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Blogs NEWCriminal Defense for Foreign Nationals in Korea
Integrated Expertise in Investigation, Trial, and Immigration Consequences 1. Unique Challenges in Criminal Cases Involving Foreign Nationals When a foreign national becomes involved in a criminal case in Korea, the difficulty extends far beyond legal issues. Language barriers, limited cultural understanding, and unfamiliar procedures make the process significantly more complex. The Constitutional Court of Korea has affirmed that foreign nationals have the same constitutional right to a fair trial and to personal liberty. Key issues commonly arise in the following areas: Jurisdiction Korean courts may have jurisdiction even if the alleged offense occurred outside Korea (Criminal Act Articles 5–6). Interpretation Accuracy Under Article 180 of the Criminal Procedure Act, inadequate interpretation can restrict a defendant’s right to defense. Immigration Consequences A conviction can immediately affect visa extension, status of stay, or even lead to deportation (Immigration Control Act Article 85). 2. Protection of Rights During Investigation and Trial Foreign nationals are entitled to the same right to counsel as Korean citizens. However, due to language barriers, the lawyer’s role becomes even more critical. Right to Counsel Constitutionally protected from the earliest stage of investigation. Accurate Interpretation Precise interpretation is indispensable for a fair trial. Consular Assistance Foreign defendants may request assistance from their home country’s consulate. During trial, misinterpretation and cultural misunderstandings can affect credibility judgments. Courts must consider the unique nature of foreign national cases when evaluating evidence. 3. Criminal Proceedings and Immigration Measures Foreign nationals face interconnected criminal and immigration consequences: Deportation Deportation may proceed immediately after a sentence is served (Immigration Control Act Article 85). Exit Ban The Minister of Justice may impose an exit ban during investigation or trial (Article 29). Protection of Foreign Victims Victims of human trafficking or similar crimes may receive special protections such as stay extensions or deferred deportation. Our Approach: Decent Law Firm’s Strategy for Foreign National Cases Decent Law Firm prioritizes understanding the client’s language, cultural background, and communication style. Effective communication is essential to identifying the facts accurately and preventing unnecessary misunderstandings in court. We analyze each case from both a criminal law perspective and an immigration perspective, recognizing that foreign national matters involve both domains simultaneously. Supported by the Constitutional Court’s interpretation of treaty obligations (Korean Constitution Article 6(2)), we ensure that international rights and treaty protections are fully considered. When necessary, we engage in international judicial cooperation, including obtaining evidence abroad and seeking recognition of foreign court decisions—tasks that require specialized cross-border experience. 4. Our Team’s Strength in International Matters Our attorneys include graduates of New York University (NYU) and the University of Michigan, with extensive experience navigating global criminal and immigration issues. We provide full-scope support from: Early-stage investigation Court representation Post-conviction immigration measures (deportation, visa revocation, overstay issues) Decent Law Firm is committed to standing by foreign nationals who face legal difficulties in an unfamiliar country—protecting their rights from the beginning to the very end.
2025-11-28 Blog -
Blogs
MBK's Tender Offer for Korea Zinc: Key Legal Insights and Implications
What is a Tender Offer? A tender offer is a system where a party acquires a significant number of shares from multiple shareholders of a listed company to obtain management control. Under Article 134 of the Financial Investment Services and Capital Markets Act (FSCMA), tender offerors must publicly announce their offer and submit a tender offer statement to the Financial Services Commission and the stock exchange. MBK's recent tender offer for Korea Zinc serves as a notable example of how this system is applied in practice. MBK’s Tender Offer Terms and Comparison to HYBE’s SM Case MBK specified the tender offer price at 660,000 KRW per share and set the minimum purchase quantity at 6.98% of the total issued shares. This conditional tender offer ensures that the offeror can withdraw if the minimum purchase requirement is not met. In contrast, during HYBE’s tender offer for SM Entertainment, no such condition was established. Despite a significant increase in SM's stock price due to competing offers, HYBE had to purchase all shares tendered, resulting in substantial losses. Impact of Competing Offers and Stock Price Volatility Korea Zinc’s current stock price (735,000 KRW) exceeds MBK’s tender offer price (660,000 KRW), reflecting market speculation about a potential competing tender offer. If a competing offer emerges, stock prices often rise to levels comparable to or higher than the tender offer price, increasing volatility in the market. If MBK fails to meet the minimum purchase threshold or decides to withdraw due to a sharp increase in Korea Zinc’s stock price, they can legally cancel the tender offer under Article 139 of the FSCMA. However, existing shareholders would not be entitled to seek damages or penalties against MBK in such a case. Legal Effects of Tender Offer Withdrawal Should MBK’s tender offer be withdrawn or fail to meet its minimum purchase condition, the company is not obligated to proceed with the acquisition. Shareholders are left with no legal recourse to claim compensation for the failed tender offer. Conversely, if MBK raises the tender offer price through an amended filing to meet market expectations, Korea Zinc’s stock price could see further increases during the tender period. Conclusion: Caution for Individual Investors During the tender offer period (September 13, 2024 – October 4, 2024), Korea Zinc’s stock price is expected to experience significant volatility due to factors such as competing offers and adjustments to the tender price. Individual investors are advised to carefully evaluate the risks and opportunities before making investment decisions in this highly dynamic environment. MBK’s tender offer highlights critical legal and financial considerations in tender offers, providing valuable insights for future cases in the market.
2024-09-22 X (Twitter) -
Blogs
Tax Obligations for Domestic Virtual Asset Trading
Currently, there is no explicit legal basis for taxing income from virtual asset trading under the current tax laws in South Korea. As a result, no taxation is imposed. Courts have also weighed in on this matter with rulings that clarify the legal stance. Seoul Administrative Court Ruling The Seoul Administrative Court ruled: "Under the current tax laws, income from virtual asset trading by individuals (residents and non-residents) and foreign corporations is not listed as taxable income under the Income Tax Act and is therefore not subject to taxation." The court provided the following rationale for its decision: Virtual Assets as Non-Tangible Domestic Assets Virtual assets do not qualify as "domestic assets other than real estate" under the former Income Tax Act (Article 119, Paragraph 12, Subparagraph (m)). As virtual assets are stored and maintained across a global network of computers connected through blockchain, they cannot be considered assets located within Korea. Exclusion from Economic Benefits Clause Income from virtual asset transactions does not meet the criteria for "economic benefits derived from assets located within Korea or similar income" under the same statute (Subparagraph (k)). Principle of Tax Legality Under the principle of legality in tax law, tax regulations must be strictly interpreted as written without expansion or analogy unless special circumstances justify otherwise. Enumerative Tax System The Income Tax Act employs an enumerative system, meaning only income explicitly listed in the law can be taxed. Unlisted income remains untaxed. Planned Taxation of Virtual Asset Trading Income The South Korean government plans to implement taxation on virtual asset trading income starting January 1, 2025. Key Provisions of the Revised Tax Laws Income Classification: Revised Income Tax Act (Article 21, Paragraph 1, Subparagraph 27) categorizes "income from the transfer or lending of virtual assets" as other income. Source of Income: Revised Income Tax Act (Article 119, Paragraph 12, Subparagraph (n)) designates this income as domestic source income for non-residents. Withholding Tax Rates: Revised Income Tax Act (Article 156, Paragraph 1, Subparagraph 8, Clause (b)) specifies withholding tax rates for virtual asset trading income, differentiating cases based on whether the acquisition cost is verifiable. Corporate Tax Inclusion: Revised Corporate Tax Act (Article 93, Paragraph 10, Subparagraph (k)) includes virtual asset income as domestic source income for foreign corporations. Implementation Timeline Initially scheduled for January 1, 2022, the enforcement was delayed twice and is now set to commence on January 1, 2025. The taxation will apply to transfers or lending of virtual assets occurring after this date. However, there remains a possibility of further postponement. Current and Future Taxation Implications As of now, there is no tax obligation for income generated from virtual asset trading due to the lack of explicit legal grounds. However, once the revised laws come into effect on January 1, 2025, tax obligations will likely arise. Monitoring and Considerations Tax regulations and their interpretation may evolve. Therefore, continuous monitoring is essential. Specific issues, such as the determination of acquisition costs, handling of transactions through foreign exchanges, and taxation of various virtual asset transaction forms (e.g., DeFi, NFTs), are expected to be clarified before the tax implementation. Stakeholders should stay informed on these developments.
2024-09-14 X (Twitter) -
Blogs
Claim for Damages Against a Domestic Cryptocurrency Exchange
If a cryptocurrency exchange failed to suspend transactions or halt trading despite being informed of a hack involving the issuing foundation of a listed token, resulting in investor losses, what liabilities could the exchange face? Breach of Duty of Care Cryptocurrency exchanges have a duty to protect investors by taking appropriate measures during incidents such as hacking. If an exchange was aware of a hacking incident but failed to suspend trading, this could be considered a breach of its duty of care. Relevant precedents also support this viewpoint. Breach of Contract If an exchange promised to replace an affected token with a new token at a 1:1 ratio but failed to fulfill this commitment, resulting in significant losses for token holders, the exchange may be held liable for breaching its contractual obligations. Unlawful Acts and Liability for Damages Exchanges are obligated to take proper measures to protect investors. If they neglect these responsibilities, their actions could constitute an unlawful act, making them liable for damages under applicable laws. Korean cryptocurrency exchanges are expected to prioritize investor protection. Failure to meet this standard could lead to legal claims for compensation.
2024-09-13 X (Twitter) -
Blogs
Risks of Domestic Cryptocurrency OTC Transactions
Definition of Cryptocurrency OTC Transactions Cryptocurrency OTC (Over-the-Counter) transactions involve the exchange of fiat currency, such as Korean won (KRW), into USDT (Tether) on a continuous, repetitive, and profit-driven basis. How It Works An OTC broker receives requests from specific organizations and facilitates transactions by: Receiving fiat currency (KRW) from individual customers into their account. Depositing the equivalent USDT from their holdings into the customer’s cryptocurrency exchange account as designated by the organization. Charging a commission fee, typically around 5% of the transaction amount. Violation of the Specific Financial Information Act (Special Act) Cryptocurrency OTC operators may be at risk of violating the Specific Financial Information Act (Special Act) in South Korea. If a business engages in repeated brokerage of cryptocurrency transactions for profit without proper registration, it constitutes a violation of the Special Act. The risks escalate significantly if the transactions involve illicit funds, such as those related to phishing schemes, drug money, or gambling proceeds. Special Act Article 7(1): Any business operating cryptocurrency transactions must register with the Financial Intelligence Unit (FIU). Special Act Article 17(1): Failure to comply may result in imprisonment of up to 5 years or a fine of up to 50 million KRW. Legal Precedent and Penalties Recent court rulings in South Korea have affirmed that individuals engaging in continuous, repetitive, and profit-driven cryptocurrency brokerage are classified as Virtual Asset Service Providers (VASPs) under the Special Act. In a notable case, the court imposed a 1 year and 6 months prison sentence based on the frequency and scale of transactions. This decision underscores the gravity of conducting cryptocurrency brokerage without proper registration. Key Takeaways Businesses conducting cryptocurrency transactions as a commercial activity must register with the Financial Intelligence Unit to comply with the Special Act. Violations can lead to severe penalties, including imprisonment and fines. Given the potential misuse of cryptocurrencies in criminal activities such as phishing and money laundering, stricter regulatory measures are necessary to ensure compliance and safeguard the financial system.
2024-09-12 X (Twitter) -
Blogs
Supreme Court Ruling: Legal Characteristics and Specificity of Virtual Assets in South Korea
The Supreme Court of South Korea has defined virtual assets as "digital representations of economic value that are not controlled by the state but are granted value through blockchain or other encrypted distributed ledgers, qualifying as property benefits" (referencing Supreme Court Decision 2021Do9855, November 11, 2021). The Court emphasized the distinct characteristics of virtual assets, such as the ability to verify only the addresses of electronic wallets without identifying the user's personal information, and the distributed recording of transaction histories, which set them apart from traditional assets. Furthermore, the Supreme Court noted that virtual assets are not subject to the same level of regulation as legal tender and involve inherent risks in transactions. Consequently, the Court concluded that virtual assets do not warrant the same level of legal protection as legal tender under criminal law.
2024-09-10 X (Twitter)
