On The Validity Of The Cash Payment Type Performance Compensation Clause

In recent years,after the Hifur company,the Zhongzhou company of science and technology,and many other companies failed the gamble,they have to pay compensations to fulfill the Performance compensation clause,and disputes continue to occur.Judicial practice and theoretical research have different views on the legal nature and effectiveness of the Performance compensation clause signed between finance companies and investors,and whether to recognize the validity have direct impact on the financial investment practices.This paper aims to analyze the legal nature of the Performance compensation clause,and to discuss the effectiveness of the term on this basis.This paper constitutes three parts,including introduction,body and conclusion.The body is divided into three parts as well.The first part starts with the definition of the research object of this paper,analyzed the generation causes,manifestations and calculation principle of the Performance compensation clause.Finally,the research object is defined the cash type performance compensation clause signed between the finance company and the investor.At the same time,the author makes an investigation on the attitude and opinion of the court and the arbitration organization in the judicial practice to identify the nature and effectiveness of the performance compensation clause.The second part aims to establish theoretical premise of the effectiveness of the Performance compensation clause,in other means,toanalyze the legal attribute of the clause.The author discusses the main points of the legal attribute of the performance compensation provisions in the educational circles.And Based on the performance compensation provision is Uncertainty of results and may lead to the Finance Companies to pay compensation to investors,The author analyzed the similarities and differences between the capital increase agreement including Performance compensation clause and the conditional contract,the aleatory contract,the loan contract,the option contract and the guarantee contract.Finally,the author found the performance compensation clause is guarantee clause in essence,and the capital increase agreement including Performance compensation clause is non typical contract.In the third part,the theoretical basis of the validity of the performance compensation clause is examined.This section respectively analyzed the invalid and revoking causes may be applicable to the performance compensation clause.First of all,the author analyzed if the performance compensation clause in violation of laws and regulations of the mandatory provisions,including whether to apply "the answer of the joint venture contract ",whether the capital maintenance principle is violated and whether it is bound to harm the interests of creditors.Secondly,the author analyzed whether the uncertainty of performance compensation clause will harm the public interest.Finally,the author further analyzed whether the performance compensation clause may be dismissed for unconscionability,such as violate the principle of risk-sharing in investment field.