[Environment] Barun Law represents Korea Gas Corporation in a fishery damage case and wins the case after a 10-year battle
1. Overview of the Case
When KOGAS constructed an LNG production base, it fully compensated nearby fishermen for damages. Nevertheless, fishermen who were not affected by the LNG plant because they were residing far away from the plant demanded compensation for fishery damages. We represented KOGAS in this case.
2. Our argument and role
In fishery compensation cases such as this one, an appraisal is usually conducted upon the request of the plaintiffs, who are fishermen. Once the appraisal is completed, the defendant refutes the appraiser's findings through factual inquiries. Most appraisers will staunchly defend their findings unless there is an obvious miscalculation. Tribunals often accept the results and conclude the case.
Our strategy was to put an end to the practice of inciting fishermen to sue even though they had no actual damages, and to respond vigorously to ensure that only actual damages were awarded. We strongly argued that the plaintiffs' appraisals were not sufficient to determine the exact cause of the damage. We requested to independently conduct a appraisal from the plaintiffs. When multiple appraisals are conducted by different appraisers on the same matter, the tribunal has to select one of the results and reject the others. Because of the difficulty in determining this, there are not many examples in practice of tribunals adopting separate appraisals by different appraisers. However, we strongly argued that the defendant’s independent appraisal should be adopted, and in the end, both the appraisals of the plaintiffs and the defendant were adopted.
The two parties produced different appraisal results. We analyzed the voluminous appraisal reports with our appraiser to point out the causes and reasons why the plaintiffs’ appraisal was wrong. We vigorously defended the validity of the defendant's appraisal. In addition, the plaintiffs failed to specifically identify those who could claim fishing compensation. Instead the plaintiffs, we summarized the relevant legal principles through fishery compensation cases. We applied for fact-finding to the relevant authorities and reviewed several fact-finding responses, including the registers of more than 300 fishermen, in two or three rounds. Eventually, we found that out of the 300 fishermen who filed the lawsuit, only about 50 fishermen were eligible for compensation.
3. Judgment and implications
The first instance court rejected all of the plaintiffs' causation findings, even the findings regarding the amount of compensation, and accepted our arguments and dismissed all of the plaintiffs' claims. The appellate court also rejected all of the plaintiffs' claims and dismissed their appeal. This resulted in a victory for the defendant after a decade-long battle.
This case is significant in that it shows that in fishery damage cases filed by fishermen, it is not possible to receive a certain amount of compensation just based on mechanical appraisal results by simply filing a lawsuit, but there will be monetary compensation only when actual damages are recognized.
□ Attorneys in charge : Chung In-jin and Kim Ji-hee
2023. 11. 29
[Family] Barun Law represents a husband in a divorce action brought by his wife, who is 17 years younger than him, alleging that the marital life is boring
1. Case summary
The wife, who is 17 years younger than her husband, filed for divorce after 7 years of marriage, claiming that life with her husband was not interesting any more. It was difficult to point out the plaintiff's fault for the end of marriage. The husband was not at fault for the breakdown of the marriage. However, in order to exclude the establishment of a divorce based on the marriage breakdown theory, we argued for a parody of “expulsion divorce”, which resulted in the plaintiff's divorce claim being rejected.
2. Which party did Barun Law represent?
We represented a husband who was sued for divorce.
3. The content of litigation and our role
The wife filed for divorce after seven years of marriage, claiming that her husband had lied about his age before they got married. It was difficult to argue that the wife was to be blamed for the breakdown of marriage, and the husband was not at fault for the divoce. It was a situation where the divorce claim could be granted according to the doctrine of matrimonial breakdown. Korean law prohibits “expulsion divorce”, where a husband kicks out his wife. We argued that this prohibition should apply to not only a husband intending to expel his wife, but also a wife who wants to expel her husband, in accordance with the principle of gender equality. Accordingly, we convinced the court to dismiss the plaintiff's divorce claim.
The general consensus is that it is still not permissible for a faulty spouse to file for divorce against a non-faulty spouse. However, given that the doctrine of marriage breakdown tends to be accepted, there is a dangerous situation where one spouse's claim for divorce against the other spouse may be granted if both parties are not responsible for the breakdown of marriage. We have parodied the spirit of the “no expulsion divorce” rule that has long been applied in Korean law by replacing the husband for the wife, and eventually were able to protect the husband from the adoption of the doctrine of marriage breakdown.
□ Attorney in charge : Song Bong-jun
2023. 11. 29
[Financial Advisory] Barun Law represents a KOSDAQ-listed company that was at risk of delisting due to 15 penalty points for disclosure reversals and failure to disclose and helps the company keep the listing status
1. Overview of the Case
The client company decided to issue CBs and BWs in the amount of 210 billion won to promote and invest in new businesses. However, an investor failed to make the payment. The client disclosed the change of investors and the change in the purpose of use of the funds. The client was forced to withdraw the issuance of CBs and BWs after consultation with the Financial Supervisory Service and the Korea Exchange due to the unexpected filing of a lawsuit for a management rights dispute (3 withdrawals of CB issuance decisions and 4 withdrawals of BW issuance decisions).
In addition, the petitioner unilaterally submitted a motion to withdraw the lawsuit in the middle of the management rights dispute litigation. The court proceeded with automatic service of process and notified the legal counsel. The client was late in disclosing the "Judgment and Decision on Litigation (Invalidation of Rights Issue)".
The client appointed another law firm to handle the delisting process, and then asked us for further advice.
2. Summary of our advice
Under the leadership of the head of the Delisting TF at the firm, who is also a member of the Listing Disclosure Committee of the Korea Exchange Securities Market, we provided the following advice to the client:(1) Regarding disclosure reversals, the client made its best efforts to pay for the subscription of CBs and BWs even in the event that existing investors were unable to pay; withdrawal of the issuance of CBs and BWs was the most reasonable decision in accordance with the guidelines of the Financial Supervisory Service; and the three withdrawals of CB issuance decisions and the four withdrawals of BW issuance decisions are similar and connected disclosures, so it would be harsh to impose penalty points individually.(2) Regarding the failure to disclose, while emphasizing the fault of the legal counsel, we wrote an additional opinion stating that the client who did not receive the notice could not take any action and was therefore not culpable (there was no intentional gross negligence). This opinion letter was submitted to the department in charge at the Korea Exchange. We advised the client to appear and speak truthfully before the KOSDAQ Corporate Review Committee.
3. Summary and significance of the advisory result
As a result of our additional opinion letter being submitted to the Korea Exchange, the client's representatives made a sincere plea of innocence and received a penalty of 14.5 points for disclosure reversals and failure to disclose. The client was able to avoid the delisting penalty by 0.5 points. - In order to protect investors and restore market integrity, KOSDAQ has very strict standards for restatements and failures to disclose, and uses external members with specialized expertise to decide whether to impose penalty points or delist. In this case, the client was able to avoid delisting by seeking advice from a law firm with special expertise in addition to a law firm taking care of documentation.
□ Attorney in charge : Cho Jae-bin
2023. 11. 29
[Intellectual Property] Barun Law successfully defends the client in a case involving the interpretation of the scope of claims regarding the configuration of a utility model not defined in the specification
1. Overview of the case
A company ("Company K"), which owns a utility model for a case cover for wireless earphones (the "utility model"), filed a lawsuit against a company infringing the utility model for an injunction of infringement and damages. In response, the defendant requested the Korean Intellectual Property Tribunal for a trial to confirm the scope of rights, stating that its product, i.e., the design subject to confirmation, does not fall within the scope of rights held by the utility model.
2. Issues in the case
The issue was whether the design subject to confirmation contains the "upper cover body with a certain curvature" configuration, which is one of the configurations of the utility model.
3. Our role
Representing Company K, we argued that the design subject to confirmation had all the configurations of the utility model and that the two designs were at least equal. In particular, the term "certain curvature" was not specifically defined in the specification of the utility model, which was a major problem in interpreting the scope of claims. Based on the basic legal principle that the scope of claims should be interpreted in light of the description and drawings, we comprehensively emphasized the dictionary meaning of "constant", the problems of the prior art described in the specification, the function and effect of the utility model, and the description in the embodiment and drawings. We argued that "constant curvature" does not mean a curvature that has the same value at any point on a curved surface (such as the curvature of a sphere), but should be interpreted as a curvature that has a fixed value that does not change at any point, and that the design subject to confirmation is therefore equipped with an upper cover body having the "constant curvature".
4. Judgment of the KIPT
After hearing the case for more than a year, the KIPT accepted our arguments and determined that the design subject to confirmation contained the configuration of the utility model as it was, and was therefore identical or equal to it, and thus fell within the scope of the relevant rights (KIPT Decision 2022Dang 2685).
If the specification of a utility model (patent) does not clearly define certain configurations in the scope of claims, the interpretation of the scope of claims is bound to become an issue. The infringement status may be completely different according to the definition of configurations. Thus, it is very important to carefully analyze the entire specification and drawings to derive a reasonable interpretation of the claims disclosed by the applicant.□ Attorneys in charge : Park Je-hyeoung, Jung Young-hun, and Nam Yeon-jeong
2023. 11. 29
[Criminal] Barun Law obtains suspended sentences for defendants who were accused of receiving more than KRW14 billion in gambling funds and managing gambling proceeds
1. Overview of the case
① Barun Law defended a defendant A who was responsible for managing the gambling proceeds by receiving reports on the details of recharging and exchanging gambling money at a gambling website, and defendants B and C in charge of recharging and exchanging gambling money at the gambling site.
② Background of the case: At the recommendation of D, whom A met while working at a cell phone store in the past, A was responsible for receiving reports on the details of recharging and exchanging gambling funds on the gambling site and managing the proceeds for about a year from around March 2015, recruiting acquaintances to carry out gambling money recharging and exchanging activities at the gambling site, and procuring daily necessities. During the period when A was involved in operating the gambling site, the total amount of money remitted by members on the gambling site amounted to KRW14,151,686,828.
B and C are acquaintances of D. B, at the recommendation of D, and C, through B, participated in the operation of the gambling site and engaged in recharging and exchanging gambling funds for approximately 1 year from around March 2015, and for approximately 4 months from around July 2015, respectively.
Meanwhile, other accomplices E and F, who participated in the operation of the gambling site and were in charge of recharging and exchange gambling money, were already sentenced to one year in prison prior to this ruling. In light of the relevant precedents, there was a very high risk that defendants A, B, and C would be sentenced to prison.
2. Contents of the judgment [Uijeongbu District Court Goyang Branch Decision 2023Godan1228, dated October 19, 2023]
The court found the defendants guilty on all counts. However, in light of the findings that the defendants generally admitted their crimes, had no past criminal record of being punished for the same crime, participated in the crime under the condition of receiving a monthly salary, and it did not appear that they were in the position of being distributed criminal proceeds or executing the operation of the gambling site, the court sentenced the defendant A to 3 years in prison and 5 years of probation, the defendant B to 2 years in prison and 3 years of probation, and the defendant C to 1 year and 2 months in prison and 3 years of probation.
3. Our role
Initially, the investigative agency believed that defendant A had a position close to the operator of the gambling site. However, we carefully reviewed the evidence submitted by the prosecutors and determined that ① the informant's tip, which was the starting point of the investigation, was not credible and ② circumstances surrounding the upload of materials (i.e., the account statements of gambling funds that were uploaded onto the webhard and gambling money recharging and exchanging information) that allegedly served as the basis for pointing out defendant A as the operator of the gambling site were unclear. We also refuted that ③ the person on the gambling site whom the investigators designated as defendant A was not in fact defendant A. We convinced the court to have reasonable doubt about the degree of defendant A's participation in the alleged crime and that he did not fall under the “main culprit.” In addition, we pointed out that ⑥ the proceeds of crime were not specified and there was no evidence to suggest that the defendants were distributed the proceeds of crime. ⑦ Carefully collecting and reviewing sentencing precedents favorable to the defendants, we emphasized that this case was not a case that warrants a prison sentence.
4. Significance of the judgment
The accomplices who were tried first based on the same facts had already been sentenced to prison, but through our active defense activities, all defendants who were later indicted were sentenced to probation. This case is significant in that it shows a client's status can change depending on attorneys’ advocacy activities.
□ Attorneys in charge : Park Sung-ho, Choi Seung-hwan, Lee Yun-sang and Seo Jang-cheol
2023. 11. 29
[Estate Planning] A living trust in the form of a declaratory trust
1. Overview of the case
The client, who runs a corporation and owns a number of real estate properties, wanted to leave assets to his child in her 40s and minor grandchildren. However, the child was in divorce proceedings with her spouse and was in poor health. The client was concerned that if the child or grandchildren were to inherit the property, the child’s spouse, who is currently in divorce proceedings, would exercise control over the administration of the property to be inherited by the minor grandchildren. Against this background, the client was in need of specific estate planning.
2. Our role
We utilized a living trust in the form of a declaratory trust and a successive beneficiary trust. Under the trusts, the client’s child will be granted a beneficial interest, and the grandchildren will only receive income from the trust until they reach the age of majority, at which point they will inherit the underlying property of the trust. In this way, the client was able to specifically design his estate plan and address the concerns that would arise if the client's child dies.
A living trust can be a very beneficial way to overcome many of the limitations of the traditional inheritance system and to ensure that the inheritee’s wishes for the disposition of his or her property are carried out. However, the traditional living trust, in which a trust company is the trustee, created the burden of annual fees for set-up, execution and manage of the trust, and was often rejected by customers because they had to hand over the ownership of their property to the trust company. In addition, the Capital Market Act imposed various regulations on trust companies, which limited the freedom to design inheritance plans.
A living trust in the form of a declaratory trust retains the advantages of a trust as substitute for will, but since an inheritee himself/herself becomes the trustee, there is no need to pay fees for management of the trust. The ownership remains in the inheritee's name, and the trust is not subject to the Capital Markets Act, allowing for greater flexibility in trust design.
This case is significant because it demonstrates that a living trust in the form of a declaratory trust can be used to overcome many of the limitations of a traditional living trust in the form of a contractual trust.
□ Attorney in charge : Cho Woong-kyu
2023. 10. 31