A Judicial Empirical Study On The Natures And Effect Of The Financing Agreement Of "Formal Equity-Essential Debt"

The "Formal Equity-Essential Debt" financing agreement refers to a series of trading arrangements in which the investor makes equity investment to the target company and,make an appointment to the financier on collecting certain benefits,and withdraws by means of repurchase and dividends within a fixed period.As a financing agreement,the "Formal Equity-Essential Debt" has caused legal problems and controversy in practice,which mainly shows on the judicial recognition of its natures and effect.This paper is based on empirical research,through selecting the sample cases of the "Formal Equity-Essential Debt" financing agreement,Combing and reflecting on the concrete ideas that judges how make recognition to the nature and effect of the "Formal Equity-Essential Debt" financing agreement,and advise a viable countermeasure to the judicial complete the recognition of the "Formal Equity-Essential Debt" financing agreement.Except for the introduction and conclusion,this paper is divided into four chapters.The first chapter The status quo of the judicial judgment of the nature and effect of the "Formal Equity-Essential Debt" financing agreement.This chapter is a consideration of the current judicial recognition of legal disputes involved in the "Formal Equity-Essential Debt" financing agreement.First of all,from the "trial level","juridical time","case and reason of case","case amount","trade sector" and other aspects show the basic outline of such cases.Secondly,summarize the current judges ideas of recognition to the nature of the "Formal Equity-Essential Debt" financing agreement.From the qualitative conclusions,including "credit financing","equity financing","unqualified" and "financing behavior",the qualitative logic is "exploring inner feelings","focusing on appearance form","fulfilling contract","Private Equity Investment Trust." Thirdly,it summarizes the current judges ideas of recognition to the effect of the "Formal Equity-Essential Debt" financing agreement.Judging from the conclusion of the recognition,it includes two types: "effectively recognized" and "invalidly recognized".The former is mainly based on the "Contract Law" and is concluded from the result of the nature recognition.The latter is mainly based on the "Company Law" and the principle of capital maintenance.Finally,it summarizes the main idea of recognize the nature and effect of the "Formal Equity-Essential Debt" financing agreement.When there is no third person,it mainly seeks the true intention of the parties and measures the interests.When there is a third person,it tends to give priority to protecting the interests of the third party.Chapter 2 The origin of the dispute: the nature recognition of the "Formal Equity-Essential Debt" financing agreement.This chapter is a reflection and improvement of the current judicial recognition of the nature of the "Formal Equity-Essential Debt" financing agreement.First of all,the problem of the current judicial recognition of the nature of the "Formal Equity-Essential Debt" financing agreement is that the qualitative results are not uniform.Secondly,the reason for the uniform qualitative is that the standard is not uniform.In practice,there are multiple standards such as equity registration,participation in company management,agreed income,and establishment of guarantees.Finally,with reference to the two criteria of "whether to obtain interest according to the company's business conditions" and "whether to enjoy the company's capital appreciation",the "Formal Equity-Essential Debt" financing agreement has the nature of debt financing,and this article tends to follow the "substance over form".It is recognized as a debt financing agreement.When withdrawing from damaging the interests of other creditors,it is identified that the investor has the qualification of shareholder,bear limited liability within the limit of the amount of investment.Chapter 3 The development of disputes: the effect recognition of "Formal Equity-Essential Debt" financing agreement.This chapter is a reflection and improvement of the current judicial recognition of the effect of the "Formal Equity-Essential Debt" financing agreement.First of all,the problem of the current judicial recognition of the effect of the "Formal Equity-Essential Debt" financing agreement is that the withdrawal of the target company's repayment of the investment method and the effect of the income clause are improperly determined.Secondly,the reason for the improper judgment is that the company's income distribution system is not perfect.The current "Company Law" does not rule the income distribution system such as the agreed repurchase of limited liability companies.Finally,this paper advises to determine the overall effect of the agreement from the perspective of commercial contract based on the "party autonomy","encourage trading principle","normal lending behavior between enterprises",etc.;based on the target company's asset credit,specifically examine its financial status Differentiate between the different ways of exit and the registration of equity,and determine the effect of the withdrawal and income clause from the perspective of the substantive damage of the creditor's interests.Chapter 4 is the continuation of the dispute: the judicial judges and financial supervision of the "Formal Equity-Essential Debt" financing agreement.This chapter is a discussion on the conflict and coordination between the judicial judgment and financial supervision of the "Formal Equity-Essential Debt" financing agreement.First of all,it advised that there are differences in the nature of the “financial stocks” between the judicial judges and financial supervision,and there are differences in the attitude of recognition.Secondly,the reason for the conflict is that the two have different judgment perspectives,the judicial judge focuses on individual interests,and the financial supervision focuses on the public interest.Finally,this paper advises to refine the relevant judicial interpretations in the direction of "value orientation rationalization","regulatory rules reference" and "regulatory space retention" to coordinate the relationship between "Formal Equity-Essential Debt" financing judicial judge and financial supervision.