Research On The Performance Of Gambling Agreement Under The Background Of "Minutes Of Civil And Commercial Meetings"

In recent years,as a financial innovation tool,the gambling agreement has been widely used in the commercial field.However,due to the long-term lack of relevant legal regulation in China,there have been many disputes in its practical application.From the "Haifu case" to the "Hanlin case" to the "Huagong case",the judgment results of local courts are different,and the effectiveness of the gambling agreement between the investor and the target company has always been controversial,Until 2019,the Supreme Court issued the minutes of the national civil and commercial trial work meeting(hereinafter referred to as the minutes of Civil and Commercial Meetings),which clearly stipulates that the gambling agreement signed between the investor and the target company is valid in the case of failure to determine the cause of invalidity,thus turning the focus of dispute to the enforceability of the agreement,and the actual performance of the gambling agreement needs to be solved urgently.Through the sorting and analysis of the trial of disputes over the performance of gambling agreements in judicial practice,there are mainly the following problems in the judicial application of the actual performance of gambling agreements: first,the minutes of Civil and Commercial Meetings only puts forward guiding opinions on equity repurchase and cash compensation gambling agreements,but there are still many problems in the performance process due to the lack of relevant rules,And there are no specific provisions on the situation that the target company often provides guarantee for shareholders’ gambling in practice;Second,for the equity repurchase type gambling agreement,the criterion for judging its enforceability is limited to whether the target company has completed the capital reduction procedure,and the logical relationship between repurchase and capital reduction is misplaced;Third,for the specific performance of the cash compensation clause,there is a problem of mechanically applying the provisions of the company law on profit distribution;Fourth,the insufficient information disclosure of the gambling agreement makes it difficult for the interests of the company’s creditors to be effectively protected.In the face of the prominent problems existing in the actual performance of the gambling agreement after the promulgation of the minutes of Civil and Commercial Meetings,the following positive and effective measures should be taken to improve the performance system of the gambling agreement: first,formal legal documents should be issued as soon as possible to make specific and unified provisions on the performance of the gambling agreement;Second,the judgment standard of the enforceability of the equity repurchase VAM agreement should not be limited to the framework of the traditional capital maintenance principle.You can choose "solvency" as the standard to judge the company’s ability to bear responsibility,and then judge the enforceability of the equity repurchase clause;Third,introduce the "preferred stock" system to provide a reasonable operating mechanism for the actual performance of cash compensated pair gambling agreements;Fourth,in order to protect the legitimate interests of the company’s creditors and avoid the difficulties of creditors’ rights protection caused by information asymmetry,we should improve the information disclosure system of gambling agreement and strengthen supervision.