Discussion On The Implementation Mechanism Of The "Gambling Agreement" In The "minutes Of Civil And Commercial Meetings"

As a market financing tool,"gambling agreements" are increasingly used in private equity capital operations.Prior to the introduction of "Minutes of Civil and Commercial Meetings",whether the "gambling agreement" signed between the invested enterprise and the investor was valid,there have always been large differences in judicial determination,and courts and arbitration institutions at all levels have not formed a unified opinion.The promulgation of "Minutes of Civil and Commercial Meetings" formally proposed the determination rules for solving the problem of determining the validity of the gambling agreement,that is,when there is no legal invalidity,the gambling agreement signed between the investor and the invested company is valid in principle,but the invested company The prerequisites for equity repurchase and cash compensation need to be fulfilled when the gambling agreement is actually performed,that is,the court will separately review whether the investor has the situation of withdrawal of capital,according to the "Company Law" withdrawal of capital,procedures for capital reduction,and profit distribution procedures Whether the investment enterprise has fulfilled the corresponding procedures.Although the introduction of "Minutes of Civil and Commercial Meetings" helps to balance the interests of investors,investees,and creditors of investees and alleviate the company's financing difficulties to some extent,there are also problems in implementation that are difficult to guarantee.This article analyzes the cases that occurred after the introduction of "Minutes of Civil and Commercial Meetings" and some cases where the referee path will not be affected before and after the introduction of "Minutes of Civil and Commercial Meetings".It is concluded that the main disputes involved in the implementation mechanism of the "gambling agreement" under the background of "Minutes of Civil and Commercial Meetings" are focused on equity repurchase.The main body,the procedures for equity repurchase,the conditional achievement of the equity repurchase,the timing of the equity repurchase,the adjustment of the equity repurchase price and the amount of cash compensation.These controversial issues ultimately point to how the invested company's capital flow when compensating for bets can be achieved under the premise of complying with the company's principle of maintaining capital and protecting the interests of creditors when the invested company fails to meet the agreed gambling goals.Agreed business arrangements."Minutes of Civil and Commercial Meetings" requires the implementation of capital reduction procedures and the design of profit distribution.In fact,it does not conform to the "asset credit"-oriented company law reform and is not conducive to the new development of the capital maintenance principle in the commercial environment.This paper draws on the “surplus” and “solvency standards” and board-centered decision-making mechanisms reflected in the famous ToughtWorks case in the United States to make up for the deficiencies in China 's practice in determining whether it can fulfill equity repurchase and profit distribution standards.Solve the difficult problems for shareholders to form effective resolutions and reduce investors' excessive risk after investment.In light of China's judicial practice,this article puts forward the following suggestions on the implementation mechanism of the "gambling agreement" :(1)In the design of the "gambling agreement" performance mechanism,we must re-understand the new requirements and new developments of the legal capital system in the market environment(2)Try to change the allocation of powers and responsibilities on the "gambling agreement" decision-making mechanism to enhance the scientific and effective decision-making;(3)Innovate the "gambling agreement" performance model and reduce the pre-investment Concerns and risks after investment,to achieve efficient and stable operation of capital.