Research On The Implementation Mechanism Of Share Repurchase Type Gambling Agreement

Prior to the "Minutes of the Nine Peoples",the issue of whether the share repurchase agreement on gambling is valid,whether it can be implemented,and how to implement it has always been controversial in theory and judicial practice,and no unified opinions have been formed.The "Minutes of the Nine Peoples" put forward the specific rules for determining the validity of the share repurchase type gambling agreement for the first time in an official form,adopting the rules for determining the validity of the contract and the performance separately,that is,the "Contract Law" must be passed after the "Contract Law" is determined to be valid.The review of the relevant rules of the Company Law can actually fulfill the gambling agreement,that is,the court will analyze whether the gambling agreement can enter the performance state based on the capital maintenance principles and relevant procedural requirements stipulated in Articles 35 and 142 of the Company Law.Make a reasonable judgment.Based on the analysis of typical cases,it is concluded that the legal obstacles in the implementation of equity repurchase gambling agreements can be divided into capital maintenance principles and capital reduction resolution procedures in capital reduction procedures,and explain the meaning of no "performance possibility".This article consists of four parts:The first part mainly introduces the connotation,motivation and legal attributes of share repurchase type gambling agreement.The "Jiu Min Minutes" clearly defined the meaning of the gambling agreement for the first time.By comparing the gambling agreement with the real debt,assignment guarantee,and shooting contract,it is concluded that the legal nature of the gambling agreement should be an unnamed contract.The second part analyzes the transition of the judgment path of the share repurchase agreement in judicial practice by combing the "Haifu case","Hanlin case" and "Hua Gong case" : from emphasizing effectiveness to fulfilling regulations,finally forming a gambling The principles are valid and the possibility of implementation is valued.The introduction of the principle of distinction can be said to be a milestone improvement in the judicial adjudication of gambling agreements in the past ten years,and it has been highly praised by the theoretical and practical circles.The principle of distinction helps to deal with the intersection of contract law and corporate law,a gambling agreement,and to better resolve this financial hot spot.The third part analyzes the obstacles to the performance of the share repurchase agreement on gambling.It sorted out the financial resource restrictions of several types of share repurchases outside the territory to clarify the convoluted relationship between share repurchase and these two performance obstacles,and analyzed the "surplus" and "solvency standards" revealed in the Through Works case.,And "legally available funds" to make up for the lack of standards for determining whether to perform share repurchase under my country’s legal capital system.In the implementation of the capital reduction procedure,the capital reduction procedure is divided into the creditor protection procedure and the capital reduction resolution procedure,and their relationship with the principle of capital maintenance and share repurchase is demonstrated respectively.The fourth part explains that there is no "possibility of performance".The "possibility of performance in law or in fact" in the "Hua Gong case" may not refer to Article 580 of the Civil Code.The "possibility of performance" here is only the "precondition for the performance of the gambling agreement",and explain This explains why the "Minutes of the Nine Peoples" did not continue the "Performance Possibility" of the "Hua Gong Case".By combing the doctrine that there is no "possibility of performance",it is believed that the legal nature of the absence of "possibility of performance" should be regarded as impossibility in law.