A Research On The Validity Of Equity Repurchase Terms In Duidu Contracts

As the stock repurchase clause in the private equity investment agreement,the main background of its emergence is the realistic need of both the private equity investment and financing parties to allocate risks in advance,but as a new type of contract under the background of financial innovation,Its validity is still controversial in the judicial practice circle,especially in the theoretical circle.Although the majority of judicial practice circle regards it as invalid,there are still some cases of effective determination.This paper sums up and arranges the thinking of validity determination presented in the current judicial cases,analyzes and refutes it,and on this basis finally attempts to make a legal and basic commercial price for the stock repurchase clause.This paper mainly consists of four parts:The first part mainly introduces the cases selected in this paper and leads to the focus of the legal disputes.The cases all involve the stock buyback disputes in the process of private equity investment and financing.They are all caused by the request of the investor who has the right to repurchase according to the agreement when the repurchase conditions stipulated in the equity buyback clause in the private equity investment agreement are achieved by the investment target company.For the case,The issue of validity determination has become the core of the controversy,and the court does not have the same thinking on the judgment.The court that makes the invalid determination thinks that the repurchase agreement violates the relevant provisions of the Company Law and the interests of the creditors and the company should be invalid;The court of effective cognizance holds that the stock repurchase clause is the free arrangement of the risk in the investment process based on the autonomy of the will of both parties,so it should be found to be valid.The second part mainly introduces the thinking of validity determination in current judicial cases.First,as far as the thinking of effective confirmation is concerned,At present,the court is mainly based on the traditional autonomy of will in civil law and the principle of encouraging transaction on the basis of contract law.Under the guidance of syllogism judgment thinking,the current court often takes the principle of capital maintenance in company law as the main legal basis and invokes the provisions of company law and capital maintenance through the article 52 th of contract law.The Capital Regulation system with consistent principles determines thatthe Stock Repurchase Clause is invalid.The third part is mainly about the analysis of the idea of identifying the current validity.Firstly,the legal basis and the legal basis are not enough to negate the validity of the stock repurchase clause.The concept of capital credit guarantee is changing,the gist of the company capital system is changing to pay attention to the interests of shareholders at the same time,and the equity repurchase clause has its unique efficiency value.The current system of absconding capital contribution and the stock repurchase system in the company law are not the opposite relation with the agreement of the stock repurchase clause.Secondly,in terms of the train of thought of effective confirmation,its shortcomings are still along the road Following the traditional thinking of contract validity determination,the stock repurchase clause has not been considered as a factor of company internal contract regulated by company law,that is,in essence,it has not seriously considered the interests of the creditors of the company involved.In the absence of legal basis,the traditional syllogism should be transferred to the interests of the referee thinking.The fourth part is mainly trying to determine the effectiveness of the stock repurchase clause by using the judgment thinking of interest measurement.Firstly,efficiency and transaction safety should be taken as the value orientation of interest measurement.Then under the guidance of interest measurement judgment,the paper uses the principle of proportionality to measure the contract interests of both private equity investors and financing parties and the third party trust interests represented by the interests of the creditors of the company.The final conclusion is that the court should recognize the legitimacy of the value of the company as the subject of share buyback.The stock repurchase clause takes effective cognizance as the norm,but in the judgment,we should also pay attention to the article through the company law aspect.In addition,the function of creditor protection system in contract law,company law and bankruptcy law provides a smooth channel for creditor relief.