公司对赌型股份回购的履行困境与出路

Abstract

China's corporate regulations on repurchase and corporate gambling have undergone a transformation from invalid to effective. The gambling agreement takes the form of contract to construct the corporate governance structure, reconstructing the original risks, interests and control pattern of the company organization, and should be subject to the company's laws and regulations.The rule of "capital reduction first and then repurchase" established in the Nine Civil Minutes relies on the principle of differentiation to shift the focus of the judgment to the performance of the contract, and puts it under the constraints of the capital maintenance principle. However, the current company law capital maintenance principle is too rough, leading to the gambling share repurchase can only be reduced through capital reduction, to increase the cost.However, the current judgment rules reverse the procedure of capital reduction and repurchase, the procedure of capital reduction can not be conducted and other major problems, which makes it difficult to actually perform the share repurchase, resulting in the absence of investor protection. The principle of replacing capital maintenance with solvency and continuing operation standards outside the domain reflects another regulatory idea of restricting the one-way outflow of corporate assets to shareholders guided by the interests of creditors. However, its high operating costs cannot be ignored in the process of its local introduction.Judicial judgment should comprehensively examine the assets of the target company in specific cases to determine how to perform the share repurchase, learn from the responsibility mechanism of the business judgment of the board of directors to overcome the absence of subject and responsibility identification in the company's decision-making, and take multiple alternative creditor protection measures to prevent the expected risks of share repurchase.Finally, the perfection of category stocks in the company law system is the fundamental way to solve the performance dilemma of gambling share repurchase.