行政诉讼
[Tax] Case Leading to the First Supreme Court Decision Holding that Even a Foreign Corporation with Personnel and Physical Facilities May Be Deemed Merely a "Conduit"
1. Case Overview
a. Party Represented by Barun Law
Head of XX District Tax Office (Defendant)
b. Background
The plaintiff, a Korean subsidiary of multinational Group A, paid dividends totaling approximately KRW 251.2 billion (the "Dividends") to "A Europe," a UK corporation, from 2014 to 2017. Applying Article 10(2)(a) of the Convention between the Government of the Republic of Korea and the Government of the United Kingdom for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains (the "Korea–UK Tax Treaty"), the plaintiff withheld corporate tax at a reduced rate of 5% on the dividend income. The tax authority (defendant), however, excluded the application of the Korea–UK Tax Treaty and imposed a 20% withholding tax rate under the Corporate Tax Act of Korea, issuing a corrective assessment and notice to the plaintiff for corporate (withholding) tax totaling approximately KRW 42.7 billion for the years 2014 through 2017. The plaintiff filed an appeal with the Tax Tribunal. Following the Tribunal's decision to re-examine the entity to which the dividend income was attributable, the defendant determined on October 18, 2020 that the beneficial owner of the Dividends was a U.S. corporation within Group A. The defendant then partially reduced the original assessment, applying a 10% reduced rate under Article 12(2)(b) of the Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income. The plaintiff argued that "A Europe," the UK corporation, was the beneficial owner of the Dividends because it had the right to use and enjoy the income without any legal or contractual obligation to transfer it to another party. The plaintiff further asserted that there was no discrepancy between form and substance nor any tax avoidance purpose, and therefore the 5% reduced rate under the Korea–UK Tax Treaty should apply. Based on this, the plaintiff filed the present lawsuit against the defendant.
c. Proceedings
The Supreme Court dismissed the plaintiff's appeal without further review, thereby affirming the lower court's judgment that upheld the defendant's disposition.
2. Decision
Supreme Court Decision 2025Du35524 dated March 12, 2026
3. Grounds for the Decision
The Supreme Court upheld the lower court's reasoning, finding that although the UK corporation formally possessed personnel and physical facilities and appeared to conduct actual business activities, it bore contractual obligations to transfer the Dividends to a Danish or U.S. entity. Accordingly, it could not be regarded as the beneficial owner or the substantive recipient under Article 14(1) of the Framework Act on National Taxes (substance-over-form principle), and was merely a "conduit." In particular, the Court relied on factors such as the structure under which the UK corporation remitted the same amount to its parent company immediately after receiving the dividends, and internal documents of the plaintiff confirming that the corporate structure had been reorganized for tax avoidance purposes.
4. Our Arguments and Role
We persuasively argued that the mere existence of personnel and physical substance in a UK corporation cannot serve as an absolute criterion for determining whether it qualifies as the "beneficial owner" or the "substantive recipient" of dividend income. By closely analyzing and presenting the reasoning and factual circumstances of prior Supreme Court precedents, we emphasized that the absence of substance in an intermediary company had only been considered one factor among others, and not an absolute requirement for denying beneficial ownership status. We further argued that, given the nature of multinational enterprises, it is often unrealistic to expect income transfers from subsidiaries to controlling parent companies to be governed by formal articles of incorporation or explicit contracts. Therefore, where there exist factual circumstances demonstrating that: (i) the controlling company exercises direction and supervision such that income generated by the subsidiary is transferred to the parent company, and (ii) the subsidiary lacks genuine autonomy in its decision-making due to the parent company's de facto influence, it is reasonable to conclude that the subsidiary bears a contractual obligation to transfer dividends, interest, or royalties to the parent (or another affiliate), even in the absence of an explicit written agreement.
5. Significance of the Decision
This case is significant in that it expands beyond prior precedents that treated only so-called "paper companies" lacking substance as conduits. It represents the first Supreme Court decision recognizing that even a corporation with a certain level of personnel and physical substance may, based on the totality of circumstances, be deemed a conduit with respect to the attribution of dividend income.
□ Attorneys in charge: Jung Jae-hee, Lee Ji-min
2026. 04. 30
控告及应对调查
[Anti-Corruption, Financial & Economic Crimes] Case Securing a Full "No Charges" Decision at the Prosecutorial Stage in a Matter Referred on Charges of Obstruction of Business, Joint Coercion, and Extortion Following a Complaint by a Co-Developer in an Urban Development Project
1. Case Overview
a. Party Represented by Barun Law
Representative of a company that jointly carried out an urban development project with the complainant
b. Background
Since around 2019, the clients had been conducting an urban development project together with the complainant. During negotiations for a project financing (PF) loan in 2023, the clients filed multiple applications for provisional injunctions and, through shareholder negotiations, entered into an agreement to acquire the complainant's shares, followed by procedures for implementation of the agreement.
c. Case Details
The complainant suddenly filed a criminal complaint, alleging that: the clients' applications for injunctions constituted obstruction of business; the consultations between the parties during the bridge loan process and the execution of the final shareholders' agreement constituted joint coercion under the Act on Punishment of Violence and the performance of the agreement constituted extortion under the Act on the Aggravated Punishment of Specific Economic Crimes. During the investigation by the Prosecutors' Office Investigation Division, some allegations that were clearly unfounded were withdrawn. However, certain charges—obstruction of business, joint coercion, and extortion—were referred to the prosecution with a recommendation for indictment.
2. Our Arguments and Role
After thoroughly analyzing the facts, we repeatedly submitted arguments to the prosecution, asserting that the applications for injunctions were legitimate exercises of rights based on legal advice and therefore did not meet the elements of obstruction of business. We further demonstrated the relationship between the complainant and the clients, the fact that the share purchase agreement was concluded as a result of negotiations involving the lending syndicate and construction company representatives present at the time, and the fact that the agreement had been reviewed by counsel on both sides, and that all supported the conclusion that neither joint coercion nor extortion could be established. The prosecution conducted multiple supplementary investigations, including witness examinations, in an effort to ascertain the substantive truth.
3. Significance of the Decision
The prosecution ultimately accepted our arguments and concluded that the clients' civil actions could not constitute obstruction of business, and that the execution and performance of the shareholders' agreement did not amount to joint coercion or extortion. Accordingly, all charges were dismissed with a finding of "no suspicion." As a result, the clients were able to avoid unjust indictment and continue focusing on their urban development project.
□ Attorneys in charge: Choi Jae-ho, Cho Jae-bin, Lee Kyu-won
2026. 04. 30
Anti-Corruption and Financial Economic Crimes
[Anti-Corruption, Financial & Economic Crimes] Case in Which, Despite the Suspect's Prior Conviction for Bribery, Barun Law Reversed the Police's Referral Decision and Secured a "No Charges" Disposition at the Prosecutorial Investigation Stage
1. Case Overview
a. Party Represented by Barun Law
CEO of a construction company referred to the prosecution on suspicion of offering a bribe
b. Background
The client, a CEO of a construction company primarily engaged in government procurement projects, learned that senior public official Mr. A who had maintained a long-standing personal relationship with the client was planning a trip with colleagues to commemorate his retirement. Around October 2024, the client delivered KRW 3 million through public official Mr. B, a subordinate of Mr. A in official duties, under the pretext of sponsoring travel expenses. In July 2025, the client also sent agricultural products to Mr. B as a holiday gift. The client was subsequently investigated by the police on suspicion of bribery in connection with a public official's duties and was referred to the prosecution with a recommendation for indictment.
c. Outcome
We were retained at the prosecutorial investigation stage and presented an active defense. The prosecution overturned the police's referral decision and issued a non-prosecution ("no suspicion") disposition on all charges against the client.
2. Our Arguments and Role
The client had supported the travel expenses out of genuine intent to celebrate the retirement of Mr. A, a long-time acquaintance. However, because the client had maintained ongoing communication with Mr. B in connection with bidding for government construction projects overseen by him, the police concluded that the client had provided the money as a bribe in exchange for business convenience and referred the case for prosecution. The situation was particularly unfavorable, as the client had previously been convicted of bribery in 2019 and received a suspended sentence, making indictment and potential imprisonment highly likely. Nevertheless, we submitted two detailed written opinions and conducted oral advocacy with the lead prosecutor, arguing that the client's prior conviction involved circumstances in which a public official persistently demanded money, and the client, fearing business disadvantages, passively provided funds under quasi-coercion. In contrast, the present case involved voluntary support motivated solely by personal friendship, and therefore could not be regarded as a repetition of similar criminal conduct. At the time the KRW 3 million was delivered, there were no pending issues related to projects overseen by Mr. B, and the client had not received any business-related benefits from him. Under the Local Contracts Act, the relevant project could not have been awarded through a private contract; thus, the police's conclusion that the client demanded exclusive award of the project in exchange for the payment was inconsistent with applicable laws and the factual circumstances. Further, considering the overall scale of the project, the KRW 3 million and the agricultural products were nominal in value and could not reasonably be viewed as consideration for securing a government contract. Moreover, the KRW 3 million was used for a departmental dinner involving multiple participants, such that it would not even constitute a violation of the Improper Solicitation and Graft Act.
3. Outcome and Significance
The prosecution accepted all of our arguments and issued a non-prosecution ("no suspicion") decision on all charges, further concluding that the client's conduct did not violate the Improper Solicitation and Graft Act. In investigative practice, the elements of "relation to official duties" and "quid pro quo" in bribery cases are broadly recognized regardless of whether a specific solicitation exists, and claims that transferred benefits were merely customary or based on personal relationships are rarely accepted. Moreover, given the client's prior conviction for a similar offense, the likelihood of such arguments being accepted was particularly low. Despite these challenges, we thoroughly analyzed all relevant aspects, including the nature of the public official's duties, the circumstances and timing of the transfer, and the type and amount of the benefit, and persuasively demonstrated that neither "relation to official duties" nor "quid pro quo" could be established. As a result, the client avoided unjust criminal liability. This case underscores that, in order to negate the elements of bribery at the investigation stage, it is essential to conduct a meticulous review of all factual circumstances, including the official's duties, the context and timing of benefit transfer, and the nature and value of the benefit, combined with proactive and strategic advocacy before investigative authorities. It is expected to serve as an important precedent in similar cases.
□ Attorneys in charge: Kim Young-oh, Kim Yong-hwan
2026. 04. 30
控告及应对调查
[General Criminal Litigation & Investigation Response] Case in Which Barun Law Secured Non-Prosecution and Reversal on Civil Appeal Through Comprehensive Fact-Finding Across Civil and Criminal Proceedings in a Multi-Billion-Won Fraud, Embezzlement, and Breach of Trust Case
1. Case Overview
The client, a former certified public accountant who served as CEO of the complainant company, became embroiled in a dispute with the de facto controlling shareholder and was subsequently subject to large-scale criminal complaints alleging: • Fraud and breach of trust: Allegedly deceiving the company into purchasing worthless used methanol refining equipment, resulting in a loss of KRW 430 million • Occupational embezzlement: Unauthorized removal of approximately 20 items of factory equipment (worth approximately KRW 165 million) • Occupational embezzlement: Misappropriation of approximately KRW 1.675 billion under the guise of advance payments for raw materials by diverting funds to a personally operated company The client faced a highly unfavorable situation, as the complainant's claims had already been largely upheld in the first-instance civil litigation, and the total claimed amount exceeded KRW 2.2 billion, creating a high risk of custodial investigation.
2. Key Issues
• Substantive value and delivery of used equipment: Whether the supplied equipment constituted worthless scrap metal or functional assets with contractual value capable of being used in actual operations • Verification of removed equipment list: Identifying items that were not actually removed, and reassessing the quantity and value of removed equipment to refute the factual basis of embezzlement allegations • Approval by de facto controlling shareholder and legitimacy of actions: Whether the equipment disposal and removal were unilateral acts by the client or legitimate business decisions carried out under the direction and approval of the controlling shareholder • Nature of advance payment accounting: Whether the complex and extensive financial transactions constituted embezzlement or were part of ordinary settlement processes based on inter-company raw material supply agreements and offset practices
3. Our Arguments and Role
Following the unfavorable first-instance civil judgment, the investigating officer referred the case for prosecution based on that ruling. We, however, did not adopt a passive approach of awaiting the civil appellate outcome. Instead, it reexamined the facts from the ground up and actively challenged the errors underlying the first-instance civil judgment in both the criminal investigation and the civil appeal, presenting a highly structured defense: • Proof of substantive value and operability of equipment: The complainant argued that the equipment was "worthless scrap," but we presented testimony from engineers and technical data demonstrating that the equipment was a functional asset. This undermined the basis for fraud and breach of trust allegations. • Reconstruction of financial and accounting data: We conducted a comprehensive review of all advance payment transactions of several years, demonstrating that the allegedly embezzled funds were either offset against raw material supply payments or were "ultra-short-term financing" repaid within days, thereby establishing the absence of intent to unlawfully appropriate funds. • Establishing substantive truth through concrete evidence: We analyzed extensive materials, including years of KakaoTalk messages, emails, and reports between the client and the controlling shareholder, showing that all equipment removal and fund disbursements were carried out under specific instructions and approvals of management as part of legitimate business operations. • Leading witness examinations of key personnel: We persistently requested in-depth examination of key witnesses overlooked by investigators, including equipment manufacturers, plant managers, and former accounting team leaders. Their testimony provided decisive support that the equipment had been properly delivered and operated, and that the removal of equipment was justified. • Reversal of civil judgment and strategic use: These efforts ultimately led to a complete reversal of the first-instance civil judgment on appeal. We submitted the appellate judgment, which corrected the earlier errors, to the investigative authorities and used it as favorable evidence.
4. Outcome and Significance
Through meticulous fact-finding, we secured a full non-prosecution decision on criminal charges involving billions of won. By proactively demonstrating the substantive value of the equipment, we effectively rebutted the unfavorable first-instance civil judgment during the investigation stage and ultimately achieved a favorable appellate outcome in the civil case. This case exemplifies how thorough factual analysis from the early stages of an investigation can be decisive in determining the outcome of both civil and criminal disputes.
□ Attorneys in charge: Noh Man-kyeong, Kim Jin-suk, Baek Chang-won, Kim Hyeon-seong
2026. 04. 30
控告及应对调查
[General Criminal Litigation & Investigation Response] Case in Which a "No Charge" Disposition was Obtained at the Prosecution Stage by Refuting Intent Under the Act on the Guarantee of Employees' Retirement Benefits in a Petition Alleging Non-Payment of Retirement Benefits by the CEO of a Sales Agency Company
1. Overview of the Case
a. Party Represented by Barun Law
The CEO of a sales agency company who orally entered into a sales planning service agreement with the petitioner and had the petitioner perform the work.
b. Background
A freelance sales planner who had worked at several sales offices of the client for approximately three years filed a petition with the labor office, alleging that the client had failed to pay retirement benefits after the freelancer could no longer work due to the absence of further sales projects.
c. Details
The petitioner, who possessed high expertise and strong performance in sales planning, had continuously entered into oral service agreements with the client company for about three years and worked at multiple sales offices. Thereafter, the petitioner filed a complaint against the client alleging non-payment of retirement benefits, raising the key issue of whether the petitioner qualified as an "employee" under the Labor Standards Act.
2. Our Arguments and Role
After thoroughly examining the facts, we actively argued before the investigative authorities that the petitioner could not be deemed an "employee," emphasizing the following: the petitioner entered into oral service agreements without written contracts; separate contracts were concluded for each sales project, with compensation set differently each time; the level of remuneration was higher than that of the client's employees; the petitioner was not subject to the company's internal HR regulations or rules of employment; the petitioner paid business income tax instead of participating in the four major social insurance programs; and the petitioner retained autonomy over the detailed aspects of the work.
3. Significance of the Decision
The prosecution determined that it could not exclude the possibility that the client had reasonable grounds to dispute the existence and scope of any obligation to pay retirement benefits to the petitioner, based on our arguments, and thus found that intent with respect to the non-payment of retirement benefits could not be established. Following our defense, the prosecution promptly concluded that it was difficult to recognize "employee" status for freelance sales planners engaged by sales agency companies on a project-by-project basis. Had the prosecution recognized the petitioner as an employee, it would likely have had significant repercussions across the sales agency industry.
□ Attorneys in charge: Cho Jae-bin, Han Min-guk
2026. 04. 30
General Criminal Law
[General Criminal] Case in Which a Full "No Charges" Decision was Obtained in a Matter Directly Referred for Prosecution by the Board of Audit and Inspection on Allegations of Misuse of Subsidies
1. Overview of the Matter
The Board of Audit and Inspection directly referred S Logistics and its related personnel for prosecution on charges of occupational embezzlement and violation of the Subsidy Management Act, alleging that national subsidies received in connection with a joint newspaper distribution route project had been used for purposes other than those originally intended, and that settlement reports were falsely prepared in the process. The project expenses at issue were discussed as consisting of management costs and transportation costs. The Board of Audit and Inspection concluded that S Logistics had arbitrarily used the national subsidies, whose purposes were strictly limited, by excessively paying management costs to regional partner companies.
2. Our Defense and Role
First, for "use for purposes other than intended" under the Subsidy Management Act to be established, it must be recognized that the subsidy recipient used the funds in a manner different from the originally designated purpose. However, in this joint newspaper distribution project, subsidies were not initially disbursed by being itemized into specific categories such as management costs and transportation costs. Furthermore, given the structure of project execution, it was not possible to objectively determine how much of the funds paid to regional partners corresponded to management costs versus transportation costs. Accordingly, we argued that the mere use of the term "management costs" during discussions could not be equated with the legally defined "purpose" for purposes of determining misuse. Second, S Logistics possessed considerable discretion in allocating funds among detailed categories such as management and transportation costs during project execution, and the project administrator, H Foundation, did not specifically designate or instruct the amounts or methods of payment for individual categories. Therefore, we emphasized that it would be impermissible to characterize certain payments as "excessive" or "arbitrary" solely based on the scale of payments to certain categories after the fact. Third, we also argued that it was improper to construct criminal liability based on a post hoc classification of project expenses derived from materials prepared or organized during the audit process. In other words, even if such categorizations appeared in the materials, unless they could be regarded as externally established "purposes" of the subsidy at the outset of the project, those materials alone could not serve as the basis for determining misuse.
3. Outcome and Implications
The prosecution accepted our arguments and rendered a full "no charges" decision on all allegations of occupational embezzlement and violation of the Subsidy Management Act. This case involved a direct referral for prosecution following an audit by the Board of Audit and Inspection, and, given the nature of the joint newspaper distribution project, there were numerous stakeholders and a considerable amount of testimony and evidence unfavorable to S Logistics. Nevertheless, through a meticulous factual analysis of the project structure and fund execution methods, a sophisticated legal analysis of subsidy-related laws, and a demonstration of structural flaws in the referral logic, we successfully obtained a complete "no charges" outcome. This case demonstrates that, in subsidy-related matters, criminal liability cannot be established solely on the basis of formal item classifications or ex post settlement materials; rather, a comprehensive review is required, including the subsidy disbursement structure at the outset of the project, the scope of discretion afforded to the subsidy recipient, and the actual methods of execution.
□ Attorneys in charge: Choi Joo-young, Chung Yang-hun, Park Jung-min
2026. 04. 30