Determination And Legal Effect Of "De Jure Investment,De Facto Loan" In Bankruptcy Procedures

In recent years,with the development of the economy and the financial background of “deleveraging”,the investment model of “de jure investment,de facto loan” is increasing,and the related disputes are also increasing.The so-called “de jure investment,de facto loan” is not a concept in the legal sense,but a word derived from the financial field and legal practice.In reality,due to the lack of clear norms and guidelines,the identifications of such issues are various,and the court's judgments and ruling results are also different.From the perspective of internal relations and external relations to discuss the “de jure investment,de facto loan” is conducive to in-depth understanding.Among the types of causes of “de jure investment,de facto loan “,most of them are the internal relations between the parties to the contract and do not involve a third party,however in the bankruptcy creditor's rights dispute,the discussion of “De jure investment,de facto loan” will comprehensively involve internal relations and external relations.Therefore,from the perspective of bankruptcy proceedings,the author discusses the identification and legal effect of the “de jure investment,de facto loan”.In the first part,we use the analysis of the judgments and cases of the “de jure investment,de facto loan” to lead out the “de jure investment,de facto loan”.According to the analysis of typical cases,it is found that the disputes about “de jure investment,de facto loan” are mainly about whether this investment mode is equityinvestment or debt investment.In similar cases,there will be the same case with different sentences.Later,it is found that the reason for this situation is mostly the situation and stage of the “de jure investment,de facto loan”.Under different circumstances,the analysis of “de jure investment,de facto loan “should start from a combination of internal relations,external relations,internal relations and external relations.In view of the existence of other creditors in the bankruptcy process will have an impact on the two parties to the contract,“de jure investment,de facto loan”has its particularity in the dispute of the confirmation of bankruptcy claims,so the analysis of “de jure investment,de facto loan” will be put into the bankruptcy proceedings.After discussing the concept and characteristics of “de jure investment,de facto loan”.Because “de jure investment,de facto loan” is not a legal concept,its characteristics can only be found through the definition of the fund industry.Its main manifestation is to pursue the creditor's rights of “de facto loan” in the form of equity investment of “de jure investment”.Then it analyzes the cause of “de jure investment,de facto loan” and its performance in bankruptcy proceedings.As a financial innovation tool,the emergence of “de jure investment,de facto loan” conforms to the current financial background,but there is something special about performance in bankruptcy proceedings.Because no matter it is a direct capital increase or equity transfer,the target company cannot realize the rigid payment obligations such as equity repurchase due to bankruptcy.The second part will discuss the cognizance of the “de jure investment,de facto loan” in the bankruptcy procedure.For the determination of the “de jure investment,de facto loan” in the internal relations,the most important thing is to analyze the real meaning of the parties to the contract.That the meaning of " de jure investment,de facto loan ",whether defined as debt or equity,it is a hidden behavior of civil juristic act,in such a legal relationship,to through the intention of false,see hidden behavior,and the meaning of the contract the parties true said,according to the real intention,to " de jure investment,de facto loan " whether equity or debt.In this case,it is necessary to discuss the relationship between bona fide reservation,false behavior andhidden behavior,and analyze and summarize the performance of the constitutive elements of “de jure investment,de facto loan” hidden behavior in bankruptcy proceedings.The second part also discusses the impact of “de jure investment,de facto loan”on third parties in bankruptcy procedures,which are the impact of hidden behavior on third parties and the influence of creditors with property guarantees on third parties.If the analysis of hidden behavior is to discover the internal relationship of“de jure investment,de facto loan”,then the discussion on the influence of third parties is to show that the determination of“de jure investment,de facto loan” cannot rely solely on Internal relationships,but more dependent on external relationships in the bankruptcy proceedings.Finally,the explanation of the commercial appearances proves that when the “de jure investment,de facto loan” involves a third person,it should be based on the principle of reliance interest.It cannot be defined as an equity investment or a debt investment due to internal relations,but is defined as an equity investment based on external relations.In conclusion,in bankruptcy proceedings,it is not only necessary to analyze the rights and obligations relationship between the parties to the contract,but also the impact of the investment model on the third party,that is,the impact of external relations,mainly including the hidden behavior,the impact of property-guaranteed creditor's rights on the third party.Finally,the discussion of externalism principle is added to the external relations.It can be seen from many aspects that the determination of“de jure investment,de facto loan” in bankruptcy proceedings mainly depends on external relations.In order to protect the reasonable trust and legitimate rights and interests of third parties,it should be recognized that “ de jure investment,de facto loan” in bankruptcy proceedings is equity investment.The third part is the legal effect of “de jure investment,de facto loan” in the bankruptcy procedure.Among the common "de jure investment,de facto loan",we mainly discuss it in the internal relations.Discussions on its effectiveness are generally placed in the internal relations,mainly to explore the real meaning of theparties to the contract.In this case,if there is no third party involved,in line with the formation of the contract,the“de jure investment,de facto loan” is valid.However,in the bankruptcy process,that is,in the external relations,the analysis of the effect of“de jure investment,de facto loan” needs to discuss the false behavior and hidden behavior separately.According to the General Provisions of Civil Law,the false act is invalid,but it can not be against bona fide third party.The hidden creditor's rights investment can not be against bona fide third party because of the principle of reasonable trust.In summary,based on the principle of reliance interest and the principle of estheticism,other creditors in the bankruptcy process belong to the bona fide third party,and the protection of creditor rights is one of the legislative purposes of the bankruptcy law,the author believes that it should be recognized as equity,and can not confront bona fide third party in legal effect.For bona fide third party,equity investment is effective.The third part also proposes a flexible approach to “de jure investment,de facto loan” in bankruptcy proceedings.Although the risk content of the investment model should be fully realized at the time of such investment,the investor can sign the contract with the target company after conducting a comprehensive assessment such as due diligence.However,the development and operation of the enterprise has certain unpredictability.If it enters the bankruptcy stage,the investment model of “de jure investment,de facto loan” will be recognized as equity investment,and the investors will suffer huge losses.Although the interests of other creditors are completely protected.However,it is indeed unfair to the investor,so it proposes to repurchase the investor's equity or compensate the investor without affecting the rights of other creditors,violating the principle of maintaining funds,and not violating relevant laws and regulations after the ordinary bankruptcy claims.