Research On The Legal Issues Of The Performance Of The Gambling Agreement Under The Background Of "the Ninth People’s Minutes"

Although the minutes of the civil and commercial trial work conference of the national courts nominally affirmed the effectiveness of the VAM agreement,it did not solve the problem that the VAM agreement is difficult to perform,which will make the interests of investors unable to be effectively guaranteed.This judicial status quo will hinder the development and application of the VAM agreement,a new innovative financing tool in China,affect the investment enthusiasm of investors,and cannot alleviate the financing difficulties of small and medium-sized start-ups,This is unfavorable to both parties of investment and financing.The first chapter discusses the meaning of VAM and the related basic knowledge of VAM performance,as well as the necessity of studying VAM performance.The second chapter investigates the judicial practice of the performance of the gambling agreement under the background of the ninth people’s summary.Then the third chapter makes an in-depth analysis of the three legal issues in which the investor requests the target company to perform the equity repurchase or monetary compensation,who should bear the burden of proof of the existence of performance obstacles,and what entity standard should be used to judge the performance obstacles.Finally,the fourth chapter puts forward a series of improvement suggestions.First,in judicial practice,the court generally adopts the theory of impossibility of performance,but the existing studies usually deny the theory of impossibility of performance.We should abandon the theory of "impossibility of performance",replace "impossibility of performance" with "delayed performance",and take the initiative to adopt the methods of execution reconciliation and coordination,combined with the specific financial situation of the target company,guide the parties to solve the problem of impossibility of performance against gambling by means of delayed performance,phased performance and other execution methods.Specifically,under the current judgment idea that "the premise of equity repurchase is that the company completes the capital reduction procedure and the premise of monetary compensation is that the company has distributable profits",the investor can only expect the shareholders of the target company to "voluntarily cooperate" to perform the capital reduction procedure and / or profit distribution resolution,which makes the investor’s claim for equity repurchase and / or monetary compensation of the target company almost impossible to be supported by the court,Therefore,the investment and financing parties can agree on the cooperation obligations of the company’s shareholders and establish liabilities for breach of contract in the gambling agreement to urge them to perform.Second,in the identification of who bears the burden of proof for the existence of obstacles to performance,in judicial practice,the investor bears the burden of proof for the existence of obstacles to performance.However,when there is a dispute over whether the contract can be performed,the party responsible for performing the obligation should bear the burden of proof.Therefore,the target company should bear the burden of proof for the non performability of gambling obligations,and the investor should only bear the burden of proof for its rebuttal claims.Third,in terms of what kind of entity standard is used to determine the obstacles to performance,the judicial practice adopts a strict position of the principle of capital maintenance,limits the performance of the gambling agreement to a relatively narrow range,and mistakenly binds the procedures of share repurchase and capital reduction,as well as the financial compensation and distributable profits,resulting in the inability to perform the gambling.Therefore,the liquidity standard should be properly introduced.The target company measures the financial status of the company and then judges its solvency.If it has sufficient legally available funds under the solvency standard,the target company does not have to be subject to the regulations of performance standards such as "capital reduction before repurchase" and / or "no profit distribution and no monetary compensation" and can directly perform the gambling obligation to realize the compensation to the investor.