Tax litigation in South Korea: overview

A Q&A guide to civil and criminal tax litigation in South Korea.

This Q&A provides a high level overview of the key practical issues in civil and criminal tax litigation, including: pre-court/pre-tribunal process, trial process, documentary evidence, witness evidence, expert evidence, closing the case in civil and criminal trials, decision, judgment or order, costs, appeals, and recent developments and proposals for reform.

To compare answers across multiple jurisdictions, visit the Tax Litigation: Country Q&A tool.

The Q&A is part of the global guide to tax litigation. For a full list of jurisdictional Q&As visit www.practicallaw.com/taxlitigation-guide.

Contents

Overview of tax litigation

Issues subject to tax litigation

1. What are the most common issues subject to tax litigation in your jurisdiction?

Tax appeal litigation is increasingly on the rise in South Korea. In addition, there has been a significant increase in international tax litigation where non-residents or foreign corporations are a party. Among international tax litigation issues, the most frequently contested matters which are subject to tax disputes concern:

  • Transfer pricing.

  • Tax avoidance.

  • Tax residency and permanent establishment issues related to tax treaties.

  • Domestic source income issues.

In the criminal arena, there have been continued efforts to strengthen the penalties for repeat offenders or large tax evaders by improving the sentencing system for tax evaders.

Legislative framework

2. Outline the legislative framework and principal pieces of legislation governing both civil and criminal tax litigation.

Civil tax litigation

There is a two-tiered tax system in South Korea, which involves:

  • Taxation by the national tax authorities.

  • Taxation by the local tax authorities.

The taxes imposed are largely grouped into two types depending on the entity that imposes the tax. Taxes imposed by the national tax authority are referred to as "national taxes", whereas taxes imposed by the local tax authority are referred to as "local taxes".

National taxes are divided into:

  • Internal tax.

  • Customs.

Internal taxes include:

  • Corporate tax.

  • Value-added tax.

  • Inheritance and gift tax.

  • Special tax for rural areas.

Local taxes include:

  • Acquisition tax.

  • Registration and licence tax.

  • Property tax.

South Korea follows the continental legal system and the legislative framework contains separate pieces of legislation for each tax item, which includes the:

  • Corporate Income Tax Act (CITA).

  • Individual Income Tax Act (IITA).

  • Value-Added Tax Act (VATA).

The National Tax Service (NTS) (which is responsible for national taxes), South Korea Customs Service (SKCS) (which is responsible for customs) and local governments (which are responsible for local tax) are delegated the authority to impose taxes under the individual laws. The tax authority against which civil tax litigation is brought can differ depending on the tax item at issue.

The rules on filing appeals prior to initiating court litigation are based on the legislative provisions contained in:

  • Basic National Taxes Act (BNTA).

  • South Korea Customs Duty Act (SKCDA).

  • Basic Local Taxes Act (BLTA).

Court litigation is conducted according to administrative litigation procedures.

Criminal tax litigation

With regard to criminal tax litigation, criminal prosecution is brought by a prosecutor. Any evasion of national taxes (excluding customs) is subject to the legislative provisions contained in the Punishment of Tax Evaders Act (PTEA). Any evasion of customs duties is subject to the legislative provisions contained in the Customs Act. In addition, any evasion of local taxes is subject to the legislative provisions contained in the BLTA.

Tax evasion and other criminal tax offences

3. What are the key elements that constitute tax evasion and other main criminal tax offences in your jurisdiction?

In general, South Korean tax law provides various sanctions and penalties with respect to the under-reporting of tax and other civil tax offences. In addition, the criminal tax legislation also contains separate punishment provisions to address various criminal tax offences. The main legislation governing tax evasion and other criminal tax offences is the Punishment of Tax Evaders Act (PTEA).

In particular, Article 3 of the PTEA stipulates the key elements that constitute tax evasion. Tax evasion means "an offence of evading a tax, or obtaining a tax refund or deduction, by fraud or other unlawful means". "Fraud or other unlawful means" refers to any active act which makes the imposition and collection of taxes impossible or remarkably difficult, and which fall under any of the subparagraphs of Article 3(6) of the PTEA, such as:

  • False book entries, such as the preparation of double bookkeeping.

  • Preparation and receipt of false evidence or a false document.

  • Destruction of books and records.

  • Concealment of property, fabrication or concealment of income, earnings, acts, or transactions.

  • Intentionally not preparing or keeping books, or fabrication of bills, tax invoices, a sum table of bills or a sum table of tax invoices.

  • Fabrication of facilities for enterprise resource planning (ERP) or electronic tax invoices under Article 24(1)4 of the Restriction of Special Taxation Act.

  • Other acts involving a deceptive scheme or unlawful acts.

Based on the above, the key elements of tax evasion require both:

  • An action which makes the imposition and collection of taxes impossible or remarkably difficult.

  • That tax evasion or a tax refund/deduction incurs as a result of such action.

 

Pre-court/pre-tribunal process

Assessment, re-assessments and administrative determinations in civil law

4. Outline the procedure for tax assessments, re-assessments and administrative determinations in civil law.

The National Tax Service (NTS) oversees the overall administration of all national taxes (with the exception of customs). Specifically, each of the regional tax offices under the NTS handles the administrative affairs relevant to each region. Meanwhile, the South Korea Customs Service (SKCS) handles the administration of customs matters and the local government agencies oversee the administration of local taxes.

In principle, tax is imposed on income based on the reporting and payment method. If a taxpayer fails to report or underreports his income, the relevant tax authority has the power to issue a tax imposition.

Taxation on income can be classified into individual income tax and corporate income tax, depending on whether a taxpayer is an individual or a corporation. Taxation depends on:

  • Whether an individual is a resident or a non-resident, and whether the individual (where the individual is a non-resident) has a permanent establishment in South Korea.

  • Whether a corporation is a domestic or foreign corporation, and whether the corporation (in the case of a foreign corporation) has a permanent establishment in South Korea.

An individual resident must report his tax base and pay the relevant tax amount by May of the year following the end of the relevant taxation period. However, the Individual Income Tax Act (IITA) sets out the procedures for interim pre-payment, preliminary return, withholding, occasional imposition and other such matters to allow for the collection of income tax in advance during a taxation period. In particular, in the case of withholding, an employer directly pays the tax which is withheld at the time of payment of the income to its employee. A corporation must report to the competent tax office the tax base for its corporate income tax on the income arising during a business year and the tax amount within three months of the last day of the month on which the business year ends. If a business year exceeds six months, the six-month period from the commencement of a business year becomes an interim prepayment period, and the relevant corporation must pay its corporate income taxes for that period.

Foreign corporations and non-residents with a permanent establishment in South Korea have substantially the same tax liability as domestic corporations and residents. In the case of a foreign corporation or a non-resident without a permanent establishment, the income payor will withhold taxes on behalf of the foreign corporation or non-resident and remit the tax amount to the tax office. In respect to the above, "permanent establishment" means a fixed place of business where a foreign corporation carries out all or part of its business.

Resolving disputes before commencing court proceedings

5. What are the main procedures used to resolve disputes before commencing proceedings in a civil court/tribunal?

If a taxpayer receives an unfair administrative decision, or does not receive an appropriate decision under the tax laws, it can raise an objection or appeal. The objection or appeal system is divided into:

  • The advance remedy system.

  • The ex post facto remedy system.

The advance remedy system consists of raising a "review of the adequacy of a tax imposition" (RATI). It is an advance remedy which allows a taxpayer who has received a pre-assessment notice to request a review of the adequacy of that pre-assessment notice by the relevant tax office or regional tax head office. It is a procedure for contesting the reasonableness of taxation prior to the issuance of a final decision by the tax authority.

The ex post facto remedy system is a two-tiered system involving administrative relief (administrative appeal) and judicial relief (administrative and civil litigation). However, under the current tax laws, a taxpayer cannot immediately file suit with the court concerning an unfair imposition of national tax (that is, capital gains tax, inheritance tax, gift tax, corporate tax, value-added tax, and so on) by the tax authorities. Prior to filing suit, an administrative appeal must first be filed with the relevant tax authority by invoking one of the following administrative appeal procedures:

  • A request for examination to the National Tax Service (NTS).

  • A request for adjudication to the Tax Tribunal.

  • A request for examination with the Board of Audit and Inspection (BAI) of South Korea.

Elements of the offence in criminal law

6. What are the elements of the main criminal law offences in tax litigation?

Any evasion involving internal taxes is subject to the provisions contained in the Punishment of Tax Evaders Act (PTEA). The evasion of customs duties is subject to the provisions contained in the South Korea Customs Duty Act (SKCDA). Any local tax evasion is subject to the provisions contained in the Basic Local Taxes Act (BLTA).

In particular, the elements of tax evasion are contained in Article 3 of the PTEA. The key elements of tax evasion require both:

  • An action which makes the imposition and collection of taxes impossible or remarkably difficult.

  • That tax evasion or a tax refund/deduction incurs as a result of such action.

When a taxpayer objects to a tax evasion charge, various countermeasures are available depending on the issues at hand. In most cases, however, taxpayers respond by proving either that:

  • The taxpayer actions were not "actions involving fraud or other unlawful means".

  • Their actions did not lead to an evasion of taxes.

Early resolution

7. What are the main procedures used for the early resolution of criminal law offences before trial?

If a taxpayer is charged with a criminal tax offence, there are no particular procedures, such as plea bargaining, available for early resolution of the criminal proceedings.

However, if the taxpayer pleads guilty to all charges during the investigations phase, the criminal proceedings may be closed earlier and the guilty plea can be reflected in the sentencing. However, such early closures to criminal proceedings should not be taken to mean that a separate procedure may be commenced for early resolution.

 

Trial process

Format of the hearing/trial

8. What format does the hearing/trial take?

The Constitution of the Republic of South Korea provides in Article 109 that "trials and decisions of the courts shall be open to the public, provided that when there is a danger that such trials may undermine the national security or disturb public safety and order, or be harmful to public morals, trials can be closed to the public by court decision".

As a result, open hearings/trials are prescribed in the Constitution of the Republic of South Korea. Accordingly, civil and criminal hearings/trials are, in principle, open to the public.

In all civil and criminal cases, a specific date is designated for a hearing/trial, and in principle an oral hearing is usually held. Therefore, court decisions cannot be made solely on the basis of written submissions.

In the event of civil cases, a hearing/trial can be held and a decision rendered even if a party fails to attend the hearing/trial. Articles 148 and 150 of the Civil Procedure Act prescribe that pleadings can proceed by deeming that a non-attending party is present on the date and makes statements or confessions.

Conversely, in the case of criminal cases, a trial can usually only take place only if the parties to the case attend the trial. However, there are certain exceptions where a trial can take place without a party's attendance (such exceptions are prescribed by law).

Role of the judge/arbitrator/tribunal members

9. What is the role of the judge/arbitrator/tribunal members in both civil and criminal tax litigation?

Civil tax litigation

Current laws require any dispute involving national taxes to first undertake an administrative appeal prior to initiating litigation (see Question 5). In other words, a taxpayer who does not agree with the imposition of national tax must first seek his remedy from either the:

  • National Tax Service (NTS) (via a request for examination).

  • Tax Tribunal (via a request for adjudication).

  • Board of Audit and Inspection (BAI) of South Korea (via a request for examination).

These administrative appeal bodies, equipped with appropriate expertise and skills, evaluate tax disputes before they are brought to court, and therefore make up for the weakness of, and lighten the burden of, the judicial branch in terms of both quality and quantity.

In tax litigation, the court reviews the unlawfulness of administrative actions involving taxation and makes corrections, if applicable, in order to provide relief to taxpayers in respect of infringed rights and interests.

Criminal tax litigation

As with general criminal procedures, a prosecutor makes arguments during the hearing and the defendant and its attorney defend their position. Based on the arguments heard during the trial, the court makes a judgment from an impartial third party's point of view.

Commencement of proceedings: civil law

10. What is the procedure for commencing tax litigation proceedings in civil law and/or a taxpayer appealing a decision of the tax authority?

A taxpayer must file an administrative appeal with the appropriate administrative appeal body prior to commencing tax litigation at the court level if he disagrees with an imposition of taxes (see Question 9, Civil tax litigation). An objection to national taxes should be filed with either the National Tax Service (NTS) or the Tax Tribunal within 90 days from the date when a taxpayer becomes aware of the tax imposition. The "date when a taxpayer becomes aware of the tax imposition" means the day the taxpayer actually becomes aware (via notice, announcement, and so on) of the decision of a tax authority to impose taxes. Therefore, on the date that the taxpayer becomes aware of the decision or receives a notice on such decision, the taxpayer should file a request for examination with the NTS, or a request for adjudication with the Tax Tribunal, within 90 days of that date.

If the appeal is unsuccessful and the taxpayer wishes to commence litigation, the appeal must be filed within 90 days of the receipt of a notice on the result of either his:

  • Request for examination from the NTS.

  • Request for adjudication from the Tax Tribunal.

However, if he does not receive such notice within 90 days of the filing of the appeal, he can file a suit earlier than as stated above.

When filing an appeal, a taxpayer is required to affix stamps that correspond to a certain amount calculated on the basis of the amount that is in dispute.

 
11. Must a taxpayer pay the disputed tax before leave to appeal the tax authority's decision is granted?

A taxpayer is not necessarily required to pay the disputed tax before proceeding to an administrative appeal. The taxpayer can determine whether to pay the disputed tax prior to filing an administrative appeal, in consideration of the advantages and disadvantages of making the payments and its business considerations.

If the taxpayer pays the disputed tax amount prior to appeal and is ultimately successful on appeal, the disputed tax and additional payment will be refunded in full in addition to interest at a rate of 2.5% per annum.

If the taxpayer has not paid the disputed tax amount and loses the administrative appeal, there will be penalties associated with the late payment of taxes equivalent to 3% of the overdue taxes calculated from the tax payment due date. Furthermore, additional penalties are due at the rate of 0.012% of the overdue taxes calculated for each overdue month for a period up to 60 months.

Commencement of proceedings: criminal law

12. What is the procedure for commencing tax litigation proceedings in criminal law?

With regard to the offences prescribed in the Punishment of Tax Evaders Act (PTEA), prosecutors cannot prosecute a case without charges being filed by either the Commissioner of the:

  • National Tax Service.

  • Regional tax office.

  • Tax office.

However, the filing of such charges is not a mandatory requirement for indictments or investigations. For example, the Commissioner of a tax office can file charges at the request of a prosecutor after the issuance of an arrest warrant and the commencement of litigation proceedings thereafter is considered lawful provided that the charges are filed prior to the commencement of litigation.

With respect to serious offences of tax evasion involving large tax claims or heavy charges, the tax authorities are required to initiate a tax evasion investigation. Following the investigation, the tax authorities must issue a determination on the alleged tax offence via the Tax Offence Deliberation Committee before criminal litigation can commence.

Government response

13. How has the government responded to recent civil and criminal law cases to improve the court procedure?

Civil law

The National Tax Service (NTS) has introduced an electronic tax invoicing system and requires any documents evidencing expenses, including tax-related books, to be electronically handled and stored.

In connection with this, the Basic National Taxes Act (BNTA) requires taxpayers to prepare and keep books and documentary evidence related to all of its transactions, and prescribes that taxpayers can prepare such books and documentary evidence in electronic form and that the process of their preparation must be preserved. The Enforcement Decree of the same Act prescribes special cases concerning, and exceptions to, the conversion and storage of digital documents.

Criminal law

In response to the changing tax environment and the ever-more sophisticated attempts by taxpayers to evade taxes, the government continues its efforts to enhance the effectiveness of the Punishment of Tax Evaders Act (PTEA). Such efforts include:

  • Strengthening penalties for large/habitual tax evaders by making improvements to the sentencing system.

  • Implementing a new initiative to punish illegal distribution of tax-free oil, which has become a recent social problem.

  • Imposing small penalty fines for simple violations in the form of negligence so as to avoid clogging up the system.

  • Imposing the principle of liability based on criminal capacity, accessory to crime and other factors.

Burden of proof

14. What is the burden of proof in both civil and criminal tax litigation proceedings?

Civil law

Tax litigation is a form of administrative litigation and as such, the tax authorities have the burden of proving both:

  • The facts of the case satisfy the requirements for taxation.

  • The legality of the tax procedure (unless there are special circumstances regarding the substantive, procedural illegality of the case).

A taxpayer who objects to the imposition of tax must first make specific arguments regarding the illegality of the facts and the legal reasoning of the imposition. If the claimant files a suit to seek to nullify the tax imposition, as opposed to a cancellation of the imposition, the claimant is responsible for arguing and proving that there are material and evident flaws in the imposition.

Criminal law

In criminal proceedings, prosecutors in principle bear the burden of proof regarding the charges and the facts under substantive laws and legal procedures.

Main stages

15. What are the main stages of typical court proceedings for tax disputes?

Civil law

Preparatory date for pleading (the date for summarising/organising issues). In general, on the preparatory date for pleading:

  • Statements are made regarding the complaint, reply and brief.

  • Issues are summarised.

  • The judiciary listen to each party's own statements.

  • A plan for proof is established.

The claimant summarises the facts that serve as the basis for its claim and the facts argued by the defendant. At this time, those facts that are agreed to between the parties and those facts that remain contested are determined. In addition, the scope of fact finding via witness examination and other such procedures are agreed to between the parties and the court.

On this date, both parties make their own arguments and a determination is made as to whether certain evidence will be accepted by the court.

Pleading date (intensive investigation into evidence). Once arguments and evidence are organised in the preparatory date for pleading, the pleading date is set for intensive evidentiary investigation. The pleading date will be set, regardless of the case number, based on the completion of the organisation/summary of the arguments and evidence.

If a case requires a prompt handling due to its nature, or if the controversial issues in a case only depend on legal principles and therefore the case does not require a fact-finding procedure, the pleading date can be set immediately after the submission of a reply.

Where cases have not gone through the preparatory date for pleading, testimonies, submission of evidence, investigation of facts and other procedures take place on the pleading date.

Closure of pleadings. Once arguments have been made and evidence submitted and examined, the presiding judge closes the pleading sessions and sets a date on which a final decision will be rendered.

If a party submits briefs or documents after the closure of pleadings, such submissions are not reflected in the decision of the court because such submissions were not presented during the pleading process. In that respect, if a party wishes to reflect evidence or arguments in the court decision, it must request the re-opening of the pleading process.

Criminal law

Trial preparation procedure. To ensure an efficient and focused court hearing, the court listens to the opinions of the prosecutor, the defendant (or its legal counsel) and narrows down the issues and evidence before the first hearing. During this procedure, issues and evidence are categorised and a hearing plan is established.

Hearing procedure. During the opening procedure, the presiding judge informs the defendant of its right to remain silent, and makes an identification question to confirm whether the defendant is the same person as stated in the written prosecution. The prosecutor then makes an opening statement (where he recites the facts charged, the name of the offence(s), and the applicable provisions of law as described in the written prosecution). Thereafter, the defendant makes a statement on whether it admits the facts charged and makes an opening statement on the defendant's position.

The facts of the case are heard and the parties determine the validity of the evidence, followed by an examination of the defendant. Once both sides have had the opportunity to ask questions concerning the facts and circumstances of the charges, a final pleading process is undertaken in which the prosecutor and defendant make their final statements.

Final procedure. A final decision is rendered by the court on the date when the pleadings are closed. If the defendant is found guilty, sentencing occurs on the date of issuance of the final decision.

 

Documentary evidence

Disclosure of documents in civil proceedings

16. What documents must the parties disclose to the other parties and/or the court in civil proceedings? Are there any detailed rules governing this procedure?

During the course of the administrative tax appeal stage, a taxpayer or the tax authorities can access documents related to the appeal. The taxpayer can orally request the adjudicating authority to allow the taxpayer to view or copy documents relevant to the appeal. On such a request, the adjudicating authority must disclose those documents.

At the tax litigation stage, the court has the official authority to independently examine evidence if it deems such examination to be necessary and can make an independent judgment regarding facts which are not argued by parties. There are restrictions on the scope of such examination rights, and only matters present in the records can be examined and investigated by the court to render a judgment.

Special rules/considerations

17. Are there any special rules or considerations concerning the disclosure or discovery of documents in civil tax litigation?

In principle, tax officers must not provide or disclose materials submitted by taxpayers to meet tax obligations under the tax laws, or any materials obtained for the purposes of imposing/collecting national taxes. Furthermore, tax officers are prohibited from using such information for purposes other than that original purpose. However, if there is a request from any government agency that requires such information for tax litigation or for legal proceedings against tax evaders, or if there is a court order or warrant issued by the judiciary, tax officers can provide that tax information only for such a purpose.

Disclosure in criminal proceedings

18. What documents must the parties disclose to the other parties and/or the court in criminal proceedings? Are there any detailed rules governing this procedure?

Discovery refers to the procedure in which the prosecutor or criminal defendant discloses any evidentiary material in his possession for inspection by the other party. In criminal proceedings, discovery procedures involving evidentiary material held by the prosecutor and those held by the criminal defendant are acknowledged.

A criminal defendant (or his defence counsel) can file an application with the prosecutor for the inspection, copying, or delivery in writing, of a list of documents or articles relating to the case indicted, and any documents that are likely to have influence over an admission of the facts charged or sentencing. If a prosecutor refuses to allow the inspection, copying, or delivery in writing, of documents, or places a limitation on the scope of such inspection, the defendant or his counsel can make a motion to the court to request the inspection, copying, or delivery in writing of such documents.

When a criminal defendant (or his defence counsel) makes an assertion concerning legal or factual matters at a trial or a preparatory hearing (such as non-existence at the scene, insanity, or mental weakness), the prosecutor can demand discovery of documents to support that assertion. If a criminal defendant (or his counsel) rejects a demand for discovery, the prosecutor can petition the court to allow the inspection, copying, or delivery in writing of such documents.

Special rules/considerations

19. Are there any special rules or considerations concerning the disclosure of documents in criminal tax litigation?

Tax evasion is established by an investigation (conducted by the tax office, such as a tax investigation or tax offence investigation, or by an investigative institution, such as the prosecution), and the method by which evidence is verified does not vary from that employed in any other criminal case. If a suspect conceals any secret books containing the details of the transactions actually made, or details relating to financial transactions are required, it is customary to secure the those details by making a seizure or search under the Criminal Procedure Act.

The prosecutor can, if deemed necessary for a criminal investigation, make a seizure, search or verification with a warrant issued by a judge of the competent district court upon request of the prosecutor. This can only be done if there are circumstances to suspect that a defendant has committed a crime, and the relevance to the case concerned is acknowledged. In this case, the prosecutor can seize documents contrary to the wishes of the defendant.

 

Witness evidence

Trial considerations

20. Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a right to cross-examine witnesses of fact?

Civil law

In civil proceedings, the interrogation of a witness is conducted in the following ways:

  • Submission of witness statements.

  • Submission of witness examination requests.

  • Testimony in writing.

As a result, both written and oral testimony is possible.

The court can, if deemed necessary for the efficient examination of a witness, order the party who has made a motion for examination of a witness to submit witness statements. If it is deemed unreasonable to give such an order, the court can order the party to submit witness examination requests. If witness statements or witness examination requests are submitted, the witness is required to appear in court and provide testimony.

A witness is examined first by the party who requested the examination of the witness, and then cross-examined by the other party, and then again by the requesting party. The presiding judge can, in principle, examine the witness after the examination by both parties is complete.

If deemed reasonable (taking into account the witness involved and the matters to be attested), the court can have a witness submit information regarding the matters under examination, as opposed to having the witness physically present in court to provide testimony. Under such circumstances, the information submitted to the court has effect as testimony by being presented on the pleading date.

Criminal law

In criminal proceedings, the interrogation of a witness is conducted by examining the witness, and the witness appears in court and provides testimony during the examination. It is not possible to provide witness testimony in writing in substitution for attendance.

As in civil proceedings, a witness is examined first by the party who requested the examination of the witness, and then cross-examined by the other party, and then again by the requesting party. The presiding judge can, in principle, examine the witness after the examination by both parties is complete.

Witness preparation

21. Provide a brief outline of the procedure for preparing witnesses in both civil and criminal cases. Are there any special or unique features to consider for witness evidence in criminal cases?

Civil law

A party to a trial can make a motion for examination of a witness by filing a written application specifying:

  • The name, address, contact information and occupation of the witness.

  • The relationship between the party introducing the witness and the witness.

  • The details on how the witness was involved in, or became aware of, the case concerned.

The court decides whether to admit the witness with respect to whom such a motion has been made, and notifies both parties of the method for examination of the witness after making a choice from the following methods:

  • Submission of a witness statement.

  • Submission of witness examination requests.

  • Testimony in writing.

If a party has been ordered to submit a witness statement, that party should submit, within the period set out by the court, a witness statement specifying, in chronological order, the matters that the witness will testify about, with the signature of the witness affixed and a copy (which are then served by a court official to the other party prior to the date of examination of the witness). If a party submits a witness examination request, that party should submit, within the period set out by the court, a document containing the matters to be examined (which is served by a court official to the other party prior to the date of examination of the witness).

Finally, if the court orders a witness to provide testimony in writing, the court should notify the witness:

  • Of the matters to be examined (as submitted by both parties).

  • Of the fact that the witness should appear in court if the court makes such a request.

  • The time limit for submission of the written testimony.

The witness should submit to the court a document containing the matters that he seeks to testify after affixing his signature to that document.

Criminal law

If the prosecutor or the criminal defendant (or his counsel) has motioned the court to examine a witness, the court will decide whether to accept that motion. Even where no motion has been filed, the court can ex officio decide to examine the evidence. The presiding judge can order the person who has requested the examination of the witness to submit a written list of the matters for prior examination, if this is deemed necessary to prevent the disclosure of personal information, or to protect the safety of the victim or witness.

Unlike in civil proceedings, in criminal proceedings witnesses have the right to refuse to provide testimony. If a witness is present at the court, the presiding judge is required to confirm the identity of the witness and must:

  • Warn the witness (who will take an oath) about the punishment for perjury.

  • Explain to the witness his right to refuse to testify before examining the witness.

Hearsay evidence in civil and criminal trials

22. Are there any rules concerning the introduction of hearsay evidence in civil and criminal trials?

Civil trials

The Civil Procedure Act approves the principle of free evaluation of evidence and there is no restriction of the admissibility of evidence (except for certain exceptions under the Act). Contrary to the Criminal Procedure Act, the Civil Procedure Act does not contain any provision specifically restricting the admissibility of hearsay evidence, and hearsay evidence is admissible.

Criminal trials

The Criminal Procedure Act restricts the admissibility of hearsay evidence in principle, but acknowledges exceptions under strict conditions. The admissibility of hearsay evidence is acknowledged on the premise that a high level of veracity is guaranteed by all the circumstances to the extent that:

  • No cross-examination is required.

  • It is necessary to use the hearsay evidence because it is impossible or obviously difficult to have the person who made the original statement attend the trial and make the statement again.

  • The hearsay evidence has been prepared in compliance with due process and in the proper manner.

Documentary hearsay. In the case of documentary hearsay, what matters most in practice is the treatment of protocols prepared by the investigative institutions. The following protocols will be admissible:

  • A protocol concerning the interrogation of a criminal defendant, prepared by a prosecutor, is admissible as evidence, provided that either:

    • the criminal defendant admits in his pleading (at a preparatory hearing or during trial) that its contents are the same as he stated; or

    • it is proved by means of video records or any other objective means that its contents are the same as the criminal defendant stated.

  • A protocol concerning the interrogation of a criminal defendant, prepared by a senior judicial police officer, is admissible as evidence, if the criminal defendant admits at a preparatory hearing or a trial that its contents are true.

  • A protocol concerning a statement of any person (other than the criminal defendant) is admissible as evidence, provided that:

    • it is proved by a statement made by the person making the original statement in a preparatory hearing or a trial, or any objective means, that the contents of the protocol are the same as what he stated; and

    • the criminal defendant (or his defence counsel) had an opportunity to examine the person making the original statement in relation to its contents at a preparatory hearing or a trial.

Hearsay statements. A hearsay statement is admissible as evidence if the statement was made in a particularly reliable state and it contains a statement by the criminal defendant. However, where it contains a statement by any person (other than the criminal defendant), it is admissible as evidence only if, in addition to the above, the person who has made the original statement is unable to make that statement in court because that person is dead, ill, or resides abroad.

 

Expert evidence

Expert reports in civil trials

23. What are the rules concerning the introduction of expert reports in civil trials?

A party to a trial can apply for witness testimony by submitting a written application setting out the purpose of such substantiation and the matters with respect to which a witness testimony is to be made, along with documents specifying the matters with respect to which the party seeks this testimony.

The court can ex officio order expert witnesses to provide expert testimony. If the court determines that expert testimony is required, the court will adopt the expert testimony procedures, determine the subject matter and designate an expert witness.

The presiding judge can have expert witnesses state their opinions either in writing or orally, and in practice, such witnesses normally submit their opinions in writing, which is referred to as a written expert testimony. If any contradictory or unclear matters are found in the written expert testimony, the court can have the expert witness attend the court hearing to be examined.

Expert evidence in civil trials

24. What are the rules concerning the introduction of expert evidence in civil trials?

Where the expert witness provides his opinion orally as opposed to in writing, it will take the form of an examination of the witness, and the provisions relating to witness examinations are applicable to the designation of due dates, requirement for attendance and the method for examination (see Questions 20 and 23).

Expert evidence in criminal trials

25. What are the rules concerning the introduction of expert evidence in criminal trials? Is it possible to introduce expert reports?

Expert evidence

In criminal cases, expert evidence is required only to be submitted in writing and no oral evidence is required to be admitted.

Expert reports

Except as specifically provided for in the Criminal Procedure Act, the legal provisions relating to witness examination also apply to expert reports (see Question 20). The court can decide whether to introduce expert evidence upon the request of a party or ex officio and can designate an expert witness. The expert witness must submit to the court the process or result of the expert evidence in writing. If such evidence is submitted to the court, the court can require the expert witness to explain the expert evidence to the court.

Special considerations

26. Are there any special considerations for introducing expert evidence/reports in both civil and criminal trials?

Civil trials

As with other evidence, whether the result of expert evidence is admitted as evidence is left to the discretion of the judges. In this regard, according to precedents of the Supreme Court, the result of expert evidence should be respected unless it is against empirical rules, unreasonable or obviously erroneous. However, the court is not bound by such rules and has the discretion to make this determination.

Criminal trials

As expert evidence is treated on equal terms as statements prepared by any person other than the defendant, such evidence should be admissible as evidence to the extent the document contains the handwriting, or the signature or seal, of the person who prepared it, and if the authenticity of its formation is proved by a statement made by the expert witness at a preparatory hearing or during trial.

 

Closing the case in civil trials

27. What are the rules governing the submission of both written and oral argument in closing a civil trial?

A party can present his opinion by making oral statements on the pleading date or preparatory pleading date or by submitting briefs, which specify the statements to be made in his pleading. The Civil Procedure Act is based on the principle of oral examination and prescribes that pleadings made in writing should be supplementary. In practice, oral examinations in South Korea are becoming more common. Accordingly, even though a party to litigation has submitted to the court a brief specifying his arguments, the brief cannot be relied upon as reference for judgment in the case unless those arguments have been stated during the pleading process.

The presiding judge makes a decision on whether to close pleadings and arguments after completion of his examination. Once pleadings and arguments are closed, the judge provides the parties (or their counsel) with an opportunity to make a final statement and then provides his judgment.

 

Closing the case in criminal trials

28. What are the rules governing the submission of both written and oral argument in closing a criminal trial?

Upon completion of the required examination of evidence and the defendant in the trial, the prosecutor and the defendant (or his counsel) is given an opportunity to make a statement before the pleadings and arguments are closed. Once pleadings and arguments are closed, no new pleadings or examination of evidence can be allowed unless pleadings are re-opened.

 

Decision, judgment or order

Civil law cases

29. What are the rules governing the issuance of a decision in civil cases?

With respect to the issuance of a decision, the court is required to clearly state:

  • The claims asserted.

  • The positions of each of the parties.

  • A detailed reasoning of the court in issuing the judgment.

Therefore, judgment by the court can only be omitted in respect of an insignificant matter (such as an argument which does not have any influence on the ruling). When the grounds for a judgment are not clarified, or there exists a contradiction in such grounds, such decisions can serve as grounds for appeal to the Supreme Court. When judgment has been omitted in respect of an important matter which may have affected the judgment, such omissions can constitute grounds for a re-trial. However, no party has the right to demand that the court provide full findings and grounds for a judgment.

In principle, a judgment is required to be pronounced within two weeks from the day on which pleadings and arguments are closed, and even in complex cases or when there exist any other special grounds, the issuance of a judgment cannot exceed four weeks from the day on which pleadings and arguments are closed.

The presiding judge is required to pronounce a judgment by reading the text of the decision under the order of judgment, and if deemed necessary, the judge can also briefly explain the grounds for issuing such order.

Criminal law cases

30. What are the rules governing the issuance of a decision in criminal cases?

In pronouncing the defendant guilty, the following matters must be clearly indicated in the judgment:

  • The facts constituting the offence.

  • A summary of the evidence.

  • The applicable statutes.

When an oral statement has been made concerning the legal grounds barring the formation of the offence, or concerning facts which provide a reason to either increase or diminish the penalty, that must be clearly stated in the judgment.

The sentence (where the defendant is found guilty) must be pronounced on the day on which pleadings and arguments are closed. In extraordinary circumstances, the sentencing date can be set within 14 days after the closing of pleadings and arguments.

 

Costs

31. How is the issue of costs determined in both civil and criminal cases?

Civil law

The final judgment by the courts includes a decision on the allocation of costs of the proceedings.

Attorneys' fees are reimbursed only to the extent permitted by Supreme Court regulations. A full recovery of attorneys' fees is not generally possible.

Litigation costs in principle are borne by the unsuccessful party. In a partial victory, the court has the discretion to decide the ratio or amount of litigation costs that the respective parties must pay.

The court does not award any interest on the costs of an action incurred by a party.

Criminal law

In pronouncing a sentence, the court requires that the criminal defendant bear the whole or part of the trial costs, but this does not apply where the criminal defendant fails to pay the trial costs due to his financial circumstances.

Where only a prosecutor has filed an appeal and the appeal has been dismissed, the criminal defendant is not required to bear the costs of the litigation.

If a judgment of acquittal is finally affirmed, the state is liable for the expenses incurred by the person who was a criminal defendant in the relevant case for defending his case.

 

Appeals

Right to appeal in civil law

32. What are the main grounds for appealing a civil law decision?

There are no restrictions on the grounds for appeal on a decision of first instance and the grounds for appeal can include appeals on the law and also against the facts.

Procedure to appeal in civil law

33. What is the procedure for appealing a civil law decision?

There are no requirements to seek permission for appealing a civil law decision.

Revenue stamps with a face value of 1.5 times the value for the first trial must be attached to a statement of claim to the appellate court, and revenue stamps with a face value of two times such value must be attached to a statement of claim to the Supreme Court.

An appeal must be made within 14 days from the date of service of the judgment. Once this time period has elapsed without an appeal being filed, the judgment becomes final and binding.

The procedures for an appeal are as follows:

  • Submission of a petition of appeal to the court of first instance and examination.

  • Submission of a statement of reason for the appeal.

  • An appellate trial and final judgment.

  • Submission of a petition of appeal to the Supreme Court and examination.

  • Delivery of the record of litigation to the court of final appeal and notification of the receipt.

  • Submission of a written statement of the grounds for appeal to the Supreme Court within 20 days from the date of such notification.

  • Examination of the requirements for appeal to the Supreme Court and the grounds for proceeding with the proceedings.

  • A trial on appeal to the Supreme Court and final judgment.

Right to appeal in criminal law

34. What are the main grounds for appealing a criminal law decision?

The defendant can lodge an appeal only if the decision of the court of first instance is against the defendant. In that respect, the defendant does not have the right to lodge an appeal to modify a judgment made in his favour into one against him.

The defendant can only lodge an appeal on matters of law.

Procedure to appeal in criminal law

35. What is the procedure for appealing a criminal law decision?

An appeal is made by submitting a petition of appeal to the original court within seven days from the date of pronouncement or notification of the judgment.

 

Recent civil law developments and proposals for reform

36. Outline the main recent civil law developments in tax litigation in your jurisdiction. Are there any proposals to reform civil law tax litigation?

There are no relevant proposals for reform.

 

Recent criminal law developments and proposals for reform

37. Outline the main recent criminal law developments in tax litigation in your jurisdiction. Are there any proposals to reform criminal law tax litigation?

There are no relevant proposals for reform.

 

Online resources

National Law Information Centre

W www.law.go.kr/main.html

Description. This is a site containing all relevant laws of South Korea maintained by the Ministry of Government Legislation. It contains up-to-date laws in the Korean language.

Statutes of the Republic of Korea

W http://elaw.klri.re.kr/eng_service/main.do

Description. This is a site containing English translations of major South Korean laws. This is an unofficial site maintained by the South Korea Legislation Research Institute.



Contributor profiles

Wu Cheol Song, Partner

Bae, Kim & Lee LLC

T + 82 2 3404 0182
F + 82 2 3404 7686
E wucheol.song@bkl.co.kr
W www.bkl.co.kr

Professional qualifications. Attorney, Republic of Korea, 1987

Areas of practice. Administrative law; tax litigation

Recent transactions

  • Acted as counsel to CJ Korea Express, the largest Korean logistics company, in its appeal of a KRW16 billion tax imposition regarding the transfer of shares to its affiliate at above-market prices. The Supreme Court determined in favour of the client in this matter.
  • Acted as counsel to Korail in its administrative court appeal for corporate income tax refund in connection with a development project that was cancelled along with the sale of land and purchase contract. The refund claim for corporate income taxes was approximately KRW880 billion and arose from the refusal by the tax authorities to acknowledge that fluctuations in profit and loss due to contract cancellations are not acceptable grounds for claiming a tax refund. The administrative court ultimately decided in favour of Korail.

Languages. Korean, English

Professional associations/memberships. Korean and Seoul Bar Associations

Publications

  • "Withdrawal of Action and Counteraction", section in Commentary on Civil Procedure Act IV (Judicial Administration Society, 2012).
  • "Tax Law Issues in Relation to Merger" (Collection of Judicial Dissertations, Vol 33).

Il Young Cho, Partner

Bae, Kim & Lee LLC

T + 82 2 3404 0545
F + 82 2 3404 7686
E ilyoung.cho@bkl.co.kr
W www.bkl.co.kr

Professional qualifications. Attorney, Republic of Korea.

Areas of practice. Tax litigation

Non-professional qualifications. Korea University (LLB)

Recent transactions

  • Acted as counsel to Natura Metal Inc in its appeal against a value-added tax imposition regarding waste copper. The tax authorities rejected the input VAT invoices of the client on the basis of discrepancies found between actual supplier and invoicing supplier. The administrative and appeals court ultimately found in favour of the client.
  • Acted as counsel to Shinhan Bank in its request of adequacy of tax imposition to the National Tax Service in regards to the pre-imposition notice issued in the amount of KRW160 billion for payment of brand royalties to affiliates.
  • Acted as counsel to UBS Securities Limited (Seoul branch) in its appeal of corporate income tax imposition regarding the issue of substance over form involving the issuance of structured financial products. The administrative court issued a decision in favour of the client and cancelled the imposition amounting to approximately KRW15 billion.
  • Acted as counsel to KT Corporation in its appeal of a VAT assessment on the discount sales of cell phones to customers subscribing to the KT mobile services. The Supreme Court issued a decision in favour of the client and cancelled the imposition amounting to approximately KRW120 billion.

Languages. Korean, English

Professional associations/memberships. Korean and Seoul Bar Associations

Publications

  • "Whether or Not Subparagraph 1 of Article 57(2) of the Former Version of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is Invalid", Judicial Justice: published in commemoration of appointment of Yong Hun Lee as Chief Justice of the Supreme Court (Jurisdiction Development Foundation, 2011).
  • "Whether or Not Article 11 of the Former Version of the Punishment of Tax Evaders Act is Applicable to Persons Responsible for Special Collection of Slaughter Tax under the Local Tax Act", Judicial Justice: published in commemoration of appointment of Yong Hun Lee as Chief Justice of the Supreme Court (Jurisdiction Development Foundation, 2011).
  • "If Access Road to Golf Course Is Constructed and Given to Local Government Free of Charge, Whether or Not the Costs of Purchase of the Site and Construction of Road Fall in Capital Expenditures Regarding the Site of the Golf Course", Commentaries on Supreme Court Decisions No 76 (Supreme Court Library, 2009).
  • "Whether or Not Auctions are Included in Transactions Made for a Consideration between Individuals under Article 273-2 of the Former Version of the Local Tax Act", Commentaries on Supreme Court Decisions No 76 (Supreme Court Library, 2009).
  • "Existence of Special Conditions under which the Act by the Representative Director, etc, Who Practically Manage a Corporation of Appropriating Funds of the Corporation Constitutes Disbursement of Funds and is Not Regarded As Outflow of Income from the Corporation", Commentaries on Supreme Court Decisions No 78 (Supreme Court Library, 2009).

Cheol Hyung Yu, Partner

Bae, Kim & Lee LLC

T + 82 2 3404 0154
F + 82 2 3404 7686
E cheolhyung.yu@bkl.co.kr
W www.bkl.co.kr

Professional qualifications. Admitted to the Bar, Korea; Certified Public Tax Accountant; Patent Attorney.

Areas of practice. Litigation; tax

Non-professional qualifications. Seoul National University Law School (LLB); Seoul National University Graduate School of Law (LLM)

Recent transactions

  • Represented GS Caltex in its tax appeal of corporate income tax imposition of approximately KRW70 billion to the Administrative Court. This case was significant as it raised keen social interest stemming from opposing views on the effectiveness of repealed laws between the Constitutional Court and Administrative Court.
  • Acted as counsel to SK Telecom in its appeal of a tax imposition in the amount of approximately KRW9.5 billion regarding the deduction of R&D costs incurred by a third party entrusted by handling R&D. The Supreme Court ultimately decided in favour of SK Telecom and recognised such deductions as tax-deductible expenses.
  • Acted as counsel to OB Beer in its distribution of dividends to a domestic corporation, which was assessed taxes of approximately KRW180 billion on the basis of the assertion that the beneficial owner of the dividends was an offshore entity. BKL was successful in appealing this matter at the Tax Tribunal level.
  • Acted as counsel to Shinhan Bank in its court appeal of the comprehensive real estate tax imposition

Languages. Korean, English

Professional associations/memberships

  • Korean and Seoul Bar Associations.
  • Korean Association of Certified Public Tax Accountant.
  • Korea Patent Attorney Association.
  • International Fiscal Association.

Publications

  • Review of Major Issues relating to Taxation of Illegal Income (Tax Affairs and Accounting Study No 7, June 2015, Joint Research).
  • Supply of Advertising Services for Foreign Advertisers and the Tax Rate of Zero Percent (Selected Tax Precedents 2, May 2015).
  • Assignment of Buildings and Supply of Goods under the Value-Added Tax Act (Selected Tax Precedents 2, May 2015).
  • Analogical Application of the Provisions of Article 61 of the Old Enforcement Decree of the Value-Added Tax Act upon Cross-Ownership of Taxable and Non-taxable Businesses (Selected Tax Precedents 2, May 2015).
  • Legal Characteristics of the Provisions on Collection over Transactions under the Value-Added Tax Act (Selected Tax Precedents 2, May 2015).

Maria Chang, Foreign Attorney

Bae, Kim & Lee LLC

T + 82 2 3404 7589
F + 82 2 3404 7686
E maria.chang@bkl.co.kr
W www.bkl.co.kr

Professional qualifications. Attorney, Ohio, 2006

Areas of practice. International tax; tax appeals; customs and trade

Languages. Korean, English


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