The gambling agreement is the risk management and pricing auxiliary tool that is commonly used in the market in my country's venture capital and private equity investment markets，Mainly reflected that investors make premium investment in advance，Set a certain performance target，When the indicator fails to complete the indicator，contract arrangements for investors to compensate investors or their shareholders for investors or share repurchase。There is less controversy between the investors and the shareholders of the target company，And the private law of investors and target companies facing the collision of the company's law order and contract legal order: according to the contract method，The contract must be strictly guarded，But according to justice，Assets from the company's reverse flow into shareholders are strictly controlled by capital。

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"Gambling with the company" caused lasting、Fierce debate。In "Gansu Shiheng Nonferrous Resource Reuse Co., Ltd.、Hong Kong Diya Co., Ltd. and Suzhou Industrial Park Haifu Investment Co., Ltd.、Lu Bo's capital increase dispute case "，The court believes that investors "can obtain relatively fixed income，This income is separated from Shiheng Company's operating performance，harm the interests of corporate interests and the interests of corporate creditors "，Therefore, the judgment is invalid for the terms of gambling，Then the industry was extended to "valid with shareholders，The referee view of the company with the company。The referee position of "Valuity with the company" caused fierce criticism，my country's bet365 Play online games referee on gambling disputes gradually get rid of the rigid judgment of the contract effectiveness，Enter the level of performance of the gambling agreement。In "Jiangsu Huagong Venture Capital Co., Ltd. and Yangzhou Forging Machine Tool Co., Ltd.、Pan Yunhu and others requesting the company to acquire a share dispute case "(hereinafter referred to as the" Chinese worker case ")，The court believes that "payment of share repurchase money ... will not damage the ability to settle the repayment of other debtors"，Case involved in the provisions of the gambling "Perhaps Performance Performance"。The Minutes of the National Court of Civil and Commercial Trial Works of the Court of Courts (Fa [2019] No. 254) (hereinafter referred to as "Jiu Min Ji") will specifically determine the share repurchase and money compensation of the company through the capital constraints of the company's capital reduction and profit distribution Can the Terms of "Gambling with the Company" be fulfilled。But the relocation of the referee from the performance to the performance did not end the confusion and controversy of "gambling with the company"，How to judge the performing of "gambling with the company" becomes a more refined、More difficult problems to raise more challenges to judicial practice。

　　Cracking the "gambling with the company" referee problem 

"Gambling with the company" becomes a referee problem，In fact, there is a profound corporate system root，Repairing and catering of legal provisions not only difficult to resolve the dilemma of the referee，It is not conducive to guiding the main body of the business body to gambling in rationality。The cracking problem of the "gambling with the company" referee needs to return to the company system，A systematic review and response of the "Company Law" reform。

On the one hand，my country's "Company Law" lacks a unified scale of the bet365 live casino games company's allocation of capital regulations，"Gambling with the company" can actually perform financial standards that lack judgment。The performance of "gambling with the company" makes the company's assets flow from the company's reverse into the shareholders，Share repurchase and profit distribution have the same economic essence，However, in the "Company Law"。Unlike Article 166 of the Company Law, the financial constraints set for profit distribution，Article 142 of the "Company Law" adopts the path of regulation rather than financial regulations，The legitimacy of the repurchase depends on whether it falls into the scope of the list。Under this system constraint，Based on the capital reduction is the legal reason for the stock repurchase clearly listed in the "Company Law"，"Jiu Min Ji" requires the share repurchase type to perform the performance of the gambling agreement must "reduce capital、Back repurchase "。In the reduction of capital，Creditors "have the right to request the company to settle debts or provide corresponding guarantees"，This responds to the threat of the company's debt repayment capacity on the performance of the company's debt。But this confuses the logical relationship between repurchase and capital reduction -company capital reduction is a special resolution，The company's capital reduction resolution may not be passed under the control of the founder's shareholder，Even the relevant bet365 Play online games shareholders' meetings cannot be held，So that the target company evades the opportunity to perform the performance of the gambling agreement。other，Can the capital provident fund be returned to investors、Cash compensation type The performance of the gambling agreement should be withdrawn from the legal provident fund and other issues, which also caused controversy。

，The focus of the capital system reform of our company is the control of the Bet365 lotto review control of shareholders' capital contribution and capital formation.，Under the vague understanding of "shareholders must not escape"，Assets from the company to shareholders's reverse outflow lack of unity、Clear financial standards。Construct the financial constraint rules assigned by the company，There are two paths: "capital maintenance" and "clear compensation"。The logic of the former is to maintain the amount of abstract capital，and then restrict the company's asset outflow，Easy to operate but inevitably rigid and arbitrary。The latter point directly to whether the company can pay off the debt，Or is there any continuous business ability，Accurate flexible but dependent on the judgment of the operator。From the "Company Law" related profit allocation、Regulations for reducing capital，my country has adopted the institutional path for capital maintenance。and the comparative method exists from the institutional evolution trend from capital maintenance to clearing capabilities，But under the system constraints of the system，This change must be step by step。Specifically，The revision of the "Company Law" can ease the protection procedure of creditors in the amount of capital reduction、The provident fund planning in profit distribution and the financial regulations of refined share repurchase are made.。

On the other hand，my country's "Company Law" lacks business decision -making power center，Whether the "gambling with the company" can actually fulfill the main body and responsibilities that lack judgment。The performance of "betting with the company" is essentially a business behavior，Depending on the company’s business decision。But my country's "Company Law" distributes the company's profit、The decision -making right of the share repurchase matters gave it to the bet365 Play online games shareholders' meeting instead of the board of directors。Different from directors as company operators，Shareholders as the owner of the company，The motivation to vote is to maximize its own interests，Usually not to be attentive obligations in the process of decision -making。Correspondingly，The resolution of the shareholders' meeting cannot be evaluated and reviewed by the obligations of faith and righteousness。From this，In the related disputes in the gambling agreement in my country，"Whether to perform the contract" is not the business judgment of the board of directors，The court can not use the obligation of faith and righteousness、Decision Procedure and other institutional tools for the legality of the company's decision -making、Trial of fairness，It can only be judged by the court directly to make the "whether the performance of the gambling agreement meets the capital regulations"。This is a prominent manifestation in the "China Industry Case" judgment，The court will use the capital injection of the investor、Analysis of the dividend of the target company over the years，It is believed that the performance of the case involving the gambling agreement will not damage the company's debt capacity，Then order payment of shares repurchase。Although there is an important breakthrough in the previous "invalidation with the company"，But the above analysis process is still limited to the barrier that directly judges。Under the restrictions of the lack of the center of operating decision -making power，The board of directors has the right to decide the business matters and the logic of power and responsibility for decision -making is not connected，It is the root cause of the referee problem that can be fulfilled in the gambling agreement。

Shareholder Conference Centerism、The "Trivation of Doctrine" of the Board of Directory is a question bet365 Play online games that the company's theory and practice have been arguing for a long time。"Company Law" revised process is repeated，But the introduction of the authorized capital system may mean that the reform direction of the board center is gradually becoming clear。Actually，The configuration of the decision -making power of the bet365 Play online games shareholders' meeting and the board does not exist in standard answers，but subject to specific space -time conditions，With the development of the company's practice and the development of the capital market。For example，Although the repurchase of shares involves the adjustment of the company's capital structure and the vital interests of shareholders，It is a typical owner of the shareholders' meeting.，But based on the needs of the capital market and the efficiency of the company's operation，The amendment to the "Company Law" in 2018 has given the board of directors' decision -making power on the share repurchase matters under certain conditions。At the same time，In recent years, the accountability of the directors of listed companies has entered the "strong responsibility era"，Questions about "do not match power and responsibilities" in company governance，It also confirms the director's responsibility、Board of Directors Center to evaluate the company's behavior of the company's behavior。

In short，Unknown financial constraints of gambling agreements in the company、Under the absence of decision -making authority，Become a long -term difficult referee problem。Only in the context of the "Company Law" reform，Judging the referee logic of the gambling agreement，Promote the back -end reform of the company's capital system，and establish a power center for the company's business decision -making，Only the interests of all parties can be properly allocated，Take into account Bet365 lotto review contract autonomy and business integrity。

　　(This article is the National Social Science Fund general project "Research on Gambling Agreement Logic Logic of Gambling Agreement in the Fame of Company's Law Reform" (23BFX185) phased achievement) 

(Author is an associate professor of Law School in Shandong University)