An Empirical Analysis And Adjudication Suggestions Regarding The Dispute Cases Over The Closed Circular Trading Contract

Closed circular trading is also known as circular transaction.It is a kind of transaction between enterprises to achieve the purpose of financing and increasing performance in the form of circular trading.In judicial practice,there are some dissensions on the nature of its legal relationship,the effectiveness of its contractual relationship,and the responsibilities of the participants.On the basis of studying 196 judicial documents of the local high court and the Supreme People’s court,this thesis analyses and responds to the above issues and puts forward relevant judicial suggestions.The basic feature of closed circular trading is that three parties or more than three parties sign several sales contracts and the trading chain is closed.From the perspective of contract agreement,the type,quantity and quality of the subject matter agreed in each contract are the same,only the price is different.From the perspective of the performance process of the contract,the parties do not actually deliver the goods,only funds flow.While the financers buy high and sell low,the transaction reflects the purpose of financing.At the same time,this thesis also pays attention that the transaction parties carry out closed circular transaction by introducing related parties and signing principal-agent contract.As for the nature of closed circular trading,the mainly disputes are over the relationship between sales contract and loan contract.This thesis analyses three typical cases that have not been identified as loan contract relationship,and analyses the reasons that they have not been identified as loan contract relationship.This thesis holds that the closed circular sale with real goods should be regarded as the contract of sale.As for the closed circular sale without real goods,it should be judged that the sale contract is a false representation of conspiracy according to the interpretation path of false representation.As for whether there is a hidden loan contract relationship,it should be judged according to whether the parties have the loan agreement.As for the effect of contractual relationship,this thesis holds that the core of the problem is whether the loan contract between enterprises is effective.This thesis reviews the evolution of inter-enterprise loan policy,also self-criticisms the legal basis for determining the invalidity of loan contracts in closed-end circular trading cases,and holds that the current laws and administrative regulations in China on prohibiting or restricting inter-enterprise loan are not sufficient,and the principle of determining the validity of inter-enterprise loan contracts should be based on,with the exception of invalidity.As for the responsibility of the participants,it is mainly about the invalidity of the sales contract between the parties,whether the intermediary should bear the responsibility and what kind of responsibility it should bear when the loan contract is actually established.Based on the standard of the legal status and responsibility path of the intermediary in the transaction,this thesis sums up the main judgment viewpoints into four types:"the theory of performance assistant","the theory of loan contract counterpart","the theory of capital flow characterization" and "the theory of contract invalid consequence".Each of the four viewpoints has its own rationality and deficiency.This thesis holds that the hidden behavior should be identified as the loan contract between the investor and the financier,and the financier should bear the direct and first order repayment responsibility.The part that the financer cannot return is regarded as the loss of the investor.The intermediary should bear the supplementary compensation responsibility according to the invalid sales contract.The supplementary liability is culpa in contrahendo in nature,and the repayment liability with the financer is unreal joint relationship.