비상장주식 재산분할의 딜레마, ‘현금 청산’ 관행에 쐐기 박은 대법원의 판결 > 뉴스

The key issue in this case was the destructive influence that the property division method has on corporate management rights. Instead of the husband continuing to own the unlisted stocks, the lower court chose a split method that required the wife to pay cash equivalent to its value. However, the Supreme Court found that this method forced the husband to sell his shares or took out excessive collateral loans, which ultimately resulted in the loss of control of the company. Since unlisted stocks are not actively traded, it is realistically very difficult to cash them out at an appropriate price. In the end, the fruits of his years of hard work as a manager were in danger of being destroyed by a single divorce ruling, which the Supreme Court judged to be a measure that seriously undermined the equity between the parties.

What the Supreme Court paid particular attention to in this ruling was the size of the husband's available assets and the realistic possibility of paying property division. The husband's net assets, excluding stocks, were only about 10.3 billion won, and most of that was real estate held in joint names with his wife, so it was impossible to dispose of it without her cooperation. Even if all of the husband's assets were converted into cash, the 14.3 billion won he had to pay to his wife was not enough, so the stock containing the management rights had to be put on the market. The Supreme Court pointed out that this structure forces managers to make unilateral sacrifices and is an unreasonable structure that forces managers to shoulder all economic risks, such as stock value fluctuations and tax issues. On the other hand, it was also taken into consideration that the wife, who already owns significant assets and receives child support, would not be at risk of falling into financial hardship even if some of the stocks were distributed in kind.

So far, the court has continued the practice of giving priority to division in the name of avoiding management rights disputes due to the closed nature of unlisted stocks and the difficulty in evaluating them. However, this practice contained the risk of distorting ‘substantial fairness’, which is the essence of property division. Through this ruling, the Supreme Court made it clear that although target splitting can be a method when splitting unlisted stocks, it is not the only solution. If there are special circumstances, it is advisable to use a variety of division methods, including division in kind, and the court has provided guidelines that require careful consideration of the specific circumstances of the parties and the company's survival value. This suggests that a property division ruling cannot be free from the aspect of protecting a company's management rights.

Legal experts predict that this ruling will serve as an opportunity to secure flexibility in property division in similar divorce cases in the future. This is because the need for a ‘mixed division’ that can protect the legitimate property rights of the other spouse while preserving the management rights of the company has increased, breaking away from the method of mechanically ordering cash payments as in the past. In some cases, there are extreme cases of selling the entire company to a private equity fund to protect management rights, so the court's decision can be interpreted as an attempt to protect the entrepreneurial spirit and alleviate the excessive management risks that founders must bear. In the end, it was once again confirmed that divorce property division is not simply an arithmetic calculation of dividing numbers, but is a complex process of adjusting interests that must take into account both the settlement of the couple's joint life and future economic independence.