On The Legal Risk Of Gambling Agreement And Its Prevention

With the maturity of China's capital market,the agreement on gambling is also needed by both sides of investment and financing,as an essential tool in the transaction process.However,in the actual operation of gambling agreement in China,there is no specific legal norms to regulate it,which leads to various disputes in the legal field.In 2012,the Supreme Court set down the judgment rules of "effective gambling with shareholders and invalid gambling with the target company".In the absence of law,the Supreme Court has played a guiding role in the definition of the application of gambling agreement.After that,the major courts have taken the settlement of disputes over gambling agreement as their main purpose.However,in April 2019,Jiangsu Huagong Venture Capital Co.,Ltd.and Yangzhou Forging Machine Tool Co.,Ltd.,pan Yunhu and other civil judgments(hereinafter referred to as "the dispute between Jiangsu Huagong company and Yang forging company")requesting the retrial of the company's share acquisition dispute began to shake this rule again.Later,the minutes of the national court's civil and commercial trial work meeting(hereinafter referred to as the "nine civil minutes")also made it clear that "the gambling agreement between the investor and the target company is effective in principle".Therefore,the problems caused by the gambling agreement,such as how to identify the nature,how to identify the effectiveness of the investors and the target companies,and how to regulate the future of the gambling agreement,are all the problems that should be solved by the law circle of our country at present.Not only that,these problems are also the focus of the paper.With the problem of how to avoid the legal risk in the practical application of gambling agreement under the condition of lack of legal regulation,starting with the dispute case between Jiangsu Huagong company and Yang forging company,this paper analyzes the current attitude towards gambling agreement in China's judicial practice circle,that is,affirming the effect of gambling with the target company,clarifying the reasons for the change of attitude in judicial practice circle,and then leads to relevant questions Question.From the theoretical point of view,according to the research on the concept of gambling agreement,this paper analyzes its legal nature and effectiveness,and finds that although gambling agreement is a contract,it does not belong to any well-known contract type currently stipulated in the law of our country,and the most controversial point of its effectiveness is whether it is effective to gamble with the target company.This paper holds positive opinions.Then,through the analysis of the current situation of the gambling agreement in the judicial and theoretical circles,the paper further summarizes the risk problems of the gambling agreement.Finally,some reasonable suggestions are put forward on how to regulate the risk of gambling agreement: first,internal aspects: the financing party should maintain the controlling right of the financing enterprise,set the progressive gambling goal and set the reasonable gambling goal,improve the risk awareness of gambling;the investor should make the venture capital demonstration contract and design the gambling agreement according to law to avoid the occurrence of gambling Risk.Second,the external aspect: to clarify the legal status of the gambling agreement in legislation,to solve the problems in judicial practice;to clarify the effect of the gambling agreement with the target company,to avoid disputes on the effect;to improve the preferred stock system,to create a good environment for the application of the gambling agreement;to put forward suggestions on improving the law,to issue relevant judicial interpretations as soon as possible,to unify the judgment standards,and to put forward We should adopt arbitration to solve disputes,improve the supervision of gambling agreements,meet the transaction needs of both investors and financing parties,establish a reasonable listing exit supporting system,protect the interests of investors and promote the development of the capital market within a reasonable range.