기업집단 친족독립경영 인정제도에 관한 법적 쟁점과 개선 과제

Corporate groups focusing on platforms, gaming, entertainment, and virtual assets, whose growth trajectories differ from those of traditional chaebols, are emerging, while succession to the next generation of controlling owners continues. Thus, the legal system governing corporate groups must reflect the changing corporate environments and economic realities. As a part of this, a system for Recognition of Independent Management by Relatives must be established that can clearly determine, and manage, whether companies held by relatives should be excluded from the scope of a business group controlled by one of the controlling owners. Otherwise, one of the controlling owners may exploit the system to evade regulations applicable to large business groups while expanding control; conversely, domestic companies that in practice should not be deemed affiliates of a large business group could be subject to excessive regulation, with undesirable side effects. Considering these aspects, this study proposes legislative improvements to the recognition requirements and post-recognition management of the system. First, a transaction-dependency limitation must be established as a criterion for recognizing independent management by relatives, provided that an exception is allowed when interested parties demonstrate that transaction dependency does not exceed the normal range. Second, the post-recognition monitoring period must be extended from 3 to 5 years from the date of exclusion from the business group. Third, if, within 7 years after the exclusion date, a corrective measure (including a recommendation for correction or warning) or a penalty surcharge is imposed by the Korea Fair Trade Commission on account of unfair support transactions between affiliates of the controlling owner and affiliates of relatives, the exclusion decision may be revoked. Fourth, after recognition, any company over which an independently managing relative newly secures control shall also fall within the scope of post-recognition management, so that continued compliance with the recognition requirements can be ensured (including mutatis mutandis, checks on matters such as concurrent positions of executive officers, debt guarantees or loans between affiliates of non-relatives and affiliates of relatives, and submission of transaction details where applicable). These measures would prevent the recognition system from becoming a device for evading regulations on large business groups, while allowing exclusions from group affiliation to continue to be recognized in line with the original purpose of independent management by relatives.