The Current Situation And Path Reconstruction Of The Legal Effect Of Gambling Agreement

Gambling agreement refers to the mechanism that investors and financiers constantly adjust the company’s valuation to achieve the target value agreed in the agreement.It is widely used in the field of private equity.When we look down,the development of gambling agreement in China is still in the stage of exploration and application,and there is no final conclusion when dealing with relevant issues in judicial practice.By defining the definition of gambling agreement,understanding its basic characteristics and types in judicial practice,we can form a preliminary understanding of gambling agreement.Only under the premise of a clear definition can we further study its legal effect.There are different views on the legal nature of gambling agreement in the theoretical circle,such as the theory of aleatory contract and option contract.The reason for the above views is that the gambling agreement belongs to the nameless contract in the contract law.When analyzing its legal nature,scholars will inevitably classify it as a well-known contract with similar characteristics as the gambling agreement.Due to the blank of relevant legislation,the determination of the legal effect of gambling agreement is always ambiguous,which also leads to continuous disputes in the field of private equity,and judges have no rules to follow when trying relevant cases,so they can only handle them with the help of the principle provisions in the company law and the contract law,which will inevitably lead to different judgments in the same case,which is not conducive to the maintenance of market transaction fairness and justice Justice.Haifu case and Hanlin case are famous dispute cases of gambling agreement,but the court has adopted different judgment rules in the trial of the above cases.It is the lack of relevant laws that leads to many restrictions on the performance of gambling agreements in financial supervision and judicial practice.In this context,it is necessary to study the legal effect of gambling agreement.This paper is divided into four chapters.The first chapter is the analysis of the status quo of the legal effect of the gambling agreement,which is discussed from two aspects of the legislative status and the judicial status,and then puts forward the practical problems of the legal effect determination of the gambling agreement in China.In the part of legislative status,this paper analyzes the legislative level of gambling agreement;in the part of judicial status,it selects typical cases such as Haifu case,Hanlin case,and Huagong case to analyze;in the part of practical dilemma,it mainly puts forward the imperfection of relevant laws and regulations,the inconsistency of judicial judgment standards,the denial of the effectiveness of gambling agreement by law enforcement agencies,and the operation of gambling agreement in industry practice There are four problems with nonstandard.The second chapter is the basic theoretical analysis of the gambling agreement,including the definition of the gambling agreement,the causes of the gambling agreement,the function of the gambling agreement and the legal nature of the gambling agreement.The third chapter is about the influencing factors of the legal effect of gambling agreement,including whether the subject is qualified,whether there are defects in the expression of intention,whether the purpose and content of the agreement violate the mandatory provisions of law and public order and good customs.The fourth chapter is the path reconstruction of the legal effect of gambling agreement,mainly including the new thinking of the legal effect of gambling agreement,suggestions on the legal effect determination of gambling agreement,and the remodeling of the legal effect identification standard of gambling agreement.The specific suggestions include clarifying the legal nature of the gambling agreement,improving the relevant laws and regulations,clarifying the rules for determining the effectiveness of the gambling agreement in the judicial trial,and improving the supervision and autonomy system of the gambling agreement.When the standard of legal effect of gambling agreement is reshaped,it is discussed from three aspects: the legal effect identification standard of different types of gambling subject,the legal review standard of compensation provisions,and the appropriateness of the company’s business objectives.