Research On The Legal Effect Of The Gambling Agreement

The effectiveness of Adjustment Valuation Mechanism is not only the validity of an agreement,but the validity of the relevant provisions related to the innovation behavior of the market entity and the development of the market economy.There are many disputes over the issue of the regulation and effectiveness of capital transactions such as equity repurchase or financing compensation between the target company and the investor.In addition to the factors that affect the evaluation of contract effectiveness,such as the "significant unfairness",identification of the mandatory norms in Article 52 of the Contract Law in the field of civil law,especially the contract law,the Adjustment Valuation Mechanism also involves the evaluation of the effectiveness under the company law.In the case that the financial index of adjustment valuation mechanism is not achieved,the target company's financing compensation or equity premium repurchase for the investors seems to be the embodiment of "significant loss"between the investment and financing parties.However this right and obligation arrangement is exactly equity valuation adjustment method of the information asymmetry between the investment and financing sides and the investor's high premium capital increase.The application of the mandatory normative clause in Article 52 of the Contract Law is the lead clause of the evaluation of the contract law of adjustment valuation mechanism,as well as the company law.The mandatory normative clause not only has a judicial interpretation and is interpreted as a "effectiveness norm",but also have no significance of evaluating the effectiveness of the contract itself.As for the evaluation of the company law on adjustment valuation mechanism,from the statistics related provisions of adjustment valuation mechanism,financing compensation,equity repurchase and creditor interest protection are the central reference factors for the effectiveness of the court review agreement.After the "Haifu Case",the issue of financing compensation has formed a business creed that "To bet against the company is invalid,but is valid against the shareholders."However,the Supreme Court's "declarative" judgment grounds-"This agreement allows Haifu's investment to obtain relatively fixed income,which is divorced from the operating performance of Shiheng's company and harms the interests of the company and the interests of the company's creditors"——does not reflect the deep analysis from the perspective of company law and the contract law,ignoring the investor's high premium investment and the valuation adjustment of the equity value adopted by the investment and financing sides.This simple and declarative judgment makes people misunderstand the "invalidation of betting with the company" and did not correctly guides the way that social capital invests in the startup high-tech enterprises.Investigating the main terms of the betting agreement,the betting method is mainly divided into the betting between target company shareholders and investors,as well as target company and investors.In the former method,the court often refers adjustment valuation mechanism as the autonomy of private law between the shareholders,and the two parties agree with each,so that the agreement is legal and valid;The agreement on the betting between the target company and the investor often violates the"prohibition of shareholders' withdrawal of capital" and "restriction of company equity repurchase"because the target company compensates investors for financing compensation or equity repurchase.This agreement usually led to a decrease in registered capital,which has seriously damaged the interests of corporate creditors and has been found to be invalid by the court.However,when we conduct a detailed analysis of the relevant provisions of the agreement,we will explore whether the actual financial results achieved,such as financing compensation for investors or equity repurchase,will reduce the company's registered capital;We explain the "rules against evasion of capital contribution" purposefully and make it clear that the evasion of capital contribution should be identified in substance,that is,the funds to be evaded belong to the scope of the company's share capital,and the use of capital reserve,surplus reserve,undistributed profits and other funds rather than the company's share capital to compensate investors can not be directly identified as the withdrawal of capital contribution behavior;The main body of corporate equity repurchase is distinguished.In limited companies,equity repurchase is limited to the right of objecting shareholders to repurchase,and can not deal with other common phenomena of equity repurchase.Therefore,after the guidance of the Supreme Court and summarizing other cases of repurchase,it tends to regard the right of objecting shareholders to repurchase as a legal right.However,in addition to this legal right,there is also a free repurchase of equity;The legislative model of the shareholding company adopting the "principle prohibition and exception permit" seems to include the repurchase situation outside the legal repurchase situation of the stock company as a prohibition of repurchase,but by exploring the legislative intent of this article,the interests of the company and creditors will not be completely damaged by the share repurchase,because the article cannot be directly understood as the "effectiveness clause" for directly evaluating the validity of the agreement.The reason why the effectiveness of the gambling agreement is determined under the current company law is that the dilemma and disputes are mainly due to the fact that the company law of the company implements the "capital credit",which is the core of the company's protection,making the company's own business development secondly.And this does not promote the market innovation.On the contrary,the relevant legal rules will be binding on the innovative behavior,which is not conducive to the autonomy of the meaning between the equal subjects,but also hinders the development of the market economy.