기업경영자의 이혼과 재산분할

Business Owner’s Divorce and Equitable Division: Including a Review on the Divisibility of Non-marital Asset

The equitable division of property in the events of divorces of business owners has attracted much attention from the public as it has potential to affect corporate governance. In particular, if a succession of business ownership is involved and the business owner's share in the corporation was acquired by gift or inheritance, the issue whether the share remains non-marital asset and therefore not subject to equitable division procedure arises. In principle, no reason exists for the issue of the divisibility of non-marital asset to be resolved differently in the case of business owner's divorce. The division of non-marital asset should remain an exception. There are, however, good reasons for the Supreme Court case and family court practice as well to identify non-marital asset as the object of equitable division where the marriage has been maintained for a long period. In particular, it should be considered that the substance of the business behind the business owner's share or equity has constantly changed during the marriage, and that the business owner makes a personal contribution to these changes or rather value increase. Just as business income in a sole proprietorship, even if it is based on non-marital property, is undoubtedly subject to equitable division, the increase in the value of the share or equity to a corporation should also be subject to equitable division, even though the share has been acquired by gift or inheritance. In this case, of course, the outstanding contribution of the business owner can also be considered in determining the division ratio. Undoubtedly, investors and other stake-holders can be interested in avoiding or reducing the possible affect of business owner’s divorce upon the corporate governance. It is the role of the prenuptial agreement in Korean as well as many other legal systems, however, to meet these needs. Even in the absence of a prenuptial agreement, the family court should try to minimize the affect of equitable division on corporate governance especially when determining the way to allocate divisible assets.