Research On The Legal Effect Of The Difference Supplement Agreemen

In recent years,credit promotion measures have been widely used in the field of information technology products,the difference make up the mutual agreement as the most representative measures are frequently used,as using scene gradually widened,difference up agreement also is not confined to information technology products,or even try to introduce difference up bank credit,security to ensure the creditor’s rights.Although it has been applied on a large scale in practice,courts at all levels have failed to reach an agreement on the definition of the nature and validity of the balance supplement agreement in judicial practice,even causing confusion in application and running counter to regulatory policies,and the theoretical circle has not reached a conclusion on this.Until 2019,"the national work conference on court in civil and commercial trial summary"(hereinafter referred to as the "nine notes)shall be the preliminary response to this problem,and implemented in 2021 the Supreme People’s Court on the guarantee system of < the People’s Republic of China civil code >applicable explanation"(hereinafter referred to as "the guarantee system of judicial interpretation")to further refine the rules,But there is still room for discussion.Therefore,by sorting out and analyzing the cases of balance supplement agreements in "China Judicial Documents Network",this paper discusses the nature definition and validity determination of balance supplement agreements,and mainly discusses the following three aspects according to the relevant conclusions drawn after sorting out:First,the definition of the nature of the balance supplement agreement.In practice,there are three main viewpoints on the determination of the nature of the balance supplement agreement by the court,namely,the theory of debt accession,the theory of guarantee contract and the theory of independent contract.Through the summary and sorting of a large number of cases,it can be seen that the core of the court’s definition of the nature of the balance supplement agreement is to explore the true meaning expression of the parties.The identification ideas mainly include the judgment from the aspects of the cultural and practical performance,the existence or not of the underlying debt,the order of the performance of obligations and identity,and analyze the shortcomings of the above ideas,and finally reconstruct the definition standard of the nature of the balance supplement agreement,trying to unify the judgment ideas from three aspects.Second,the identification of the validity of the balance supplement agreement in violation of financial regulatory policies.After determining the difference supplement agreement,the court usually further discusses its validity.According to the case review,most cases are based on asset management products,which are closely watched by financial regulators due to their high risk and complexity.Therefore,people are paying more and more attention to the identification of the validity of the balance supplement agreement in asset management products.However,the sample statistical results show that courts generally affirm the validity of the difference supplement agreement,and the difference supplement agreement may be considered invalid when it involves violation of financial regulatory policies and external guarantee rules of the company.Therefore,there will be further discussion on what kind of financial regulatory policies will lead to the invalidity of the balance supplement agreement,and on what grounds the court determines the invalidity.Third,the application of the company’s external guarantee rules to the balance supplement agreement.According to the statistical results of samples,some courts consider the difference supplement agreement invalid on the grounds that it violates the company’s external guarantee rules.Then,based on the different nature of the balance supplement agreement,how should the company’s external guarantee rules be applied?For the case of debt accession,some precedents demonstrate that debt accession can be applied to external guarantee rules by using the interpretation method of "taking the lighter one and taking the heavier one",which is also confirmed in Jiumin Records and further clarified in The Judicial Interpretation of Guarantee System.However,in other cases,Especially,it is worth paying more attention to whether the external guarantee rules can be applied when the balance supplement agreement is identified as an independent contract.To think about this problem,we need to start from the essence,compare it with guarantee,and make a reasonable explanation for the unified application of the balance supplement agreement from the perspective of the legislative spirit of external guarantee rules in the Company Law.In conclusion,through the empirical research of this paper,as the scope of application of the balance supplement agreement becomes wider,more and more subjects are used,and the transaction structure becomes more and more complex,there is an urgent need for a unified approach to the definition of its nature,so as to better judge its effectiveness.As the related judicial interpretation,the difference will be further defined the nature of the supplement agreement and apply,this article is summarizing past precedent for balance supplement agreement nature effectiveness have different understanding on the basis of combining the judicial practice and academic point of view,at the same time,the analysis of the court to judge ideas for the difference between supplement agreement can play a better role related Suggestions are put forward.No matter strengthening supervision or strengthening the function of trial,it should conform to the reasonable demand of realistic economy.Although it is important to break the rigid exchange,meeting the diversified financial needs cannot be ignored,and economic order and transaction efficiency are also indispensable.Based on the different risk needs of the market,the asset management industry should also design targeted financial products to meet the risk preferences of different groups,which is also the meaning of financial innovation.Atypical credit enhancement,including the balance supplement agreement,plays an important role in enriching financial products and activating the financial market.No matter in legislation,judiciary and supervision,we should adopt a tolerant attitude and appropriately encourage financial innovation.Therefore,financial laws and policies should keep pace with The Times,and there is a certain dynamic balance between principle and flexibility.