Finance and Litigation
[Financial Litigation] Successfully Represented the Financial Services Commission in an Administrative Lawsuit for Cancellation of a Fine Imposed for Naked Short Selling
1. Case Overview In these cases, the plaintiffs were a foreign financial institution (Case 1) that was fined approximately KRW 1.06 billion by the Securities and Futures Commission (the "SFC") for violation of the prohibition against naked short selling and a domestic financial institution (Case 2) that was fined approximately KRW 350 million by the SFC on the same grounds. 2. Our Arguments and Role In Case 1, at first instance, the court found that the plaintiff violated the Capital Markets Act by naked short selling 29,771 shares it had ordered to sell, but ruled that the fine imposed based on 41,919 shares was unlawful on the grounds that there was no objective evidence to show that the plaintiff could have predicted that the securities company would place a sell order for 41,919 SK Hynix shares. On appeal, we emphasized the specific characteristics of the plaintiff's sell orders and, relying on replies to fact-finding inquiries sent to the securities company, successfully argued that the plaintiff could reasonably have foreseen the submission of sell orders in excess of the executed volume. This led the appellate court to dismiss the plaintiff's claims. In particular, we highlighted that the plaintiff, by placing sell orders with conditions such as CD (Careful Discretion) and GTC (Good Till Cancelled), was fully aware that orders exceeding the executed quantity would be submitted and that the plaintiff had actually received trade confirmations from the securities company, which provided it with clear knowledge of orders being submitted and executed in excess of the executed quantity. We also pointed out that the SFC appropriately exercised its discretion by partially reducing the fine with respect to unexecuted orders so that the sanction matched the degree of responsibility attributable to the plaintiff. Thereby, we focused on logically arguing that the plaintiff should be held responsibility for all 41,919 shares ordered for short sale in the market. Accordingly, we argued that the securities company’s submission of 41,919 sell quotes was within the ordinary scope of its discretion granted under CD and VWAP conditions, that the plaintiff, as a global financial institution, could have fully anticipated such market execution practices, and that the responsibility for the exercise of discretion under CD/VWAP conditions should be attributed to the plaintiff as the one who placed the orders. Another key legal issue was whether the plaintiff qualified as a “party who entrusted the short sale order.” We contended that the plaintiff was the substantive wrongdoer who caused the short sale order to be submitted to the market, and thus, imposing the fine on the plaintiff was consistent with the systematic and logical interpretation of the Capital Markets Act, the legislative purpose of regulating short sales, and the consistent enforcement practice of the financial regulators. In Case 2, the first-instance court upheld our arguments that even if other funds held the stock subject to short selling, violations must be determined separately for each fund and cannot be offset by cross-transactions; and that a mistaken order causing a short sale cannot constitute a justifiable reason excusing the violation. Accordingly, the claim was dismissed at first instance. On appeal, the plaintiff argued that unlike other institutions fined for short selling violations, it was not granted a reduction of the fine. We successfully defended the SFC by emphasizing the basic legal principles underlying the imposition of fines and highlighting the differences from other cases, while reinforcing the arguments made at first instance, ultimately securing a favorable final judgment. 3. Significance of the Judgments These two appellate court decisions are the first final appellate rulings concerning fines imposed for illegal short selling, serving as important precedents for numerous related cases. In particular, the judgments clearly established that: ① Whether a short sale has occurred must, in principle, be determined separately for each collective investment property; ② The determination of fines for short sale violations does not take into account intent or negligence; ③ Regardless of whether a person has opened a trading account with a KRX member firm or is the economic beneficiary of the entrusted transaction, anyone who entrusts an illegal short sale order may be subject to fines; ④ A fine for a short sale violation has both the nature of recouping unjust enrichment and imposing sanctions, and the fact that a party suffered losses from the short sale does not render the fine unlawful; ⑤ Where an order has been “entrusted,” fines must be calculated based on the total quantity of short sale orders actually submitted, not the entrusted order quantity; ⑥ The entire quantity of short sale orders submitted to the market (including unexecuted portions) must be included in calculating fines; and ⑦ Under Article 180 of the Capital Markets Act, a short sale violation cannot be rectified, and fulfilling settlement obligations of a short sale is merely a measure to avoid forced settlement by the exchange and cannot be deemed a corrective measure. These rulings carry great significance as they provide clear guidance on recurring issues in other similar cases and will serve as important precedents in future short selling litigation.
2025. 09. 30
Management Rights Disputes
[Corporate Control Dispute] Successfully Argued for the Application of the Discounted Cash Flow (DCF) Method in Share Valuation in the IraeCS Corporate Control Dispute, Leading to a Significant Reduction of Remaining Put Option Payments
1. Case Overview a. Parties Represented by Barun Law We represented defendants who were the founder and former major shareholders of IraeCS Co., Ltd. The plaintiffs, Baruch LLC and Kenan LLC, were financial investors in IraeCS, established as special purpose vehicles by a private equity fund. b. Case Background In or around 2022, the plaintiffs exercised their put options and, in order to recover the exercise price, enforced a pledge on the defendants’ shares and thereby acquired those shares. In 2023, the plaintiffs obtained a preliminary injunction confirming their shareholder status and consequently took control of IraeCS’s management. The defendants, however, sought to reclaim management control of IraeCS by settling the put option exercise price based on a fair valuation of their shares. 2. Litigation Details - The plaintiffs argued that, at the time of enforcing the pledge, the value of the defendants' shares amounted to only KRW 1,863 per share, as calculated under the Inheritance and Gift Tax Act (the "IGTA"). Based on this valuation, the plaintiffs claimed that even after acquiring all of the defendants' shares, there remained an outstanding balance of KRW 62.8 billion under the put option exercise price, and they sought payment of KRW 9.4 billion as part of that amount. - We countered that the plaintiffs' valuation of the shares was unreasonable and argued that the put option exercise price must instead be settled on the basis of the share value assessed under the Discounted Cash Flow (DCF) method. - In particular, we emphasized: ① IraeCS's net income had plummeted due to the COVID-19 pandemic at the time of the pledge enforcement; ② The valuation methods under the IGTA are primarily intended to determine tax bases rather than to assess the fair value of shares; and ③ The IGTA valuation method fails to properly reflect the value of going concerns with substantial business value. On these grounds, we strongly argued that the DCF method must be applied in valuing the shares. - The court accepted our arguments, ruling that the fair value of the defendants' shares at the time of pledge enforcement should be assessed using the DCF method, at KRW 10,345 per share. As a result, the outstanding put option exercise price was determined to be only KRW 1.4 billion, rather than the KRW 62.8 billion claimed by the plaintiffs. The court issued a reciprocal performance judgment ordering the defendants to pay the remaining balance and the plaintiffs to transfer the put option subject shares. 3. Significance of the Judgment This case is highly significant as the court accepted the DCF method as the appropriate valuation method for shares of a non-listed company's major shareholders, resulting in a dramatic reduction of the remaining put option exercise price from approximately KRW 62.8 billion to KRW 1.4 billion. The judgment represents a meaningful precedent, laying the groundwork for reclaiming management control in disputes between founders and financial investors.
2025. 09. 30
Management Rights Disputes
[Corporate Control Dispute] Successfully Overturned the Lower Court Decision by Proving Procedural Defects in Board Resolutions and Prevailed in an Injunction for Suspension of Duties
1. Case Overview a. Parties Represented by Barun Law We represented Mr. A, a former director of a social welfare corporation (creditor, appellant) ("Corporation B"). b. Case Background When the former chairperson of Corporation B received prior notice from the Seoul Metropolitan Government regarding dismissal, the chairperson abruptly announced his resignation at a board meeting. However, the notice convening that meeting did not list the appointment of a successor chairperson as an agenda item. Despite this, the board passed a resolution at that meeting to appoint a new chairperson. The newly appointed chairperson subsequently convened another board meeting, during which further resolutions, including the appointment of additional directors, were adopted. c. Litigation Mr. A argued that the initial board resolution was marred by serious procedural defects, rendering it invalid, and consequently that all subsequent resolutions adopted on its basis were likewise null and void. He sought an injunction to suspend the duties of the newly appointed chairperson and directors. The first-instance court dismissed his application, prompting an appeal. 2. Decision The appellate court overturned the lower court's decision and accepted the creditor's claims, ruling to suspend the duties of the chairperson and directors appointed pursuant to the invalid board resolution until a final judgment is rendered on the merits. 3. Grounds of the Decision The court held that the notice convening the initial board meeting mentioned only "discussion of follow-up measures to the dismissal of corporate officers" and did not specify the appointment of a new chairperson as an agenda item. Therefore, the resolution appointing a new chairperson violated directors' rights to deliberate and prepare for the meeting, constituting a serious procedural defect that rendered the resolution invalid. The court further determined that the subsequent board resolutions convened by an unauthorized person (the improperly appointed chairperson) were also invalid. On this basis, the court reversed the first-instance decision and granted the creditor's application. 4. Our Arguments and Role We persuasively argued that: - The creditor, as a resigning director with emergency handling authority, still had a legal interest in seeking confirmation of the invalidity of the resolutions. - The Articles of Incorporation and the Social Welfare Services Act clearly established the procedural illegality of the initial board meeting. - Resolutions convened by an unauthorized person must also be deemed invalid. We further emphasized that allowing the respondents to continue performing their duties would cause substantial harm or imminent risk to the corporation's operations. By thoroughly explaining the circumstances of the disputes surrounding the resignation and appointment of the chairperson and directors, as well as the current state of Corporation B's management, we convincingly demonstrated the necessity of provisional relief. As a result, we successfully reversed the first-instance dismissal on appeal. 5. Significance of the Decision This case exemplifies overcoming an unfavorable first-instance ruling in an injunction proceeding by meticulously establishing defects in board meeting notices, the scope of agenda items, the ripple effects of procedural flaws, and the necessity of provisional relief. In particular, it highlights that, in disputes concerning the appointment of corporate officers, strict adherence to statutory and bylaw procedures is central to determining the validity of board resolutions. The decision provides meaningful guidance for developing effective litigation strategies in future disputes of a similar nature.
2025. 09. 30
Energy/Infrastructure
[Project Finance] Advisory on PF Loan Agreement for 108MW Direct PPA Solar Power Project in Jeju
1. Overview and Significance Barun Law LLC advised a consortium of major domestic financial institutions, arranged and syndicated by Hana Bank and Hana Securities, in connection with a project financing (PF) loan of approximately KRW 168.7 billion for the largest solar power generation facility in Jeju, with a total installed capacity of 108MW located in Seogwipo-si. Barun Law successfully provided comprehensive legal advice throughout the transaction, from negotiations on financing agreements and drafting and execution of major project contracts to supporting the initial fund withdrawal. 2. Uniqueness of the Transaction and Barun Law's Role This project involves a power trading structure under which renewable energy generated by the facility is sold directly to private corporations through a so-called "Direct PPA (Direct Power Purchase Agreement)" scheme, as recognized under the Electric Utility Act. In addition, the project is subject to the renewable energy bidding system newly introduced in Jeju. Leveraging its legal expertise and in-depth understanding of the Direct PPA regime and the renewable energy bidding system, Barun Law rendered tailored advice for the transaction. Unlike typical PF structures in which a special purpose company (SPC) directly obtains permits and licenses for project development, this transaction adopted a structure whereby the SPC acquired and operates all contractual rights and positions, including permits, licenses, and site land use rights (surface rights) that had already been obtained by the investor for the solar power facility under development. Accordingly, identifying and securing the assets and rights essential for project execution emerged as a core issue. Barun Law conducted thorough legal due diligence on the investor, reflected the findings in key financing documents (such as loan agreements and security documents) as well as major project contracts (including the power purchase agreement, EPC contract, O&M agreement, and asset transfer agreement), thereby ensuring the stability and legal completeness of the transaction structure. 3. Conclusion Through this engagement, Barun Law once again demonstrated its expertise and experience in project finance for diverse renewable energy sectors, including solar, wind, and fuel cell projects. Going forward, Barun Law will continue to provide optimal legal services for increasingly diverse and complex financial transactions.
2025. 09. 30
Food and Pharmaceutical
[Corporate Advisory] Completion of Legal Advisory on Establishment of a Japan Joint Venture Company by Dong-A ST
Barun Law LLC (Foreign Attorney Oh Hijoung, Partner Attorney Choi Jae-woong, Attorney Lee Hye-jun, and Attorney Kim Jun-young) successfully provided comprehensive legal services in connection with the establishment of a joint venture company in Japan between Dong-A ST Co., Ltd. and ITOCHU CHEMICAL FRONTIER Corporation (a chemical/pharmaceutical subsidiary of Itochu Corporation, one of Japan's largest general trading companies). The scope of work included drafting and negotiating the joint venture agreement, shareholders' agreement, and other related contracts. Notably, although the joint venture company was established primarily for business operations in Japan, the transaction fell within the scope of pre-merger notification under the Korean Monopoly Regulation and Fair Trade Act. Barun Law conducted an extensive review and analysis of financial data, market data, and competition-related materials required for the filing, and duly completed the pre-merger notification process with the Korea Fair Trade Commission (KFTC). The team also responded promptly to supplementary requests raised during the review process, ensuring the successful completion of the merger filing. In addition, Barun Law provided strategic advice regarding business cooperation agreements between the client and its partner company, aimed at safeguarding the client’s interests in the course of the joint venture's business operations after its establishment. In particular, the firm closely reviewed and negotiated detailed provisions on royalty payments, exclusive business rights, and dispute resolution mechanisms, offering guidance to balance and align the parties' respective interests. Through this engagement, Barun Law once again demonstrated its ability to deliver legal services that maximize client value in an environment of increasing cross-border M&A activity. By thoroughly analyzing regulatory requirements and legal differences across jurisdictions, the firm provides optimal structures and strategies tailored to each transaction, identifies and manages risks at every stage, and ensures both stability and efficiency in transactions. Barun Law remains committed to delivering integrated legal solutions that support clients in achieving their strategic objectives.
2025. 09. 30
Family and Inheritance Litigation
[Divorce/Inheritance Litigation] Successfully Prevented Abuse of Contribution Claims in Multi-Billion KRW Inheritance Dispute
1. Case Overview This case involved a dispute over the inheritance of an estate valued at several hundred billion Korean won, with the central issues being the division of inheritance and whether a contribution claim should be recognized. The decedent's children born out of wedlock asserted their inheritance rights as claimants, while the eldest son argued that, as he had succeeded to the family business and managed the company, he had made a "special contribution" to the formation of the estate and therefore should be awarded a 50% contribution share. He further contended that the shares he owned should not be included as a special benefit. Given the scale of the estate, the complexity of the legal issues, and the fact that the opposing side was represented by a large law firm, the case attracted significant attention. 2. Our Strategy and the Court's Decision We represented the claimants and secured a favorable judgment at first instance. Even after the eldest son retained a major law firm and sought to overturn the outcome on appeal, we successfully obtained dismissal of the appeal. A decisive element of our strategic advocacy was dismantling the eldest son’s contribution claim. To prove that he had not in fact contributed to the company’s growth despite his titles as CEO and majority shareholder, we conducted an exhaustive analysis of the decedent’s personal notes, corporate records, and prior litigation documents. The evidence demonstrated persuasively that the eldest son had been unable to engage in company management for extended periods due to alcoholism and had been effectively excluded from key decision-making and the company’s growth. Further, we established that the shares held by the eldest son—despite lacking the formal appearance of a gift—had in substance been donated by the decedent. Accordingly, the entire value of those shares was included in the calculation of the inheritance portion. 3. Significance This case is a landmark example of blocking the abuse of the contribution claim system and reaffirming the principle that substance takes precedence over form in determining whether certain property should be treated as a special benefit. By meticulously analyzing complex materials and evidence, we persuasively demonstrated the facts to the court, thereby protecting the rights of our clients in a high-stakes inheritance dispute of unprecedented scale.
2025. 09. 30