Research On Related Issues Of Equity Investment Gambling Agreement

As an innovative financial instrument,the equity investment gambling agreement plays an increasingly important role in the field of commercial investment in China.Equity investment gambling agreement can guarantee the investor’s investment risk within controllable range by the gambling agreement of both investment and financing parties,and the financing party can obtain the capital input of the investor to promote the operation and development of the target company.Both parties take the gambling target achievement as the gambling object,and determine their respective rights and obligations in the gambling terms signed by both investment and financing parties according to the gambling target achievement or not.At present,except for the legal regulation of gambling agreements specified in the Minutes of National Court Civil and Commercial Trial Work issued by the Supreme People’s Court in November 2019,there is no targeted legislation on gambling agreements for equity investment in China.In this paper,starting from the focus problems caused by three typical cases,combined with the Minutes of Nine People,the author makes a legal analysis and summarizes the enlightenment and suggestions.This paper is divided into four parts as follows:The first part is the introduction,which mainly expounds that the equity investment gambling agreement comes into being with the continuous innovation in the field of financial investment.The earliest successful case of Morgan Stanley gambling in China,the unsuccessful case of Yongle and Taizi Milk,and the Haifu case,the first case of the effectiveness of gambling in China,have really received heated attention from the academic and judicial circles,and then came out with the evolution background of Nine People’s Minutes.This paper comprehensively sorts out the research status of the concept,nature,whether the agreed content can be reached and the subject who enjoys the right in China,the application of the concept of maintaining the company’s capital abroad,and the qualitative analysis of the gambling agreement.The research methods are case analysis,literature comparison and comparative study.The second part is the introduction of cases and the presentation of key issues.In this paper,the gambling agreement cases are three milestone cases from denying the gambling effectiveness of investors and target companies,indirect recognition and full recognition,and respectively put forward the focus issues of judging the legal application of the validity of the equity gambling agreement,judging whether the equity investment gambling agreement harms the company,and how to effectively implement the equity investment gambling agreement.The third part is the legal analysis of the focus issues,which mainly expounds that the legal nature of the equity investment gambling agreement is a nameless contract.In view of the applicable law,the gambling agreement has legitimacy in the contract articles of the Company Law and the Civil Code,but the equity investment gambling agreement conflicts with the procedural issues in the equity transfer clauses in the Company Law of China,as well as the transfer price and venue issues.There is an incomplete matching space with the share repurchase clauses in the Company Law of China that the company may not buy back the shares of the company and the shareholders may not withdraw the capital contribution,and it is also worth discussing with the principles of fairness and honesty and credit in the contract of the Civil Code of China.In the legal application of judicial judgment,the principle of respecting the freedom of commercial trial should be based on the freedom of contract;For effective In terms of performance,the capital reduction pre-procedure involved in the equity repurchase clause hinders the actual performance of the gambling agreement,but signing the gambling agreement with the limited liability company can improve its performance rate.The profit sources of the monetary compensation clause include the distributable profits of the current year and the previous year and the gambling agreement that has not been resolved by the shareholders’ meeting do not affect its performance;The signing of the equity investment gambling agreement does not harm the interests of the target company and its creditors,nor violates the principle of capital maintenance.The fourth part is the legal thinking caused by the case.From the legislative point of view,it is suggested to introduce special laws and regulations on equity investment gambling agreements and integrate the existing departmental laws to update relevant provisions in time;From the judicial point of view,it is suggested that the freedom of contract should be taken as the framework to respect commercial freedom as the judicial judgment idea,the legal basis of judicial judgment should be broken,the inertia application thinking should be broken,and the relief way should be pointed out for investors when the target company is difficult to perform;From the perspective of supervision,it is suggested to formulate standardized equity investment gambling contracts and establish information disclosure norms.