| In private equity transaction,there are huge asymmetric information between the investors and financiers,investors know the information of the company is far less than its backers,in order to solve the problem to promote the investment efficiency and reduce the investment risk,based on the incomplete contract theory,the original shareholders and investors and financiers tend to be agreed in the investment agreement signed valuation adjustment mechanism and exit mechanism.In our country,the investment community seen as a kind of financial innovation,has the positive function to promote investment and financing control investment risk incentive means,is widely used in the private equity in China.However,at present,the Chinese court have not reached a consensus on the validity of the gambling agreement,and the judgments of the courts are divided.Among them,whether the buyback commitment made by the target company is effective or not has been hotly debated for a long time.In this paper,starting from the connotation of bet agreement in the private equity transaction,base on the analysis and interpretation of the underlying concepts and classification of private equity transaction.Summing up 28 cases involving private equity transaction in the past 8 years.This paper analyzes and evaluates the specific problems,such as the legal nature of the bet agreement,the validity of the gambling agreement,the distribution of the liability of the bet,the calculation of the compensation amount of the bet.Concluding that the most serious problem in Chinese trials is whether the repurchase commitment made by target enterprises to investors is effective.On that basis,the theoretical support for the confirmation of the bet agreement is further discussed,proposing that the judgment of legal effect of the bet agreement should follow the doctrine of capital maintenance and the doctrine of equity of shareholders.Finally,concluding that court should change its thinking on the trial and construct the validity identification system with Chinese characteristics.Specifically,this paper consists of four parts.The first part is to analyse the connotation of private equity transaction and bet agreement.From the connotation of private equity transaction as the starting point,extending to the indispensable bet agreement in private equity transaction.This paper expounds theconnotation type and value basis of the bet agreement,and then makes an analysis of the legal nature of the bet agreement,and proposes that the bet agreement is a conditional contract.The second part is to summarize 28 cases involving private equity transaction of china courts in the past 8 years.Discussing the judgment mode of the bet agreements in practice,summarizing the viewpoints and standards,laying the foundation for the following theoretical discussion and practical measures.Starting from the legal nature of bet agreements,discussing whether the bet agreements violate the mandatory provisions of laws and administrative regulations,whether it show fairness,and the influence of preliminary administrative examination and approval on the determination of the validity of the bet agreements.The third part is to discuss the theoretical basis for confirming the validity of the bet agreement and the legal doctrine contained therein on the basis.Its specific content should include but not be limited to the following principles: the principle of capital maintenance,the principle of equality of shareholders,and further explore the effectiveness range of the bet agreements.The fourth part is to summarize the ideas formed before,suggesting that commercial trial should be applied to identify the effectiveness of bet agreement.It also analyzes and draws lessons from the laws cited in similar cases in the United States and the way of judgment of the court.Finally,Proposing specific solutions,such as change the legal thinking,improve relevant laws and regulations,and create a reasonable regulatory environment. |
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