Comment On The Case Of Share Repurchase About Tonglian Co.,Ltd V. Xinfangxiang Co.,Ltd Jiuyuan Co.,Ltd

In recent years,as a financing method of adjusting valuation,betting agreement has become a new hot word in the field of private equity financing in China.The identification of the nature and effectiveness of VAM,and the nature and effectiveness of the agreement to assume joint and several guarantee liability for betting agreement have become the concerns of the theoretical and judicial practitioners.The case of Tonglian Co.,Ltd v.Xinfangxiagn Co.,Ltd and Jiuyuan Co.,Ltd Equity Repurchase Dispute is about the dispute of Equity Repurchase Gambling Agreement between investors and shareholders of financing enterprises and financing enterprises.Because it involves three parties and involves the issue of shareholders or companies guaranteeing the gambling agreement,it has strong pertinence and guidance.There are two main controversial points.One is the validity of the equity repurchase betting agreement.The other is the validity of the joint and several guarantee liability of the equity repurchase betting agreement between the financing enterprise and its shareholders.For the study of the validity of betting agreement,we should distinguish betting agreement between investors and shareholders from betting agreement between investors and companies.The former should be considered valid without violating other legal provisions,while the latter should be treated cautiously according to specific cases on the basis of following the principle of capital maintenance and protecting the interests of creditors.To determine the validity of the agreement undertaking joint and several liability for equity repurchase betting agreement,we should first judge the nature of joint and several liability,and then discuss the validity of the main contract,that is,the validity of the betting agreement between different subjects.Finally,starting from the validity of the guarantee contract itself,we can judge whether the joint and several liability guarantee belongs to the ultra vires guarantee,whether its validity belongs to the company,and whether the validity of the joint and several liability guarantee belongs to the company,as well as Criteria of relative equality.For the division of the rights and responsibilities of the three main bodies,we should consider whether the guarantor should bear the liability of fault guarantee under the invalidity of the guarantee contract,and the constitutive elements and scope of the liability.