Study On The Validity Of Guaranteed Profit In Private Equity Investment

Private equity funds from the past walk in the gray space of the law,in 2012 "Securities Investment Fund Law" like the revision of the milestone into the legal system,the private equity fund has developed fast,until the end of 2017,The total assets under management in the private equity fund exceeded 10 trillion yuan,has increased of 40 percent over the same period last year.Among them,private equity funds and venture capital funds have the fastest growth rate.During the process of private equity fund raising,there is a lot of controversy about the "guaranteed income clause".Because of the regulations and trade regulations,they are subject to repeated injunctions,but there are no laws or administrative regulations that explicitly prohibit the promise of guaranteed income.As a result,local courts at all levels have different opinions on the validity of this clause and the agreement.Some of the relevant legal principles are invoked to justify the judgment,and some avoid the determination of the validity of the contract.The agreement on contractual rights and obligations determines that its essence belongs to the relationship of "investment,real borrowing".Even if the contract law is to judge according to the rules of contract law on the determination of contract validity,the dichotomy of mandatory provisions should also be resolved.The author aims to study the basis of the private equity investment fund and the validity of the contract,and to sort out the effectiveness of the bottom guarantee income clause in the private equity investment fund and the judgment of the effectiveness of the contract.It is hoped that the methods and abilities of solving practical problems in the future can be guided and enhanced through superficial research.This paper is composed of the following five parts: the first part is the introduction,which mainly introduces the purpose,background and literature prepared by the author to understand the background,reflecting the purpose and significance of the writing.The second part mainly introduces the adjudication case and its analysis,leads to the controversy of the object of discussion from the phenomenon of different judgments in the same case.The third part mainly focuses on the current dispute on the validity of the bottom guarantee income clause,which is mainly divided into effective theory,invalid theory and effective treatment theory under special conditions.The fourth part first defines the concept of writing object,introduces the particularity of private equity investment fund,and the causal relationship between private equity investment fund and bottom guarantee income,and introduces the categories of bottom guarantee income.From the similarities and differences between the similar contract terms and the crimes of illegal fund-raising,the author analyzes the tendency of its validity from the advantages and disadvantages of the proceeds of guarantee.Based on the introduction of its advantages of promoting the accumulation of investment funds to ease the financing problems of enterprises and its disadvantages of violating the basic principles of law,market rules and financial market security,and combining with the obstacles of confirming the effectiveness of the bottom guarantee income clause,The research object should be analyzed.The fifth part is based on the accumulation of the aforementioned theory and the problems presented by the adjudication cases,combined with the legal requirements of the rules for the determination of the effectiveness of the contract,summed up a unified path of effectiveness determination.In my opinion,we should not blindly deny the effectiveness of the guaranteed income clause,which actually caters to the lack of trust in the current market economy.Its theoretical negative externality has not yet been proved.It is difficult to assume that the bottom guarantee profit clause in all cases is harmful to the public interest,so the administrative compulsion should not tighten the regulation of the commercial transaction behavior at present,but should fully respect the autonomy of will and the freedom of contract of the main body of the market.Let the market regulate the behavior,take the maintenance of effectiveness as the principle,take the negation of effectiveness as the exception,when its negative externality fully erupts or when the rights and interests of both sides are seriously out of balance,then the judicial decision will carry out the subsequent revision.As a result of the development of private equity funds,it will gradually evolve a more reasonable income distribution model,and finally withdraw from the stage of history.