| On the basis that the effectiveness of the "VAM" has been confirmed,the focus of attention on the protection of creditors’ rights and interests has been gradually focused on the possibility of the performance of the "VAM".However,under the current judicial practice and the provisions of the Jiumin Minutes,the key to judge the performance of the "VAM" is still the "capital maintenance" principle and the binding of the "capital reduction" with the repurchase obligation,so as to protect the legitimate rights and interests of the creditors through the right to know and the request for guarantee.But from the essence of transaction,the judicial practice of our country only pays attention to the protection mode under the Company Law,but does not go deep into the protection mode of debt law.In addition,the negligence of regulation in our company law,the difficulty to resolve the conflict in the capital reduction model system,and the lack of financial resources under the buy-back obligation all lead to the failure of the protection model under the company law.Therefore,it is necessary to probe into the mode of cancellation of repurchase transaction by creditors on the basis of debt law,so that creditors can decide the time and amount of exercise of power.In addition to the introduction and conclusion,this paper is divided into three chapters.The introduction deals with the origin,value and research methods of this paper.The first chapter focuses on the framework of creditors’ protection under the repurchase mode of "VAM".Firstly,the author combs the debt law and the framework under the Company Law,and points out that the protection model based on the principle of "capital maintenance" and the protection model in debt law are two sides in the current judicial practice.Chapter 2 focuses on the basic logic of the rules for the protection of the rights and interests of creditors under the Company Law and the problems faced therewith.In China,the protection of the rights and interests of creditors under the Company Law is based on the principle of "capital maintenance",which first describes the basic principle of the capital maintenance principle,and then focuses on the fact that the share capital of the company under the registered capital subscription registration system is not sufficient to be used as a yardstick for the protection of creditors,and that the mode of capital reserves as repurchase funds,which is more common in the current transaction arrangements,is still in doubt in the current law and in theory,whether it can be used as a source for the performance of repurchase obligations;at the same time,completing the capital reduction procedures is not a necessary condition for the performance of repurchase obligations,and from the perspective of the withdrawal of net profits,the Company Law lacks restrictions on the source of repurchase obligations;in the face of the conflict between the "gambling agreement" and the rules of the organization,the capital reduction model is too indifferent to the rights and interests of investors,and it is difficult to provide a yardstick for the performance of the agreement between the investor and the target company,so the capital reduction model is not suitable for the sole yardstick for the protection of the rights and interests of creditors.Chapter3 mainly narrates the path of creditor protection in debt law.This part first discusses the theoretical basis of the protection above the debt law and the inherent limitation of the principle of "capital maintenance",and then examines the reasonableness of the reason for imposing restrictions on the repurchase behavior,thereby derives the basic basis for the creditor to exercise the right of rescission and the inspection factors,then on how the target company constitutes the infringement of the creditor’s rights,deduces two ideas from the judgment of "improper outflow" under the comparative law,and further summarizes the constitutive requirements for the creditor to exercise the right of rescission,then compares the right of rescission in the debt law or the Civil Code with the right of rescission in the Enterprise Bankruptcy Law,and finally sums up the legal effect of the creditor to exercise the right of rescission.The conclusion part is a brief summary of the problems discussed in this paper. |
