1 INTRODUCTION TO THE LEGAL AND REGULATORY FRAMEWORK

There is considerable public interest in cryptocurrencies and blockchain in Korea.2 For example, on 16 January 2018, a petition to the President entitled Opposing Cryptocurrency Regulation garnered more than 200,000 signatures.3 On 14 February 2018, the government responded to the petition by stating that the transactional transparency of cryptocurrencies is of paramount importance to the government, but that it will also promote blockchain technology.

However, there is no coherent insight on how cryptocurrencies would be classified under Korean law. The Financial Supervisory Service issued a press release on 23 June 2017 where it announced its views on what cryptocurrencies are not from a financial regulatory perspective:4 namely, cryptocurrencies are not considered fiat currencies, prepaid electronic means or electronic currencies, or financial investment instruments. Unfortunately, the Financial Supervisory Service's press release does not provide any guidance on how cryptocurrencies are classified and in what legal form. In addition, cryptocurrencies are not insured by the Korean Deposit Insurance Corporation.5

The government is largely concerned with the protection of investors and consumers of cryptocurrency. It has shown particular concerns regarding cryptocurrency-related illegal activities, such as multilevel schemes and money laundering. At the same time, it has repeatedly stated that the regulation of cryptocurrency transactions does not signify endorsement or institutionalisation of cryptocurrencies.6

On the other hand, the Supreme Court of Korea ruled on 30 May 2018 that cryptocurrencies can be confiscated as criminal proceeds.7 This decision represents the first time the Supreme Court has recognised cryptocurrency as property. However, given the narrow scope of its interpretation, it is unclear what impact this ruling will have on subsequent cryptocurrency regulations in Korea.

Classification of cryptocurrencies from a legal perspective has just begun in Korea and will likely develop in the near future. Other Korean regulatory authorities may have a different view from the Financial Supervisory Service's announcement and the legal classification of cryptocurrencies. As a result, there is currently no law or clear guidance from any regulatory authority in Korea that provides clarity on the legal issues relating to cryptocurrencies and how they will be treated under Korean law.

ii SECURITIES AND INVESTMENT LAWS

The main legal framework governing securities and investment in Korea is the Financial Investment Services and Capital Markets Act (FSCMA). There is no existing regulatory regime or statute that incorporates cryptocurrency into Korean securities and investment laws.

The FSCMA defines securities as:

financial investment products for which investors do not owe any obligation to pay anything in addition to the money or any other valuables paid at the time of acquiring such instruments (excluding obligations to pay where an investor assumes such an obligation by exercising a right to effectuate the purchase and sale of an underlying asset), provided that there are certain securities, such as investment contract securities, which are only recognised as securities under the FSCMA when meeting certain conditions under the FSCMA.8

On the other hand, FCSMA defines financial investment products as:

a right acquired by an agreement to pay, at the present time or a specific time in the future, money or any other valuables, for the purpose of earning a profit or avoiding a loss, where there is a risk that the total amount of such money or any other valuables, paid or payable, to acquire such right (excluding any sums specified in the Enforcement Decree, such as sales commissions) may exceed the total amount of money or any other valuables recovered or recoverable from the right (including any sums specified in Enforcement Decree, such as termination fees).9

It is currently unclear whether cryptocurrencies qualify as securities or financial investment products under the FSCMA. In a series of press releases, Korean financial authorities have taken the position that cryptocurrencies or cryptocurrency assets are not a financial investment product under the FSCMA.10 However, these announcements were made in the context of cautioning potential investors, and thus do not adequately address whether cryptocurrencies qualify as financial investment products under the FSCMA.

There is no explicit prohibition on the registration of cryptocurrency-related investment funds. A licence must be acquired to provide advice on financial investment products in Korea. Since an investment fund's underlying asset need not be financial investment products under the FSCMA, an investment fund may in theory include cryptocurrencies or cryptocurrency assets as its underlying assets. However, it is unclear whether the Korean financial regulators will be receptive to such investment funds. To date, there are no cryptocurrency-based investment vehicles or funds registered with the Korean financial regulatory agencies.

On 1 September 2017, the Korean Financial Services Commission announced a ban on margin trading, prohibiting individuals from borrowing funds or cryptocurrencies from cryptocurrency exchanges in order to sell them.11 The Financial Services Commission has declared that such practice violates existing Korean lending and credit laws. It has further directed financial institutions to halt all transactions and partnerships that enable margin trading.

iii BANKING AND MONEY TRANSMISSION

On 4 September 2017, the Financial Services Commission announced that it would initiate an identification policy for accounts in cryptocurrency exchanges that requires cross-checking user names and account numbers. On 30 January 2018, the Financial Services Commission introduced the Real Name Verification System.12 Under the Real Name Verification System, users who want to make a cryptocurrency transaction must have a bank account under their real name at the same bank with the cryptocurrency exchange. Existing anonymous account users can only withdraw money and may not make any further deposits. The Real Name Verification System further bans minors (under the age of 18) and foreigners from opening new cryptocurrency accounts.

There are no explicit border restrictions or obligations to declare cryptocurrency holdings. However, for fiat currencies, the Foreign Exchange Transaction Act (FETA) and the Foreign Exchange Transactions Regulations (FETR) regulate the remittance of funds out of Korea to overseas accounts. Generally, there must be a legal basis, along with supporting documents as prescribed under the FETA, to repatriate funds overseas. Examples of a legal basis include loan repayments, dividend payments and sale proceeds payments. The FETA prescribes certain procedures and documents for each type of transaction listed in the FETA for both the remitter of funds and the bank handling the remittance. Each type of transaction has different procedures and requirements to remit funds overseas. Generally, under the FETA, all outbound remittance in an amount exceeding US$3,000 per transaction or a yearly aggregate limit of US$50,000 must be reported to and approved by the Bank of Korea.

There are no guidelines regarding cryptocurrencies under the FETA or the FETR. In practice, however, Korean banks decline to process wire transfers overseas when related to cryptocurrency trading, even if the amount is below the monetary limits and would not trigger the reporting requirements under the FETA.

iv ANTI-MONEY LAUNDERING

The main legal framework governing anti-money laundering in Korea is the Act on Reporting and Use of Certain Financial Transaction Information (AML Act). In addition, the Real Name Verification System seeks to prevent money laundering. The Korea Financial Intelligence Unit is primarily responsible for enforcing anti-money laundering obligations. Currently, cryptocurrency exchanges are not directly subject to anti-money laundering requirements under the AML Act. Instead, the financial regulators enforce anti-money laundering requirements through financial institutions that are linked with cryptocurrency exchanges. As noted above, there are proposed bills seeking to subject cryptocurrency exchanges to the requirements of the AML Act.

Financial institutions doing business with companies that handle cryptocurrencies are subject to Financial Intelligence Unit's Anti-Money Laundering Guidelines for Cryptocurrencies (AML Guidelines).13 The AML Guidelines cover:

  1. the identification of cryptocurrency exchanges;
  2. internal controls;
  3. the denial of transactions; and
  4. sanctions for violations of the provisions of the AML Guidelines.

The AML Guidelines further provide that the financial regulators may issue correction orders or business suspension orders pursuant to the AML Act if a financial institution violates a provision of the AML Guidelines.

The AML Guidelines initially took effect on 30 January 2018, with an applicable period of 12 months with the possibility of renewal. The AML Guidelines were amended on 26 June 2018 based on the inspection of three major banks in Korea. The amendment took effect on 10 July 2018, and applies for 12 months with the possibility of renewal. The amendment sought to strengthen financial institutions' monitoring of accounts used for purposes other than collecting funds for exchanges; share a list of identified foreign cryptocurrency exchanges; and notify reasons and specific time of denial of transactions. The notable provisions of the amended AML Guidelines are as follows:

i Requirement of real-name verification for fiat withdrawal from and deposit to cryptocurrency exchanges

Fiat withdrawals from and deposits to a cryptocurrency exchange are available only if the exchange user's bank account is verified under the Real Name Verification System provided by financial institutions (e.g., banks), as explained above. Financial institutions may decline transactions with cryptocurrency exchanges that do not comply with this requirement. The system also bans minors under the age of 18 and foreigners from opening new cryptocurrency accounts.

ii Due diligence process for customer identification

The AML Guidelines mandate that financial institutions adopt a process whereby they can identify if their clients are cryptocurrency exchanges or other cryptocurrency-related businesses. If a financial institution identifies a client as cryptocurrency-related business, it must verify certain additional information enumerated in the AML Guidelines. Examples of such additional information include whether the cryptocurrency exchange checks the identity of its users, maintains a separate transaction record for each user and is in compliance with the cryptocurrency-related policies issued by the government. In addition, financial institutions must perform additional checks every six months and share information with other financial institutions. Furthermore, financial institutions must refuse new transactions or promptly stop processing existing transactions if they cannot confirm the identity of a client.

iii Suspicious transaction reports

If transactions seem suspicious, financial institutions must review and file a suspicious transaction report. Financial institutions must also appoint a staff member dedicated to monitoring suspicious cryptocurrency transactions. Suspicious transaction types include:

  1. financial transactions between cryptocurrency exchanges and corporate entities or organisations;
  2. financial transactions between a cryptocurrency exchange and a single user where the amount of transactions is 10 million won or more within one day, or 20 million won or more within a seven-day period; and
  3. if the number of financial transactions between a cryptocurrency exchange and a single user reaches five times or more within a day, or seven times or more within a seven-day period.

V REGULATION OF EXCHANGES

In Korea, cryptocurrency exchanges do not have financial licences; nor are they subject to the AML Act. However, the various proposed bills pending at the National Assembly seek to require cryptocurrency exchanges to obtain financial licences and to impose anti-money laundering requirements directly on the exchanges.

Regulation of cryptocurrency exchanges in Korea primarily takes the form of self-regulation. The Korea Blockchain Association (KBA) is a trade association of cryptocurrency exchanges that self-regulates cryptocurrency exchanges.14 As KBA's regulation only binds its members, non-member exchanges would not be subject to KBA's regulation. As part of its self-regulation, KBA requires that member exchanges abide by the Commercial Act and maintain equity of at least 2 billion won. KBA also mandates that the exchanges deposit all of their monetary deposits at financial institutions and use cold storage for at least 70 per cent of their cryptocurrency deposits to protect investors' funds. Other areas that KBA's regulation mainly covers are:

  1. increasing the transparency of intial coin offerings (ICOs);
  2. strengthening the verification of account holders' identification;
  3. the operation of offline customer centres;
  4. strengthening the ethics of executives and employees; and
  5. the composition of independent committees on self-regulation.

On 16 April 2018, KBA announced plans to review its member cryptocurrency exchanges according to the self-regulation provisions.15 Upon review of 12 member exchanges, KBA announced on 11 July 2018 that all exchanges have met the minimum requirements of the self-regulation provisions.16

In addition, the government indirectly regulates cryptocurrency exchanges through existing laws. Since cryptocurrency exchanges are registered as corporations, they are subject to various cybersecurity and privacy laws that are also applicable to other corporations. The Ministry of Science and ICT has been focusing on the cybersecurity of cryptocurrency exchanges and it has reviewed the cybersecurity measures adopted by cryptocurrency exchanges since September of 2017, and has indicated that it will continue to do so throughout 2018.17 The Ministry of Science and ICT requires exchanges with total sales over 10 billion won and over one million daily visitors to acquire an information security management system pursuant to the Act on Promotion of Information and Communications Network Utilization and Information Protection. As of 2018, the four largest exchanges are subject to this requirement. The Korean Communications Commission has also expressed its intent to make smaller exchanges acquire personal information management systems (PIMS) accreditation and an ePrivacy mark. Currently, no statute mandates PIMS or ePrivacy marks, so companies voluntarily undertake receiving PIMS accreditation or an ePrivacy mark.

In addition, the Ministry of Science and ICT has stated that it plans to require cryptocurrency exchanges to register a chief information security officer (CISO) with the Ministry, which will cooperate with CISOs to minimise further damage in cases of hacking attacks or other cybersecurity threats. The Korea Internet and Security Agency also plans to monitor and promptly address the dissemination of malicious codes within, and distributed denial-of-service attacks against, cryptocurrency exchanges.

vi REGULATION OF MINERS

There is no law or regulation explicitly regulating mining of cryptocurrencies. However, based on statements from Korean financial regulatory authorities, it appears that mining itself may not be illegal per se. In a 22 June 2017 press release, the Financial Supervisory Service noted that retail mining would be unsuccessful due to limited computing power, which may imply that retail mining would not be illegal.18 Similarly, an Office for Government Policy Coordination press release issued on 22 December 2017 implies that mining itself would not be illegal.19 In that press release, the government noted that mining in industrial complexes while taking advantage of discounted electricity fees is illegal. The press release further stated that the Ministry of Trade, Industry and Energy has already requested local governments, the Korean Industrial Complex Corporation and the Korean Electric Power Corporation to monitor sudden spikes in electricity use, and that it will investigate industries that show sudden spikes in electricity use. These statements seem to imply that what is illegal is the misuse of discounted electricity, not mining itself.

vii REGULATION OF ISSUERS AND SPONSORS

A government task force on cryptocurrency, composed of, among others, financial regulators, foreign exchange regulators and tax regulators, issued a press release on 4 September 2017 entitled Status and Direction for Cryptocurrency.20 The press release states that the Korean regulators will penalise acts of ICOs as violations of the FSCMA where cryptocurrencies are issued in the form of securities, such as investment contract securities, and the issuer has not complied with the offering restrictions under the FSCMA. Although the Korean regulators' initial position was to penalise ICOs in the form of securities issuances (i.e., in cases where the token is classified as a security), the regulators subsequently took a stricter position in another press release on 29 September 2017, announcing their new policy that any types of ICOs (including those in the form of securities) would be prohibited.21

If coins or tokens qualify as securities under the FSCMA, then ICOs will be subject to offering or sales restrictions in Korea. Under the FSCMA, an offer or sale of securities to 50 or more non-accredited investors (excluding professional investors) would be regarded as a public offering and be subject to offering restrictions under the FSCMA. In a public offering of securities in Korea, an onshore or offshore issuer must file a securities registration statement for the securities to be offered in Korea with the Financial Services Commission.

In contrast, if coins or tokens are not securities under the FSCMA, then ICOs would not be subject to securities offering restrictions under the FSCMA, and there would be no grounds for the prohibition of ICOs unless such ICOs trigger a violation of other existing Korean laws or regulations. However, given the stance taken by the Korean financial regulatory authorities, it is possible that they would take an expansive view of the existing laws and regulations and cause difficulties for issuers.

Fundraising activities are subject to the Act on the Regulation of Conducting Fund-Raising Business Without Permission (Fund-Raising Business Act). The Fund-Raising Business Act prohibits guaranteeing a return of the original investment amount or an amount exceeding an original investment amount when raising funds.22 In addition, making any indication or advertising of one's business so as to carry on prohibited acts constitutes a violation of the Fund-Raising Business Act.23 Thus, when marketing or promoting an ICO, if an issuer promises a return of the original investment amount or an amount exceeding the original investment amount, such an issuer will likely be in violation of Fund-Raising Business Act. The regulatory authorities have indicated that they will seek to amend the Fund-Raising Business Act so that all cryptocurrency-related fundraising activities are violations of it. However, it is currently unclear whether such amendment would pass.

viii CRIMINAL AND CIVIL FRAUD AND ENFORCEMENT

Chapter XXXIX (Article 347 et seq.) of the Criminal Act governs fraud, whereas tort law under Article 750 of the Civil Act governs civil fraud. The government has been actively investigating and prosecuting fraud and other criminal acts related to cryptocurrency. For example, on 10 May 2018, the head of a multilevel scheme that advertised that the company turns profit by purchasing Bitcoins in countries with lower prices and selling them in countries with higher prices was convicted of fraud and sentenced to seven years in prison.24 Similarly, a board member of the company was convicted of the same crime and was sentenced to four years in prison. The company offered 20 per cent of the new investment amount from new participants to the referee participant and provided other incentives to participants who were successful in attracting more investments. The court stated that the company received funds by defrauding customers even though there was no guarantee of recovering the original investment. In addition, there also been investigations and prosecutions of fraudulent acts of cryptocurrency exchanges.

In a press release dated 28 December 2017, the government stated that it will continue to investigate and prosecute illegal acts related to cryptocurrency, and will seek to impose the maximum penalties allowed by the relevant laws.25 The government further announced that in 2018 it will focus on the following:

  1. multilevel fraud schemes and the undertaking of fundraising activities without permission;
  2. investment fraud related to cryptocurrency mining;
  3. violations of the FETA;
  4. concealment of criminal proceeds via money laundering, etc.; and
  5. illegal acts of cryptocurrency exchanges.

ix TAX

The Ministry of Strategy and Finance has announced that plans for the taxation of cryptocurrencies are being developed, but no decisions have been made. When the government introduced the Real Name Verification System on 30 January 2018, it listed data collection for taxation purposes as a benefit of the system, implying taxation. To date, however, the government continues to state that taxation is still under discussion, and no decisions have been made in this regard.

Meanwhile, the National Tax Service has published its preliminary assessment of taxation on cryptocurrencies following its annual forum in 2017.26 This assessment is not an official policy, but it is the only published position or research on cryptocurrency taxation by the government. The National Tax Service's assessment noted that cryptocurrencies are hybrid products that have characteristics of, inter alia, fiat, securities and goods. Based on this determination, the National Tax Service has made a preliminary assessment of taxation on cryptocurrencies under the existing tax laws as summarised in the table below:

Type Rate (%) Assessment Notes
Corporate income tax 11–27.5 Taxable under current law Need accounting standards for categorisation and valuation of cryptocurrency
Income tax 6.6–46.2 Taxable under current law Need accounting standards for categorisation and valuation of cryptocurrency
Corporate or individual VAT 10 Undecided If cryptocurrency is viewed as means of payment, then no tax; if cryptocurrency is viewed as goods, then levying VAT is advisable
Inheritance and gift tax 10–50 Taxable under current law Cryptocurrency is a property with economic value, and thus taxable; need valuation standards for cryptocurrency

In addition, the National Tax Service has noted that to increase transaction transparency transaction transparency and to prevent tax avoidance, strengthening the regulation of cryptocurrencies is required. As examples, the National Tax Service noted the introduction of a registration requirement cryptocurrency exchanges, the implementation of the Real Name Verification System, and the imposition of anti-money laundering requirements and reporting requirements on cryptocurrency exchanges.

x OTHER ISSUES

If the use of cryptocurrency increases in money laundering or for other criminal purposes, and in light of the Supreme Court's decision holding that the government may seize cryptocurrency as criminal proceeds, the seizure of cryptocurrencies may increase. Typically, seized properties are sold through public auction with the proceeds going to the government. The Korea Asset Management Corporation, which manages Onbid, a public auction system, has indicated that public auctions would be possible for cryptocurrencies, noting cryptocurrencies' similarities to securities.27 However, given the volatility of the price of cryptocurrencies, it may not be advisable to dispose of seized cryptocurrencies through a regular public auction process. The government has yet to decide how it will dispose of the cryptocurrencies seized in connection with the Supreme Court case.

Another issue that arises as the use of cryptocurrency increases is consumer protection. In Korea, the Act on the Regulation of Terms and Conditions (T&C Act) governs terms and conditions in contracts. The Korea Fair Trade Commission (KFTC) has indicated that placing limitations on the withdrawal of funds or having excessive waiver provisions may be a violation of the T&C Act.28 KFTC has indicated that it would issue corrective orders and impose penalties if necessary in cases of such practice.

On 5 April 2018, KFTC announced that it has reviewed terms and conditions of user agreements of 12 cryptocurrency exchanges.29 The review called for changes of 14 terms or conditions that KFTC has deemed unfair. Two of the changes were voluntary: the deletion of terms or conditions that allowed for the monetisation of cryptocurrencies of members who did not log in for six months or more; and the deletion or amendment of terms or conditions that allowed the indemnification of damages in cryptocurrency or won points, which is virtual won money in the accounts of users in cryptocurrency exchanges to purchase cryptocurrencies. In addition, KFTC issued corrective recommendations to the exchanges covering 12 types of terms or conditions, including:

  1. unfair limitations on the withdrawal of funds;
  2. arbitrary restrictions on the use of services;
  3. responsibility over user identifiers and passwords; and
  4. broad waiver provisions.

Furthermore, KFTC has noted the increase in the online advertisement of cryptocurrencies, and that the industry needs to self-regulate to avoid excessive advertisement.

xi LOOKING AHEAD

The government conceptually differentiates cryptocurrency from blockchain technology.30 The government recognises the innovative nature of blockchain technology and its potential impact on the Korean economy. Although it has shown hesitance in endorsing or institutionalising cryptocurrencies and has repeatedly warned investors about the potential dangers of investing in them, it has expressed interest in fostering, promoting and investing in blockchain technology as part of its strategic and economic plans. Furthermore, while the central government appears to be uneasy about cryptocurrencies, some local governments have shown interest in issuing their own cryptocurrencies.

A number of proposed pieces of legislation covering cryptocurrencies are pending at the National Assembly. These bills generally cover licensing requirements, anti-money laundering requirements, consumer protection, cybersecurity requirements and compensation for consumer losses. For example, a bill entitled the Special Act on Cryptocurrency Business seeks to, inter alia:

  1. impose a requirement that a licence be obtained for cryptocurrency exchanges and cryptocurrency-related businesses;
  2. impose record-keeping obligations;
  3. explicitly incorporate cryptocurrency businesses into the AML Act and other laws regulating financial institutions; and
  4. mandate the adoption of cybersecurity measures, among other things.

If passed, these bills may provide a more coherent framework for the regulation of cryptocurrencies and other related issues.


Footnotes

1 Jung Min Lee and Joon Young Kim are senior attorneys and Samuel Yim is a senior foreign attorney at Kim & Chang.

2 In this chapter, Korea refers to South Korea.

4 Financial Supervisory Service, press release, 23 June 2017, http://m.fss.or.kr:8000/fss/board/bodoBoardDetail.do?seqNo=20581&gubun=01&mId=M01050200000000.

5 Id.

8 FSCMA Article 4.

9 Id. Article 3.

10 Financial Services Commission, press release, 13 December 2017, https://www.fsc.go.kr/info/ntc_news_view.jsp?menu=7210100&bbsid=BBS0030&no=32202; Financial Supervisory Service, press release, 23 June 2017, http://m.fss.or.kr:8000/fss/board/bodoBoardDetail.do?seqNo=20581&gubun=01&mId=M01050200000000.

17 Ministry of Science and ICT, press release, 21 December 2017, http://www.msit.go.kr/web/msipContents/contentsView.do?cateId=mssw311&artId=1370974.

22 Act on the Regulation of Conducting Fund-Raising Business Without Permission, Articles 2–3.

23 Id. Article 4.

26 National Tax Service, press release, 5 December 2017.

27 However, it should be noted that the Korea Asset Management Corporation is not in charge of regulating the finance sector, and thus its view of whether cryptocurrency is or is similar to a security cannot be viewed as the government's position on whether cryptocurrency is a security under the FSCMA.

29 Korea Fair Trade Commission, press release, 5 April 2018.