Identification Of The Possibility Of Performance Of Share Repurchase Gambling Agreement

According to the theory of general law,impossibility of performance refers to the loss of the ability of the party who has the obligation to perform due to the influence of objective factors,or the performance of the acts involved in the agreement is expressly prohibited by law.In general law theory,it is believed that the determination of the possibility of performance should judge whether it meets the premise requirements of the principle of good faith on the basis that the contract is legal and effective,and make an overall judgment by integrating relevant factors.The valuation adjustment mechanism of VAM is essentially a risk allocation mechanism for different business entities to judge the value of the invested company.Its content usually reflects the difference between the valuation of the same object and the prediction of future valuation changes of different business entities.As a business arrangement,it is a contractual solution for relevant stakeholders,which is conducive to promoting the consensus of equity investment transactions.This commercial innovation in the field of equity investment has been widely applied in China for many years from reference and introduction,and its understanding is also changing in judicial practice.Among them,the equity repurchase gambling agreement is one of the typical forms.The people’s court should not only respect the commercial autonomy and encourage investment trusts,but also adhere to the principle of capital maintenance,safeguard the legitimate interests of creditors,balance the rights and interests of multiple trading subjects according to law,so as to improve the trading environment and stimulate the vitality of the market.According to the principle of capital maintenance,the law strictly restricts the dynamic transfer of the company’s assets.If you are a party to the gambling agreement and a shareholder of the company,you should strictly abide by the requirements of the law.However,it can not be ignored that with the implementation of the subscribed capital system,the traditional capital maintenance principle has failed to achieve the purpose of enterprise asset preservation,and a series of procedural rules radiated by this principle can not be in line with the actual situation,which eventually leads to the reduction of the operation and management efficiency of many companies.Therefore,based on the basic consensus of determining the effectiveness of the gambling agreement itself,the determination mechanism of the enforceability of the gambling agreement is the focus of this paper.This paper will make a comprehensive analysis of the performance of the repurchase type gambling agreement in practice and the relevant provisions in the jiumin minutes,explore the problems existing in the performance of the gambling agreement in practice,and further explore and analyze the defects in the determination of the possibility of the performance of the share repurchase type gambling agreement under the current norms in theory.The gambling agreement signed between the investor and the target company will not directly deny its effectiveness unless it is invalid for legal reasons according to the provisions of the minutes of the nine people.In view of the current situation,it is necessary to discuss the determination mechanism of the enforceability of the main controversial clauses in the VAM agreement.Therefore,this paper starts from the following four parts.The first chapter briefly introduces the current situation of the determination of the possibility of performance of share repurchase VAM.The second chapter analyzes the problems existing in the current provisions on the determination of the possibility of performance of share repurchase VAM from the theoretical level.The third chapter analyzes the logical premise of constructing the recognition mode of the possibility of performance of share repurchase VAM agreement.The fourth chapter constructs the identification methods of the possibility of performance through different trigger conditions,and focuses on the application of solvency test in the identification of the possibility of performance of repurchase gambling agreements,so as to promote the standardized performance and benign development of gambling agreements under legal regulation.