On The Improvement Of Judgment Rules For Formal Equity-essencial Debt

With the development of market economy,investment activities become increasingly frequent.Traditional channels have been unable to meet the needs,and new financing models emerge.The mode of formal equity-essencial debt is widely used in the investment field.However,the management rules on this issue are in disorder,the academic circles has not formed a deep understanding about it,the Supreme Court hasn’t issued judicial explanations or guiding cases,leading to the problems in the judgment of the case.This paper discusses the results and proposes suggestions on improving the judgment rules of the cases involving formal equity-essencial debt.First of all,this paper collected cases,analyse typical cases.It is found that the case is considered from the following aspects,the main contract type,whether the identity of shareholders is confirmed,whether the company repurchases the equity,whether there is a bankruptcy situation,etc.In addition,there are some problems,such as common case with distinct judgments,avoiding judgment of stock and debt,imperfect interpretation of judgment,and excessive protection of the third party outside the case.Secondly,this paper analyzes the main causes of the confusion of judgment from the perspectives of academic theory,administrative management and judicial trial.At present,the academic circles have distinct understandings on the issue,and the definition is not clear.There are many problems in administrative management rules,such as multi-head management,low level of rule effectiveness,disunity of content,weak operability and disconnection with practice.Finally,the author proposes suggestions on this issue.Academic circles should deepen the cognition on formal equity-essencial debt,administrative organs should perfect management rules,The Supreme People’s Court should formulate judicial explanations or guiding cases,the court should explore the parties true meaning,distinguish the nature of stock and debt,pay attention to the protection of the company’s external creditors.The court should make a correct consideration between "commercial facade doctrine" and "true meaning doctrine",incorporate more commercial thinking into trials,balance financial innovation with risk prevention,and make self-consistent and unified judicial decisions.