Empirical Research On The Judicial Judgment Of The"public Shares And Real Debt"

As an emerging financing method in the field of corporate investment and financing,"Public shares and real debt" has significant advantages such as reducing the asset and liability ratio of the financier and the return risk of the investor.The "Public shares and real debt" involves a number of legal theoretical issues,judicial practice on the "Public shares and real debt" nature and effectiveness of the determination is also confused,so explore the "Public shares and real debt" judicial decision ideas have important theoretical value and practical significance.In this paper,we try to clarify the results and theoretical basis of the court’s handling of the cases related to "Public shares and real debt" in recent years,and finally explore the issues of how to determine the true intention of both parties and how to reasonably apply the commercial appearance doctrine by studying typical judicial cases.In the end,we will explore the judicial decision on the "Public shares and real debt" by examining how to determine the true intention of both parties and how to reasonably apply commercial appearanceism.This paper covers the following aspects.Firstly,we will explains the basic theories involved in the dispute of "Public shares and real debt".After clarifying the meaning,nature and transaction structure of "Public shares and real debt",the paper explores the "past life and present life" from the historical development of its legal regulation,and then analyzes in detail its theoretical basis,namely,the theory of meaningful autonomy and the theory of commercial appearance.Secondly,we will analyzes the current situation,problems and causes of judicial decisions in disputes over "Public shares and real debt".From January 1,2016 to December 31,2021,35 typical cases were selected as samples from 461 judgment documents to analyze the current situation of judicial determination of their nature and effect.The analysis focuses on the three types of decisions and their reasons for determining the nature of "Public shares and real debt",namely,debt financing,equity financing and non-determination.From the analysis of the current situation,we draw out the controversies and problems in the judicial decisions,and consider the causes of the inconsistent nature determination and inadequate reasons for the decisions,and conclude that the focus is different based on the protection of interests,the different standards for determining the nature of financing and the ambiguity of the effectiveness of the repurchase clause.Finally,based on the above-mentioned analysis of the sample cases,we will explore the current judicial practice,i.e.,the criteria and conditions that should be used to adjudicate the disputes of "Public shares and real debt".In the internal relationship,the parties’ true intentions should be explored by using penetrating trial thinking to clarify whether the parties have signed a clear document of loan agreement,whether the investor has actually participated in the company’s operation and management and whether it needs to bear the operation risks,whether the parties have agreed on a reasonable consideration for the equity transaction and made actual payments,and whether the parties have agreed on a regular fixed income for the investor and an exit mechanism at the end of the investment.mechanism.Consider multiple factors to determine the parties’ true intentions.In the external relationship,we explore how to reasonably apply the commercial appearance doctrine,and after it is clear that the relationship in question is indeed an external relationship,then determine whether the third party in the external relationship is a bona fide third party based on the conditions of whether there is the appearance of rights such as the registration of the change of equity,whether the third party disposes of rights based on reasonable reliance on the appearance of rights,and whether there is bad faith,and whether the special circumstances of bankruptcy affect the third party’s In the special case of bankruptcy,the interests of the third party are affected.This paper concludes that the commercial appearance doctrine is applicable.In addition,the paper also argues that the performance of the repurchase clause does not constitute capital evasion and that the credit enhancement clause is not invalidated by the loss of the main claim of the equity interest due to the "express equity interest",which also adds to the reasonableness of the commercial appearance doctrine.