| The gambling agreement is a kind of agreement to achieve the purpose of financing and to achieve a smooth cooperation in the case of the difference of expected value of the investment and financing parties to the target enterprises.With the rise of private equity activity,there is a significant increase in the use of gambling agreements in the field of equity investment in China,and plays an increasingly important role in the investment market.As a new type of financial instrument,it plays an important role in solving the valuation difficulties of the investment and financing parties,the financing difficulty of the new venture and the prevention of investment risk.Bet against the agreement in the international capital market operation has been very poor,bet mode also displays diverse characteristics,financial performance indicators,preferred stock repurchase,corporate listing,enterprise management,and even specific activities can be a bet.But bet deal relative to foreign capital market,still belongs to a new thing,bet agreement in our country is mainly used in private equity investment,mergers and acquisitions and equity division reform,specific to equity investments in China,bet against the agreement also is mainly used in two types of investment activities,namely the international venture investment institutions of domestic enterprises and domestic private equity investment.Throughout our country law,however,did not make clear a regulation,to bet against agreement that in some type of bet is effective are divided on the basic problems,such as the finance company as a bet on the effectiveness of the main problems and the effectiveness of the share buy-back clause question without a clearly defined legal level.At present,the judicial trial of such cases is only with the help of some the provisions of the contract law.company law,due to lack of special law,ruling often cannot convince the social from all walks of life,this would lead to troubled investment practice for its use.And the content of the agreement bet and involve more than one in the field of legal norms,with the existing legal system in our country there are contradictions and conflicts,such as"company law" the regulation of equity transfer restrictions and security concept conflict between small and medium shareholders.Secondly,due to the foreign nature of the gambling agreement,its application in China's capital market is bound to suffer from the resistance of the market supervision system from our country.Enterprises listed in relevant regulatory audit system and antitrust review process will make the bet is limited by different levels of enforcement of the agreement,it is also a problem of the private equity participants.Therefore,it is necessary to study the legal issues related to the gambling agreement.On the basis of drawing lessons from the international practice,we should improve the legal system of gambling agreement as soon as possible.First to determine the range of bet against the subject from the legislation,and for some specific terms and conditions of the definition and reference to make reasonable regulation and system,such as equity terms and convertible preferred stock repurchase system;Second should suit the remedy to the case,establish the flexible supporting system,set up by setting the equity change table and equity transfer limit measures such as adjusting bet deal with the conflict between China's existing laws;Finally should improve the market mechanism,optimizing the regulatory environment,differently than in the public scrutiny to bet on agreement,set up a relatively standard industry autonomous organizations at the same time,make the bet protocol adapted to the soil of our capital market as soon as possible,really to our advantage. |
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