| "Betting agreement",also known as valuation adjustment agreement in theory,is an agreement designed to adjust the future valuation of the target company,including share repurchase and monetary compensation,in order to solve the problems of uncertainty,information asymmetry and agency cost in the future development of the target company.As a special way of private equity investment in the investment and financing market,it has been paid more and more attention by relevant market entities in China’s economic activities,especially in the operation process of market entities,and has played an irreplaceable role."Bet agreement",however,because of its uniqueness,whether from the perspective of "civil code" or the "company law",can be accurately,the relevant legal regulation more perfect system,therefore,in the practice of a law definition of "bet agreement" has been no unified standard,clear.Therefore,in recent years,in the economic development,especially in the investment and financing activities of market entities,the validity of the "gambling agreement" has caused more and more disputes and disputes.In judicial practice,this kind of case can only be judged on the basis of some principle provisions in relevant laws.In November 2019,the Supreme People’s Court issued the Minutes of the National Courts’ Civil and Commercial Trial Work Conference(hereinafter referred to as the Nine People’s Notes),which marked the standardization of the identification of the legal effect of the "gambling agreement" and provided a relatively clear guide to the settlement of relevant problems in judicial practice.However,since "Jiuminjiaojie" itself is not a law,it is difficult to play its due role in judicial practice.Therefore,it is increasingly important to further strengthen and improve the relevant company legislation in China,especially the relevant legal regulations on the validity identification of "gambling agreement" in company law practice.Therefore,it is of great theoretical and practical significance to study the identification of the legal effect of the "gambling agreement".The purpose of this study is related to "bet agreement" based on the theory of legal effect that,through the analysis of the cognizance of "bet agreement" force of law in our country present situation and existing problems,and draw lessons from and absorbing foreign "bet agreement" legal effect of experience,proposed consummates our country about "bet agreement" law legislation suggestion.In addition to the introduction and conclusion,this paper is divided into four parts:The first part is about the basic theory of the legal validity of the "gambling agreement".Firstly,it expounds the connotation of "gambling agreement" and the different theories about the nature of "gambling agreement" in the theoretical circle.Secondly,it analyzes the causes of the "gambling agreement",and then puts forward the necessity of strengthening the legal validity of the "gambling agreement".The second part is the discussion about the current situation and existing problems of the legal effect identification of the "gambling agreement" in our country.Mainly in "civil code","company law" and "the protocols of nine people as the key point,to find that" bet agreement"the legal effect of legal norms,at the same time,based on typical cases in the practice,points out that" bet agreement "legal effect that problems existing in the legislation and practice in our country,such as the main body that is unreasonable,unfair identifying is not unified,harm the interests of the company and creditors is not science,to perform and maintain agreement effectiveness problems confuse STH with STH else,etc.The third part is about the legislative practice and enlightenment of the legal effect recognition of the "gambling agreement" in foreign countries.Based on the discussion and analysis of the legislative practice of the legal validity identification of the "gambling agreement" in the United Kingdom,the United States and Japan,this paper summarizes the enlightenment of the foreign legislative practice to China,including the establishment of a perfect preferred stock system,the emphasis on the empowerment of the application of the "gambling agreement",the establishment of standard venture capital model contract,etc.The fourth part is the suggestion of perfecting the legislation on the legal effect identification of the "gambling agreement" in China.First,improve the identification rules of the subject in the "gambling agreement";Second,improve the identification rules of apparent unfairness in the "betting agreement",formulate standard venture capital model contract,and establish the guidance mechanism of apparent unfairness identification standard;Third,to improve the "gambling agreement" in the damage to the interests of the company and creditors to identify the rules,establish a perfect preferred stock system,optimize and improve the applicable rules of share repurchase;Fourthly,improve the identification rules that distinguish performance from effectiveness in the "betting agreement",and accurately define the validity of the contract and the performance of the contract. |
