partners


Leave a comment

Classifying a Foreign Incorporated Corporation as a Domestic Corporation for Korean Tax Purposes: “Actual Business Management Place” Rule

그림 67When a foreign incorporated company does a business in Korea, it is very fundamental to determine whether the company is a domestic or a foreign corporation for Korean tax purposes.  A major difference in tax liability is that, in principle, a foreign corporation is liable for taxes only on the incomes generated in Korea rather than a worldwide income.

In this regard, the Corporate Tax Ac of Korea(“CTA”) defines a “domestic corporation” as a corporation with its headquarter, main office, or actual business management place located in Korea, and a “foreign corporation” as an organization which has its head office or principal place of business in a foreign country.  What makes distinguishing domestic corporation for a foreign corporation under CTA difficult and challenging is the meaning and application of the term of “actual business management place” set forth in CTA.  For example, in a case decided by the Supreme Court of South Korea in 2016, a Singapore incorporated company had challenged the Korean tax authority’s decision that its actual business management place was in Korea.

The Singapore company had a wide variety of international business portfolio and among them was a trading foreign issued corporate bonds including a Korean corporate bond.  The Korean tax authority decided that the company’s actual business management had taken place in Korea after finding the facts that the company had a liaison office in Korea, one of the directors was residing in Korea and financial documents relating to the Korean business was stored and managed in Korea.  And this Continue reading


Leave a comment

Chung & Partners Successfully Advised Korean Real Estate Developer on Project Financing For Acquisition and Development of Commercial Building in the amount of USD 140 Million

In September 2012, Chung & Partners successfully advised a Korean real estate development company(the “Company”) in connection with a project financing for the land acquisition, development and construction of commercial building to be built in downtown Seoul.  The financing package enabled our client to receive funds in the amount equivalent to USD 140,000,000.  Thanks to this transaction, the Company has successfully launched the project.

Our attorney Mr. Wonil Chung acted as counsel for the Company and provided legal advice on every aspect of the deal from structuring to documentation.


Leave a comment

Provisional Attachment of Assets under Korean Law – How to Secure Your Monetary Claim in Korea

Let’s assume a creditor has a monetary claim against a debtor in Korea but the debtor refuses to pay it.  The creditor would proceed to file a lawsuit to get a judgment to collect his claim.  Unfortunately, however, the chances are that, knowing the complaint was filed, the debtor would try to conceal or transfer his assets to evade from the judgment to be made later.  This shows why provisional attachment is highly required to secure the judgment to be obtained.

Provisional attachment is a judicial measure available to anyone who has a monetary claim to lock down certain assets to keep the debtor from selling or giving them away until the court issues a judgment on the merit. The creditor can, and usually does, seek a provisional remedy before she files a complaint on the merit.  So, this is a very powerful weapon for the creditor.  For example, as many Korean creditors do, if the creditor succeeds in putting a provisional attachment on the debtor’s bank account, the debtor would not be able to use the money and could face several penalties regarding its banking/financing transactions with the bank.  This could heavily deteriorate the ability for a small com­pany to con­duct business, which makes the debtor Continue reading


Leave a comment

HSBC, “No More Bid for Korean Bank”

It is reported that Mr. Matthew Deakin, the president of the HSBC Korea, said on last Wednesday that HSBC Holdings Plc had no plan to acquire a local Korean bank for now.  Last year, HSBC walked away from the deal with the Lone Star, a U.S. private equity fund, which provided HSBC the right to buy 51 percent stake of Korea Exchange Bank due to the global financial crisis and continued legal disputes surrounding the 2003 purchase of the bank by Lone Star Funds. (Here is a related previous post)

Things have changed.  The Seoul Central District Court in last November ruled the purchase legal, and as the financial markets are now stabilizing.  But Mr. Deakin, at the press conference which took place for the purpose of introducing the bank’s new Emerging Markets Index, said “right now, we have no interest in any acquisition of Korean banks”.

Here is a related news article.


Leave a comment

Legal Updates – Fund Buyers Keep Filing Lawsuits against Fund-Sellers Alleging So-called “Irresponsible Sale”

Recently there are so many lawsuits being filed against domestic and foreign banks in Korea with regard to the bank’s irresponsible fund sale.  The Korean fund buyers are alleging the losses in the funds which are still on-going were caused by the fund-sellers’ not informing sufficient information on the risk and possibilities of losses when they put the money to the funds.

As a matter of law, Korean court has ruled that the banks have legal duties to inform the customer sufficiently of the structure of the investment such as fund or option transaction and the risk of possible losses when they solicit the customers for investments.  If they neglect that obligation, it constitutes a breach of contract and Continue reading


Leave a comment

FSS Signed MOU on Government Guarantees of Banks’ External Debt with 18 Domestic Banks

It was reported that Financial Supervisory Service(FSS) of South Korea had signed a MOU on Government Guarantees of Banks’ External Debt with 18 domestic banks on November 14.  The MOU was comprised of Part 1 on “Government guarantees of banks’ external debt” and Part 2 on “Extending support to the real economy and management rationalization”.  SC First Bank Korea and Citibank Korea signed only Part 2 of the MOU with the FSS.

The MOU is to increase credit lines by improving foreign-currency liquidity, move forward with the disposition of non-core foreign-denominated assets, and diversify sources of banks’ foreign liquidity. Contingency plans were also included to prevent risk to the guarantee.

To provide relief to holders of household debt, the maturity date and the interest-only and payment-option will be extended. Borrowers wanting to convert their variable interest rate loans to fixed will have their e Continue reading


2 Comments

U.S. Private Equity Fund, Lone Star, Sent a Letter to Korean Government Notifying Potential Lawsuit for Damages by KEB Sale Deferment?

Last week, Korean government announced that it would initiate reviewing process for the approval of KEB sale soon.  Interestingly enough, today it was reported also that before the government’s announcement, Lone Star Fund had sent an official letter to Korean government regarding government’s approval issue on the long-waited sale of Korea Exchange Bank(KEB) from Lone Star Fund to HSBC bank.  Lone Star Fund and HSBC had entered into the stock purchase agreement and the deadline of the agreement is coming on the end of this July.  It was reported that Lone Star Fund stated in that problematic letter that if the Korean government kept delaying the approval, the fund would file a lawsuit domestically and internationally against Korean government for the compensation of damages by the sale’s deferment(here is a news article).

Well, someone, especially western people, can say that there would be no problem in sending a letter to the other party noticing potential legal disputes.  However, it is quite unusual in Korean legal culture that a private enterprise warns the government stating otherwise it would sue the government.  Of course, it is legally acceptable and in some cases a statutory right of a private enterprise, to file a lawsuit against the government, but culturally it is not common to take this kind of open and public action to press the government hard in Korea.

By the way, as a matter of law, the fund would be permitted to file a lawsuit to a Korean court, however the chances are that the fund would not win the case.  Under Korean law, in order for the fund to win the case, the fund must prove there have been an unlawful act of Korean government in delaying the approval.  But, the approval itself is a right, not a obligation, of the government provided by the law and there have been lawsuits affecting the validity of the ownership of KEB by the fund, which have made Korean government hold the approval procedures Continue reading