1. The suitability obligation includes three meanings, one is to actively understand customers and products, the other is to sell (or provide) appropriate products (or services) to suitable financial consumers, and the third is to disclose investment risks

Main Facts:On January 5, 2018, Qian Fei signed the "Asset Management Contract" with Datong B Co., Ltd. (asset manager) and Bank of Shanghai (asset custodian) outside the case to purchase a certain asset management product. The product is suitable for investors with risk tolerance of C3 and above. In the "Commitment Letter", Qian Fei admitted that the asset manager and the asset custodian did not make any promises or guarantees on the principal and income of the asset management plan. On the same day, Qian Fei also filled out the "Risk Disclosure Statement", "Customer Risk Tolerance Questionnaire", "Investor Type and Risk Matching Notification and Investor Confirmation Letter", etc. Since then, the investment in the asset management product suffered a loss, and Qian Fei filed a petition with the court of first instance, requesting that Datong Company B return the investment principal. The court of first instance rejected Qian Fei's appeal, and Qian Fei appealed.

Referee point of view:The court of first instance held that the main focus of dispute in this case was whether the issuer and seller of the asset management product in question violated the investor suitability obligation. First, the investor’s basic information form, customer risk tolerance questionnaire, investor type and risk matching notice, investor confirmation letter, and double-recorded video prove that the manager has assessed Qian Fei’s risk identification and risk tolerance . According to the customer risk tolerance questionnaire confirmed by Qian Fei, it was rated as C5. The risk level of the disputed product is lower than the suitability assessment made for Qian Fei, and there is no evidence to prove that there is inappropriateness or mismatch between the product issuer and sales organization when recommending the product to Qian Fei. Second, about risk disclosure. According to the Asset Management Contract Attachment 1 "Commitment Letter", "Datong B Co., Ltd. Asset Management Business Risk Disclosure Statement", "Investor Type and Risk Matching Notification and Investor Confirmation Letter", double-recorded videos, etc., it can be proved that the appellee is selling During the process, relevant disclosure obligations such as risk warnings and product descriptions have been fulfilled, and Qian Fei should have known about it. Third, Qian Fei checked her average annual income of more than 5 million in the past three years in the "Customer Risk Tolerance Questionnaire"; the proportion of annual household disposable income that can be used for financial investment (excluding savings deposits) is greater than 50%. Combining his commitments in the Asset Management Contract and other previous investment experiences, Qian Fei fully meets the conditions of a qualified investor, and he is qualified as the main buyer of the wealth management products involved in the case. To sum up, based on the fact that the appellee has provided evidence to prove that it has fulfilled its suitability obligation in the process of selling the asset management products involved. Regarding the content of the above-mentioned judgment, the court of second instance believed that it was not inappropriate, and finally rejected Qian Fei's appeal and upheld the original judgment.

2.In the legal relationship in which the fund manager entrusts a third party to raise funds for the fund, on the premise that there is evidence that the third party has fully performed the relevant "Financing Consultant Agreement", if the fund manager has actually paid part of the financing to the third party If the third party fails to provide relevant financing services, the fund manager shall not be exempted from its subsequent payment obligations on the grounds that the third party has not provided relevant financing services. In addition, the fund manager shall not use the "Financing Consulting Agreement" signed separately with the third party to oppose the third party. payment obligations under an agreement with that third party

Case：Dispute over entrustment contract between Beijing Runfeng Wealth Investment Center (Limited Partnership) and China Venture Capital Asset Management Co., Ltd. [(2022) Jing 01 Min Zhong No. 868]

Main Facts：In July 2015, Party A's Runfeng Center signed an "Agreement" with Party B's venture capital company, and Party A hired Party B to be the financial advisor for Party A's new energy and environmental protection industry fund financing. The scope of work of the financial consultant is to assist Party A in designing a new energy and environmental protection industry fund financing plan or fundraising plan on the basis of preliminary due diligence on Party A, that is, the new energy and environmental protection industry fund established for Party A. The limited partnership capital is 1.5 billion yuan, and the financing/raising period does not exceed 5 years. The two parties also made a detailed agreement on the specific services of financial consulting work, consulting fees (paid annually, 0.5% of the fundraising amount), and liability for breach of contract. According to the agreement, the venture capital company introduced the investor Xinyuan Company for the industrial fund established by Runfeng Center in February 2016, and successfully raised 1.5 billion yuan. Xinyuan Company withdrew from the industry fund involved in the case in August 2020. Since then, Runfeng Center has paid consulting fees of 7.5 million yuan, 7.5 million yuan and 2 million yuan to the venture capital company in August 2015, August 2016 and December 2017 respectively, and has not paid any more to the venture capital company. cost. The venture capital company then filed a lawsuit with the court of first instance, requesting to order Runfeng Center to pay the arrears of financial consulting fees and liquidated damages. In the first trial, the venture capital company won the case, and Runfeng Center refused to accept it and lodged an appeal.

Referee point of view：The court of second instance held that, first of all, the "Agreement" involved in the case was the true expression of the parties' intentions and did not violate the mandatory provisions of national laws and administrative regulations. It should be legal and valid, and both parties should perform according to the contract. Secondly, Runfeng Center acquiesced that the venture capital company had provided consulting services by actually paying a total of 17 million yuan in financial advisory fees, while Runfeng Center stated that "the venture capital company did not participate in the design of the new financing plan after July 2018, so Since the "Agreement" does not stipulate this, and Runfeng Center cannot prove that the two parties have reached an agreement on the modification of the "Agreement", it is not accepted. Thirdly, even if the effective legal documents prove that Runfeng Center signed a new financial consultant contract with a person outside the case after July 2018, according to the principle of privity of contract, the new financial consultant contract cannot challenge the "agreement" involved in the case. " payment obligations under. The court of second instance rejected Runfeng Center's appeal and upheld the original judgment.

3.   In the legal relationship in which the fund manager entrusts a third party to provide relevant services for the fund, it should combine the specific provisions of the relevant service agreement on the service content, the conditions and methods of service fee payment, as well as the term of the agreement and whether the service provider can provide evidence to prove its Has actually provided all the service content stipulated in the service agreement, etc., and comprehensively judges whether the service provider has the right to obtain part or all of the service fees stipulated in the service agreement

Case：Shenzhen Qianhai Dingbang Fund Management Co., Ltd. and Beijing Guide Venture Capital Management Co., Ltd. service contract dispute [(2022) Jing 01 Min Zhong No. 5356]

Main Facts：In August 2017, Guide Startup Company (Party A) and Qianhai Dingbang Company (Party B) signed the "Consulting Service Agreement", agreeing that Party B is "Zhuhai Guide Mengtong Venture Capital Partnership (Limited Partnership)" (that is, the fund involved in the case ) investment and operation, and provide professional services to clients (that is, fund investors involved in the case) (including but not limited to providing investment and financing strategy consultation to Party A, recommending clients and assisting in signing fund contracts; confirming whether clients are qualified Investors; assess the risk tolerance of customers; provide customers with guidance on equity fund investment knowledge; conduct risk education for customers to improve their risk identification ability; answer customers' questions, help customers understand the content of product documents, and assist customers in handling accidents situation; risk warnings to customers, etc.). In addition, Guide Venture Company is the executive partner of the fund involved in the case. In addition, the two parties also agreed that the consulting service fee paid by Party A to Party B shall be calculated according to a certain percentage of Party B’s total amount of fundraising and the corresponding excess income (if any) corresponding to the total amount of fundraising, including fixed and floating parts. There is a calculation formula for the consulting service fee, and the floating part = 50% of the performance management remuneration collected by Party A in accordance with the "Zhuhai Guide Mengtong Venture Capital Partnership (Limited Partnership) Partnership Agreement". In 2018, Guide Startup Company paid 2.5296 million yuan to Dingbang Company, and the transfer was used for the sales fee of Guide Mengtong Fund. On September 10, 2020, Guidance Venture Company issued a liquidation announcement of Guidance Mengtong Investment Fund, which stated that the excess income received by the general partner (fund management company) was 9.1951 million yuan. Qianhai Dingbang Co., Ltd. failed to ask for the floating service fee from the guide startup company, so it filed a lawsuit with the court of first instance, requesting that the guide guide startup company pay the consulting service fee of 4.5975 million yuan and the interest loss for the deferred payment. The court of first instance rejected its petition, and it appealed against the appeal.

Referee point of view:The court of second instance held that the first dispute in this case is whether the services of Qianhai Dingbang Company are limited to the stage of fund raising or cover all stages of fund raising and operation, and whether the service content is limited to recommending customers to complete fund raising or also includes customers after the fund raising is completed. Communication and maintenance, correspondingly, whether Qianhai Dingbang Company has completed all the service contents; secondly, whether the floating part of the payment of consulting service fees is conditional on the completion of all service contents by Qianhai Dingbang Company, and whether Qianhai Dingbang Company completes the fund raising immediately The floating portion of the service fee can be obtained directly. Regarding focus one, the court of second instance held that the services of Qianhai Dingbang Company should cover all stages of fund raising and operation, including customer maintenance and communication after fund raising, but Qianhai Dingbang Company did not complete all service contents. There are several reasons. First, the "Consulting Service Agreement" clearly stipulates that the services provided by Qianhai Dingbang Company are not limited to facilitating client investment and completing fund raising, but also cover the operation stage of the fund. Moreover, the specific service content stipulated in the agreement is also It is not limited to the fundraising stage; secondly, the service period stipulated in the agreement is ten years, obviously the services provided by Qianhai Dingbang Company should not be limited to the fundraising stage; thirdly, Qianhai Dingbang Company clearly admitted its service content in the first instance of this case Including introducing investors and maintaining investors to guide start-up companies. In addition, because Qianhai Dingbang Company did not submit any evidence of communication and maintenance with customers after the completion of fund raising in the first and second trials, and Guidance Start-up Company did not recognize this, so it should be determined that Qianhai Dingbang Company had completed fund raising. After that, the service of communication and maintenance with customers was not carried out. With regard to focus point 2, the court of second instance held that the payment of the floating part of the consulting service fee was conditional on the completion of all service contents by Qianhai Dingbang Company, and that Qianhai Dingbang Company only completed the fund raising and was not entitled to the floating part of the service fee. First, from the nature of the service contract and the specific provisions of the contract, the floating part corresponds to the excess return when the fund exits, and should correspond to the corresponding service content generated by operation and exit, rather than based on recommending customers and completing fund raising; Second, from the perspective of specific interest calculations, the excess income sharing depends on the investment income of the fund, and at the same time, it also requires Qianhai Dingbang Company to fully perform its contractual obligations. Third, from the perspective of the liability agreement for breach of contract, the Consulting Service Agreement stipulates that the party that fails to perform its obligations shall compensate the other party for all losses caused. If Qianhai Dingbang Company fails to complete the corresponding services after the fund raising, it can still It is illogical to obtain floating returns for excess returns. To sum up, it should be determined that Qianhai Dingbang Company’s full performance of contractual obligations and Mengtong Fund’s due settlement and excess returns are both necessary conditions for Qianhai Dingbang Company’s request to guide start-up companies to pay the floating portion of consulting service fees. No. The court of second instance rejected the appeal of Qianhai Dingbang Company and upheld the original judgment.

4.   Under the condition that the private equity fund manager/sales agency has properly fulfilled the obligations of risk disclosure and investor suitability management, the unilateral commitment made by the resigned fund salesperson after the expiration of the private equity fund invested by the investor shall not be considered It is regarded as a promised return/rigid payment, and investors should bear investment losses by themselves

Case：Zhu Feng, Shanghai Shangshan Fund Sales Co., Ltd. and other property damage compensation dispute civil first-instance civil judgment [(2020) Shanghai 0115 Minchu No. 80168]

Main Facts：On May 18, 2016, Dongrong Company and Shangshan Company signed the "Agency Sales Service Agreement", agreeing that Shangshan Company will provide agency sales services for various private equity fund products under Dongrong Company. From May 2016 to June 2017, Zhu Feng subscribed and purchased private equity funds through Shangshan Company many times, and kept the "Membership Application Form", "Private Equity Investment Fund Qualified Investor Commitment Letter", "Application Form for Fund Account Business (Individual)", "Application and Confirmation Letter for Transforming Ordinary Investors into Professional Investors", "Investment Basic Knowledge Test Questions", "Private Equity Fund Investor Risk Questionnaire", "Fund Investor Risk Evaluation Questionnaire (Personal Edition)" and other materials, Shangshan Company also has a record of telephone return visits to the plaintiff. The above materials clearly state that Zhu Feng promises that she is a qualified investor of a private equity investment fund, applies for fund investment business, transforms from an ordinary investor into a professional investor, and after being transformed into a professional investor, she will independently bear the possible risks and consequences. The risk tolerance level is C4 growth type, and the investment attitude is to seek higher returns and growth of funds, and is willing to bear limited principal losses for this purpose. In November 2017, as a fund share holder, Zhu Feng signed the "Dongronghui Wenhui No. 1 Fund Private Fund Contract" with Dongrong Company as the fund manager and Hengfeng Bank Co., Ltd. as the fund custodian. The "Important Reminder" of the contract states that the fund manager reminds investors of the "buyer's responsibility" principle of fund investment. After making an investment decision, the investment risks caused by changes in the fund's operating conditions and net value of the fund shall be borne by the investors themselves. , the custodian and sales agency shall not bear the economic and legal responsibilities arising from the design, arrangement, management and operation mode of the Fund. Various investment risks are specified in the "Risk Disclosure Statement (2) General Risk Disclosure" of the contract. In the "Section 19 Risk Disclosure" of the contract, there is a special reminder in bold and bold: Even if the manager has disclosed the possible risks, the Fund may still have risks that have not been disclosed. The possibility of loss or even total loss. At the same time, the past performance of the managers and other relevant institutions and personnel under the fund does not represent the actual effect of the future operation of the fund product. This product has certain investment risks. Investors should fully understand the investment of the fund. risk, the manager does not guarantee the minimum return or the principal of the fund will not be lost. The contract also specified that the plaintiff's purchase amount was 1 million yuan. The plaintiff signed at the multiple signatures set up in the contract. On the day when the above-mentioned contract was signed, the plaintiff paid 1 million yuan for the purchase of Dongronghui Wenhui No. 1 Private Equity Fund. In addition, Lu Juan was originally an employee of Shangshan Company, and she was the actual manager of Shangshan Company's agency sales of the funds involved. As of the court date on December 15, 2020, the liquidation of the above-mentioned funds has not been completed, and Zhu Fengqi has not received the income distribution of the above-mentioned funds. So Zhu Feng filed a lawsuit with the court, requesting that Shangshan Company and Lu Juan should be ordered to pay the investment principal and interest on the grounds that Shangshan Company and Lu Juan lured him to purchase the fund involved by promising fixed income to be paid rigidly and without financial risks, etc. The court ordered Lu Juan, the shareholder of Shangshan Company, to bear joint and several liability for the above-mentioned debts of Shangshan Company.

Referee point of view:After hearing, the court held that Dongrong Company’s fund opening announcement and the fund subscription contract signed by the plaintiff and Dongrong Company repeatedly clarified that the fund did not guarantee the principal and income, and that there was a possibility of partial or even total loss of the fund principal. The signature of the investor's signature is required in many places, and it should be deemed that the plaintiff has been aware of this. Now the plaintiff only bases his denial of the above objective facts on the basis of the recorded conversation with Lu Juan more than two years later, which cannot be established.

5.  Investors who purchase legally established fund products and suffer property losses should claim their rights to the fund manager and custodian in accordance with relevant laws and regulations and the fund contract. No right to claim liability for damages from the institution to which the promoter belongs

Case：Ren Hongni, Shanghai Haomai Management Consulting Co., Ltd. Dalian Branch and other property damage compensation disputes [(2022) Liao 02 Min Zhong No. 102]

Main Facts：Ren Hongni, through the introduction of Ge Mingmei, the person in charge of the Dalian branch of Shanghai Haomai Management Consulting Co., Ltd., paid 3 million yuan in April 2018 to purchase the Jingan-Xingyuanhang No. 3 tiered fund. The investment period is 12 months, and the fund manager is Shanghai Tongjiang Asset Management Co., Ltd., and the fund custodian is Hengtai Securities Co., Ltd. Afterwards, Shanghai Tongjiang Asset Management Co., Ltd. was disqualified as a fund manager by the Association. Ren Hongni appealed to him for the return of investment funds and interest but failed, so she sued Dalian Branch of Shanghai Haomai Management Consulting Co., Ltd. and Shanghai Haomai Management Consulting Co., Ltd. The court held that Ge Mingmei did not disclose the risks of the funds involved in the case, and believed that her promotion of the funds involved in the case was an official behavior, and the two defendants should bear the liability for compensation.

Referee point of view:The court of first instance held that the fund involved in the case was raised by the manager itself without entrusting a sales agency. Therefore, Ge Mingmei's behavior of promoting the fund involved in the case should be regarded as her personal act, not a professional act. Moreover, the existing evidence cannot prove that there is any connection between the funds involved in the case and the Dalian branch of Haobuy. Therefore, Ge Mingmei's promotion behavior does not constitute apparent agency. In addition, the fund involved in the case is a legal product established in accordance with the law. Even if the plaintiff suffers losses, he should claim his rights to the fund manager and custodian according to the fund contract and other evidence. Therefore, Ren Hongni's claim to the two defendants for damages is not supported. Ren Hongni refused to accept and appealed, and the court of second instance upheld the original judgment.

6.   Where employees of a commercial bank illegally absorb public deposits and recommend customers to buy non-bank wealth management products by selling the bank's wealth management products, and the commercial bank also has faulty behaviors in violation of the rules of prudent operation such as ineffective management and supervision of employees, the bank shall be responsible for its fault. To the extent that the investor is liable for property damage compensation.

Case：Huaxia Bank Co., Ltd. Beijing Changan Sub-branch and other property damage compensation disputes [(2021) Jing 02 Min Zhong No. 16574]

Main Facts：From 2012 to 2013, Li Shuxiang had purchased wealth management products sold and recommended by its staff at the Chang'an branch of Huaxia Bank many times. On March 7, 2014, Li Shuxiang signed the "Beijing Yuanheng Tongwei Investment Center (Limited Partnership) Limited Partnership Agreement" under the recommendation and introduction of Zhao and Wu, employees of Huaxia Bank's Chang'an Branch. The partnership agreement stipulates that the amount of Li Shuxiang's participation as a limited partner is RMB 1.1 million. Subsequently, Li Shuxiang remitted 1.1 million yuan to the account of Beijing Yuanheng Tongwei Investment Center. After investigation, the investment center was invested and established by Ji Mou, who was not involved in the case, and Yuantai Investment Fund Management Co., Ltd., who was not involved in the case, as partners. On March 18, 2015, after the expiration of the date for returning the principal and income of the partnership capital stipulated in the partnership agreement and its attachments, Beijing Yuanhengtongwei Investment Center, Ji and Yuantai Fund Investment Management Co., Ltd. did not pay Li Shuxiang the partnership Fund principal and agreed income.

On June 20, 2017, the Beijing Bureau of the China Banking Regulatory Commission found that during the period from 2013 to 2015, Huaxia Bank Beijing Branch had a number of employees illegally recommending and selling private equity funds and other third-party wealth management investments to customers that were not consigned by the bank. products, and impose administrative penalties in accordance with relevant laws and regulations. On July 7, 2020, the court ruled that the defendants Ji and Zhao constituted the crime of illegally absorbing public deposits, and ordered them to refund the investors' economic losses. The estimated amount to be refunded to Li Shuxiang was 20,031.05 yuan. Li Shuxiang is now suing the court, demanding that Beijing Branch of Hua Xia Bank and Chang'an Branch of Hua Xia Bank compensate her for the losses suffered. The first instance ruled that Hua Xia Bank Beijing Branch and Hua Xia Bank Chang'an Sub-branch should pay Li Shuxiang 215,993.79 yuan in compensation for property damage, and rejected Li Shuxiang's other claims. Both parties were dissatisfied with the judgment and filed an appeal.

Referee point of view：According to the ascertained facts, Zhao’s method of selling the bank’s wealth management products when he was the customer manager of Hua Xia Bank’s Chang’an Sub-branch was basically the same as the way of selling the bank’s wealth management products “Yuanheng Tongwei” to Li Shuxiang privately, and Zhao’s identity And the previous transaction service relationship between the two parties provided conditions for Zhao to successfully sell the wealth management products involved in the case to a certain extent. As a branch of a commercial bank and Zhao's work unit, Huaxia Bank Chang'an Sub-branch should be able to foresee and take corresponding measures to avoid the risks brought about by its employees' private sales, but objectively the bank failed to adopt effective internal control measures Discover Zhao's private sale behavior in time. Zhao's illegal act of illegally absorbing public deposits by selling "Yuanheng Tongwei" and Hua Xia Bank's Chang'an branch's violation of prudent management rules combined to cause Li Shuxiang's investment loss, and there is a legal cause and effect between Li Shuxiang's investment loss relation. After deducting the compensation amount in the criminal case, the court of first instance confirmed that it was not inappropriate for Huaxia Bank Beijing Branch and Huaxia Bank Changan Subbranch to assume the liability for compensation within the scope of 20% of the fault level, so it was upheld.

7.  The trustee of the trust contract shall, in accordance with the provisions of the trust document, fulfill his duties and fulfill his management duties in line with the principles of honesty, credibility, prudence and effective management. As for whether the obligation of due diligence has been fulfilled, the judgment is mainly based on whether the entrusted party uses the trust property in accordance with the trust contract, whether it fulfills the disclosure obligation, and whether it conducts prudent and effective management in accordance with the contract.

Case：Contract dispute between Hong Yan and China Minsheng Trust Co., Ltd. [(2021) Beijing 74 Minzhong No. 363]

Main Facts：On May 16, 2017, Hong Yan signed a trust contract with Minsheng Trust. The trust contract stipulates that the trustee subscribes for the entire limited partnership share of 200 million yuan of the Bohai Rim Partnership with the trust property; at the same time, the trust contract also stipulates that the partnership enterprise will invest 85 million yuan in Moment Internet and hold 85% of the shares. It also indirectly holds 45% of the equity of Moment Media Company and 34% of the equity of Mobile Video Company through the investment of 30 million yuan from Moment Internet. The next day, Hong Yan transferred the subscription money to Minsheng Trust. Since then, Minsheng Trust has paid the trust funds to Bohai Rim Partners in three installments and issued several management reports. After that, Moment Internet used the trust funds for business matters unrelated to the target equity investment, and the equity of Moment Media Company and Mobile Video Company was not transferred to Moment Internet. Hong Yan claimed that Minsheng Trust failed to fulfill its investment obligations in the target equity, which constituted a breach of contract, and demanded the termination of the trust contract and the return of trust funds and interest. The court of first instance rejected her claim, and Hong Yan filed an appeal.

Referee point of view：The court held that when the trust contract was concluded, the settlor and the trustee had reached a relatively clear agreement on the target investment intention of the trust plan, and the trustee should fulfill his duties in accordance with the provisions of the trust document, and manage According to the principle of the above-mentioned investment intention to complete their own management responsibilities. Regarding whether Minsheng Trust has fulfilled its fiduciary obligations such as prudent management and use of trust property under the trust contract, first of all, from the perspective of the use of trust property, during the duration of the trust plan, Minsheng Trust has paid the paid-in capital contribution to the environment in accordance with the contract. Bohai Partnership used it to obtain the limited partnership share of the partnership enterprise, and used the trust property to pay for the trust industry protection fund and related trust fees. Secondly, from the perspective of the fulfillment of the trustee's disclosure obligation, Minsheng Trust reported the management and use of the above-mentioned trust property to the trustor on a quarterly basis. Thirdly, from the perspective of the management of the trust property invested in the Bohai Rim Partnership, the trust contract stipulates that Minsheng Trust, as a limited partner, cannot participate in the management of the affairs of the Bohai Rim Partnership, but can only conduct necessary supervision as a limited partner. Therefore, the appellant claims that Minsheng Trust The failure of the trust to control the investment behavior of the Bohai Rim Partnership and Moment Internet under its actual control is a claim that it has not fulfilled its duty of diligence and responsibility, and lacks factual and legal basis. Therefore, the court of first instance confirmed that Minsheng Trust had paid the trust funds to Bohai Rim Partnership in accordance with the agreement and that it had fulfilled relevant obligations.

8.  If fund investors know and agree in advance that the different funds managed by the fund manager have the same investment target, even if the investment target is a shareholder of the fund manager, it cannot be directly determined that the manager has transferred benefits through related transactions; The principle of restraint, the judicial power should not be excessively involved in the consideration arrangement of equity investment, and in the absence of evidence to prove the existence of illegal transactions, it cannot be deduced from the investment results that the previous investment behavior was improper

Case：Contract disputes between Deng Ling, He Zhili and others [(2021) Guangdong 0391 Minchu No. 7359]

Main Facts：In May 2016, Deng Ling signed the "Founder Bona Equity Investment Phase II Investment Fund Fund Contract" and "Subscription Risk Statement" with Bona Foundry and Casin Securities, in which Deng Ling is the investor and Bona Foundry is the manager , Casin Securities is a comprehensive custody service provider. In the "Investigation Questionnaire on Investors' Risk Tolerance", Deng Ling signed at the signing place, but the answers to various survey questions were blank; The ticked parts of the answers to the various survey questions on the Questionnaire are ticked √. In July 2016, Deng Ling paid the investment funds to the private equity fund liquidation special account through bank transfer. In the same year, Bona Founder increased capital in four times with the second phase investment fund of Founder Bona Equity Investment under its management, and finally held a 31.18% stake in Founder Zhilian. Fang Dezhi contacted one of Bona Foundry's shareholders. Deng Ling claimed that Bona Foundry had seriously violated relevant laws and regulations and contractual provisions during the process of raising, investing, and managing the private equity funds involved in the case, and that Bona Foundry and the target company Fangde Zhilian had transferred benefits through related transactions. As an investor, I sued the court on the grounds that I have not received any investment income so far, requesting the termination of the "Founder Bona Equity Investment Phase II Investment Fund Fund Contract", and Bona Foundry to compensate Deng Ling for the principal and interest. The court of first instance rejected Deng Ling's petition, and she appealed against it.

Referee point of view：The court held that, regarding the validity of the fund contract, first of all, Deng Ling, as a person with full capacity for civil conduct, should be able to recognize and understand the legal consequences of signing the blank questionnaire. The obligation of investor questionnaire survey and evaluation and risk warning, notification, and explanation; secondly, Bona Foundry has obtained the qualification of fund manager before the operation of the fund involved, so the fund contract is authentic and valid. Regarding the question of whether Deng Ling has the right to claim termination of the contract, that is, whether Bona Foundry has committed a serious breach of contract. First of all, the two fund contracts involved in the case clearly stipulate that the funds used by the two funds for the equity of the investor, Dezhilian, account for no less than 98% of the total assets of the fund. The situation of value-added and share expansion is informed and agreed; secondly, Fangde Zhilian holds the equity of Bona Foundry. website, the investment transaction between the two companies should not be determined to be an improper transaction just because the fund manager did not disclose the relationship between the two companies; thirdly, in the field of equity investment, the equity transaction is not entirely based on the company’s net assets. In the case that Deng Ling did not have sufficient evidence to prove the existence of illegal transactions, according to the principle of judicial modesty, the judicial power should maintain a prudent attitude and should not be excessively involved. Therefore, this court will not judge this, but it cannot judge from investment Based on the results, it was inappropriate to deduce that the previous investment behavior was improper; finally, there was no evidence that Bona Foundry had violated regulations and failed to fulfill its prudential obligations, information disclosure or administrator obligations. In conclusion, during the process of performing the contract, Bona Foundry did have some violations of the contract, but it was not enough to achieve the purpose of the contract, nor did it meet the conditions for the termination of the contract. Accordingly, the court of second instance finally rejected Deng Ling's appeal and upheld the original judgment.

9.  If the investment decision involved in the case is approved by the investment committee of the fund involved in the case, and the fund investor cannot prove that the executive partner of the fund involved in the case has obvious faults in the process of capital investment and post-investment management of the investment project involved in the case, it cannot It is determined that the fund manager involved in the case has been negligent in performing the duties of the executive partner of the fund involved in the case

Case：Gansu Science and Technology Investment Group Co., Ltd., Qingdao Yuanrong Financial Investment Co., Ltd., and other disputes over violations of the rights and interests of corporate investors [(2022) Lu Min Zhong No. 1882]

Main Facts：In October 2017, Gansu Science and Technology Investment Co., Ltd. signed the "Partnership Agreement of Gansu Low Carbon Industry Technology Development Investment Fund (Limited Partnership)" with Qingdao Yuanrong Company and Gansu Low Carbon Industry Technology Development Investment Fund Management Center (Limited Partnership). It is agreed that all partners will jointly establish the Gansu Low Carbon Fund. Gansu Science and Technology Investment Company and other three companies are limited partners; Qingdao Yuanrong Company and Gansu Low Carbon Industry Technology Development Investment Fund Management Center (Limited Partnership) are general partners. Qingdao Yuanrong Company acted as the executive partner. In November 2017, Gansu Low Carbon Fund Investment Decision-Making Committee formed a resolution to invest 30 million yuan in Jupeng Food Company; on the same day, Gansu Low Carbon Fund and Zhang Xiuling signed the "Share Transfer Agreement" and "Share Transfer Agreement" for the target company Jupeng Food Company Supplementary Agreement to the Agreement. On November 14, 2017, the Gansu Low Carbon Fund Investment Decision-Making Committee made a resolution to invest 100 million yuan in Baofeng Commander Company. In November 2021, Gansu Science and Technology Investment Company sent a letter to Qingdao Yuanrong Company, requesting Qingdao Yuanrong Company to take corresponding legal actions against Zhang Xiuling's loan and collect it. In November 2021, Gansu Science and Technology Investment Company sent a letter to Qingdao Yuanrong Company, requesting Qingdao Yuanrong Company to take corresponding legal actions, and proposed to Baofeng Holding Company and Feng Xin to perform repayment and guarantee obligations to Gansu Low Carbon Fund. In December 2021, Gansu Science and Technology Investment Company filed a lawsuit with the court of first instance, arguing that Qingdao Yuanrong Company, as an executive partner, neglected to exercise its power as an executive affairs partner and violated Gansu Science and Technology Investment Company’s legal rights as a partner. Qingdao Yuanrong Company made compensation to Gansu Low Carbon Fund. The court of first instance ruled to reject Gansu Science and Technology Investment Co., Ltd.'s claim, and Gansu Science and Technology Investment Co., Ltd. lodged an appeal.

Referee point of view：The court of second instance held that Gansu Science and Technology Investment Co., Ltd. should produce evidence to prove that Qingdao Yuanrong Co., Ltd. was negligent in performing its duties as an executive partner. The two investments involved in the case were made by Qingdao Yuanrong Company in accordance with the resolution of the Investment Decision-Making Committee of Gansu Low Carbon Fund, and the members of the Investment Decision-Making Committee appointed by Gansu Science and Technology Investment Co., Ltd. also signed and agreed in the resolution, and there is no evidence to prove that The two investments involved in the case exceed the agreed direction and business scope, and should be deliberated and resolved by the general meeting of partners. Regarding the issue of whether Qingdao Yuanrong Company was lazy in claiming creditor’s rights in a timely manner, after the two investments involved in the case expired, Qingdao Yuanrong Company took appropriate measures such as reminders and coordinating extensions, and the reason why it did not file a lawsuit against the two investments involved in the case , based on comprehensive considerations such as litigation costs, Gansu Science and Technology Investment Co., Ltd. cannot prove that Qingdao Yuanrong Co., Ltd. has subjective faults. Therefore, the existing evidence in this case is not sufficient to prove that Qingdao Yuanrong Company was negligent in performing its duties as an executive partner, that is, Gansu Science and Technology Investment Company could not prove that Qingdao Yuanrong Company made the investment and post-investment of the two investment funds involved in the case. There are obvious mistakes in the management process.

10.    Shareholders sign a VAM agreement on the performance of the target company, if the agreement does not directly cause damage to the interests of the target company or other shareholders and investors, and it cannot be determined that the shares of the target company subscribed by the affiliated company of the lead brokerage firm are the lead brokerage firm The VAM agreement shall be valid when

Case：Contract disputes between Beijing New Times Hongtu Fund Management Co., Ltd. and Beijing Juchuangxiang Technology Partnership (Limited Partnership) [(2021) Jing 01 Min Zhong No. 7803]

Main Facts：On February 2, 2016, Hongtu Fund Company and Bihe Technology Company signed the "Share Issuance Subscription Agreement", agreeing that Hongtu Fund Company will subscribe for 1.111 million shares issued by Bihe Technology Company. In May 2016, New Times Securities Co., Ltd. and Bihe Technology Co., Ltd. signed the "Continuous Supervision Agreement". In April 2017, Hongtu Fund Company (Party B) signed the "Supplementary Agreement" with Weiyao Network Company (Party A), Liu Junfeng (Party C), and Polymerization Partners (Party D), which stipulated that Rubihe Technology Co., Ltd. From 2016 to 2018, if the total net profit realized in any year fails to meet the promised performance, Party B has the right to require Party A, Party C, and Party D to repurchase the subscription price calculated by Party B based on 10% of the annualized income. The shares held by Bihe Technology Co., Ltd. According to another investigation, the "Supplementary Agreement" involved in the case has not been disclosed by Bihe Technology Company. The net profit of Bihe Technology Company in 2016, 2017, and 2018 did not meet the stipulations in the Supplementary Agreement. In March 2019, Hongtu Fund Company required Bihe Technology Company, Liu Junfeng, Weiyao Network Company, and Juju Creative Partners to perform the repurchase obligation in accordance with the agreement. Liu Junfeng, Weiyao Network Co., Ltd., and Gathering Creative Partners filed a lawsuit with the court of first instance with Hongtu Fund Co., Ltd. and New Times Securities Co., Ltd. as defendants, claiming that the Supplementary Agreement involved in the case is invalid.

Referee point of view：The court of first instance held that, in accordance with relevant laws and regulations, market makers are not allowed to make agreements on share repurchases, cash compensation, etc. with listed companies and their shareholders. The signing of the "Supplementary Agreement" involved in the case is obviously due to Hongtu Fund Company taking advantage of its parent company New Times Securities Company's superior position as a supervisory securities company to seek benefits for itself, and the information of the agreement has not been disclosed to other investors and the public, which will inevitably damage The lawful rights and interests of the majority of non-specific investors are acts that harm the public interest, and will also damage the country's financial order and financial security. The Supplementary Agreement involved in the case should be deemed invalid. The court of second instance held that the content of the Supplementary Agreement did not involve the specific rights and obligations of Bihe Technology Company, nor was it directly related to other shareholders. Loss of interests of other shareholders. Based on the known facts of the case, it is impossible to determine that the stocks subscribed by Hongtu Fund Company are the market-making treasury stocks of New Times Securities Company, and it is also difficult to directly determine that Hongtu Fund Company and New Times Securities Company engaged in insider trading and used inside information to harm the public interest. Therefore, the "Supplementary Agreement" involved in the case is valid, and the application of the law in the first-instance judgment was wrong, so the judgment should be amended.

11.  Equity repurchase, monetary compensation, and other adjustments to the valuation of the future target company designed in the equity financing agreement are normal incentive competition behaviors in the capital market, and are in line with the general business practice of "vs. "debt" or it is obviously unfair, and the principle of fairness should not be applied to intervene and adjust the agreement of the parties; in addition, the clause that the actual controller pays the investor performance compensation is essentially the contractual obligation of the actual controller if the target company fails to reach the established performance target. Conditional, rather than the actual controller’s failure to perform the contractual obligations, the provisions of liquidated damages adjustment should not apply

Case：Zhai Hongwei, Qinghai Guoke Venture Capital Fund Contract Dispute Case [(2022) Supreme Court Minshen No. 418]

Main Facts：Zhai Hongwei is the major shareholder/actual controller of Huaxin Company. After Qinghai Guoke Venture Capital Fund made an equity investment in Huaxin Company, in September 2016, as Party A, signed a "Supplementary Agreement" with Zhai Hongwei as Party B and agreed , if the actual net profit of Huaxin Company in 2016-2018 does not reach 90% of the minimum promised performance, Party A has the right to require Party B to compensate Party A in cash or equity with its own funds, cash dividends or self-raised funds Compensation (choose one). Party B shall pay Party A the annual compensation amount within 3 months after the company's annual audit report is issued and after Party A sends Party B a written notice requesting payment of cash compensation. Since then, Huaxin failed to meet the promised performance, and Qinghai Guoke Venture Capital Fund asked Zhai Hongwei to fulfill the obligation of cash compensation, but failed. Qinghai Guoke Venture Capital Fund then sued the court to demand that Zhai Hongwei perform the contract. The court of second instance in this case supported part of the appeal of Qinghai Guoke Venture Capital Fund. Zhai Hongwei refused to accept it and applied to the Supreme People's Court for a retrial.

Referee point of view：After trial, the Supreme People's Court held that the purpose of the equity financing agreement is to solve the uncertainty of the target company's future development, information asymmetry and agency costs between the two parties, including equity repurchase, monetary compensation, etc. The agreement to adjust the valuation is a normal incentive competition behavior in the capital market. The calculation method of compensation agreed by the two parties reflects the incentive function of this investment model for the operation of the actual controller, and is in line with the general business of gambling between shareholders in equity investment. Conventional practice does not constitute a situation of "obvious shares and real debts" or obvious unfairness, and the principle of fairness should not be applied in accordance with the law to intervene in the adjustment of the rights and obligations agreed by the parties. Although the total three-year performance compensation calculated according to the agreement is higher than the investment principal, since the agreement is the result of free negotiation between the two parties, the financing party should bear the commercial risk. In addition, the performance compensation stipulated in the equity financing agreement is based on the uncertainty of the target company’s operation in the next three years, valuing its profit, and setting a contractual obligation for the actual controller to achieve the net profit target. This obligation has uncertainties. sex. Therefore, the agreement stipulates that if the target company fails to achieve the established performance target, the actual controller shall pay the investor the performance compensation. Regulation. Accordingly, the Supreme People's Court finally rejected Zhai Hongwei's application for retrial.

12. As far as the "Investment Memorandum" signed by private equity fund A and the controlling shareholder of the target company is concerned, if it cannot be proved that the "Investment Memorandum" is the true expression of the target company's intention or has been ratified by the target company afterwards, it should only be signed between private equity fund A and the target company. Legally binding between the controlling shareholders of the target company; if private equity fund A invests indirectly in the target company through private equity fund B, its investment income can only be determined after private equity fund B has disposed of the remaining assets, and its investment profit and loss in the target company can be clarified to be honored later

Case：Contract dispute between Beijing Heguang Jiaying Investment Center (Limited Partnership) and Shi Wenyong [(2022) Jing 01 Min Zhong No. 46]

Main Facts：Jinxin Center is a private equity fund established in June 2015, and its manager is Jinxin Rongda Company. In May 2016, Jinxin Rongda Company, Heguang Jiaying Center and other parties signed a Jinxin Center partnership agreement, and agreed: the purpose of the partnership is to subscribe for the equity of Feiliu Company, and all partners entrust the general partner Jinxin Rongda Company as the executive partner , all other partners are limited partners. In the same month, Heguang Jiaying Center paid investment funds to Jinxin Center. Shi Wenyong is the controlling shareholder of Feiliu Company. In August 2017, Heguang Jiaying Center authorized Chen Zuotao and Shi Wenyong to sign the "Investment Memorandum", and agreed that: in May 2016, Heguang Jiaying Center will participate in the "Feitian" project (i.e. Feiliu IPO project) through Jinxin Center, and actually With a capital contribution of 164.8 million yuan, the project was canceled in November 2016 for some reason. In June 2017, Jinxin Center transferred part of its assets to a third party, and returned funds totaling 145.1 million yuan to Heguang Jiaying Center in July and August 2017. For the unrecovered part of Heguang Jiaying Center’s actual capital contribution, Shi Wenyong will lend it to Heguang Jiaying Center in the form of an interest-free loan. Shi Wenyong agrees that within 5 working days after Jinxin Center disposes of the remaining assets (no later than 40 working days from the date of signing this memorandum), the investment in Heguang Jiaying Center will be settled at an annualized rate of 20% of the project principal based on the number of days actually used income. The actual exit amount of Guangjiaying Center in Jinxin Center and the interest-free loan provided by Shi Wenyong can be used for settlement and the investment income due to Guangjiaying Center, and Shi Wenyong will make up the difference on this basis. In August 2017, Wuhan Bangqiaorui Software Development Co., Ltd. transferred 19.7 million yuan to Luojia Company. Both Heguang Jiaying Center and Shi Wenyong recognized that Shi Wenyong had fulfilled the interest-free loan obligation under the Investment Memorandum. Heguang Jiaying Center filed a lawsuit with the court of first instance, requesting Shi Wenyong to repay the investment receivables and investment income. The court of first instance rejected all its appeals, and Heguang Jiaying Center appealed against the appeal.

Referee point of view：The court of second instance held that the "Investment Memorandum" was the true expression of Shi Wenyong's personal and Heguang Jiaying Center, and did not violate the mandatory provisions of laws and administrative regulations on validity, so it should be legal and valid. In addition, since Shi Wenyong did not provide evidence to prove that the "Investment Memorandum" was the true expression of Feiliu Company's intention or that Feiliu Company ratified it afterwards, the "Investment Memorandum" only produced legal binding force between Heguang Jiaying Center and Shi Wenyong himself. There is no situation where necessary parties are omitted. As to whether Shi Wenyong’s payment terms for the payment of investment income under the “Investment Memorandum” have been fulfilled, firstly, the purpose of signing the “Investment Memorandum” is to negotiate and arrange the future exit plan of Heguang Jiaying Center; secondly, Heguang Jiaying Center only Participated in the transaction at the level of fund investment (that is, joining Jinxin Center), but did not directly participate in the transaction at the level of equity investment of Feiliu Company, and the investment that Heguang Jiaying Center has withdrawn is all settled and reduced through Jinxin Center In addition, under the arrangement of Shi Wenyong, Heguang Jiaying Center has actually recovered all the investment funds of 164.8 million yuan; thirdly, according to the "Investment Memorandum", the investment income of Heguang Jiaying Center should be paid after the fund has disposed of the remaining assets. , Its investment profit and loss in the "Feitian" project will be cashed after it is clarified. At present, Heguang Jiaying Center has not submitted evidence to prove that the above conditions have been fulfilled. Therefore, Heguang Jiaying Center requires Shi Wenyong to pay investment income. There is no fact and law in accordance with. To sum up, the "Investment Memorandum" is Shi Wenyong's personal commitment to Heguang Jiaying Center's investment in the "Feitian" project. The fulfillment of this commitment depends on the completion of the liquidation of the entire investment project at the fund level. At present, the payment terms stipulated in the "Investment Memorandum" have not been fulfilled, and the appeal of Heguang Jiaying Center cannot be established and should be rejected.

13.  For private equity investment, if the investor is not a "private equity fund" registered with the Association, this situation will not affect the relevant "Equity Transfer Agreement" (or "Capital Increase Agreement") and a series of subsequent agreements (such as the "Guarantee Contract") ", etc.), relevant obligors (including repurchase obligors, guarantors, etc.) shall undertake corresponding contractual obligations in accordance with the law and agreement.

Case：Changchun Yincaitong Information Technology Co., Ltd. and Yingtan Huacai Enterprise Management Limited Partnership Enterprise Management Limited Partnership Guarantee Contract Dispute Civil Judgment of Second Instance [(2021) Jingminzhong No. 832]

Main Facts：In November 2017, Yingtan Huacai (Party A), Wang Simin (Party B 1), Zhou Huajie (Party B 2), Jiang Haibo (Party B 3), and Changchun Yincaitong (Party C) signed the "Equity Transfer Agreement" and agreed: Party A will 71 million yuan is the transfer of 10% of the equity of Party C held by Party B 1. Party B and Party C promise that after one year from the date of equity transfer, Party A’s dividends to Party C shall not be less than 35 million yuan. Otherwise, if A Party agrees to transfer all the equity, and Party B3 promises to purchase Party A's entire equity in Party C at a price of 85.2 million yuan in that year, and Party A will give up Party C's dividend. Yingtan Huacai paid all the equity transfer funds in accordance with the contract. In August 2018, the aforementioned parties signed the Supplementary Agreement to the Equity Transfer Agreement, stipulating that the latest date for Party C to pay dividends was January 31, 2019, but Party C did not pay dividends as agreed. Since then, Yingtan Huacai (Party A) and Jiang Haibo (Party B), Dongfang Tickets (Party C 1), Changchun Yincaitong (Party C 2), and Boduo Paper (Party C 3) have held meetings in July 2019 and 2020, respectively. In June, the "Reconciliation Agreement" and "Reconciliation Supplementary Agreement" were signed, agreeing on the issue of equity repurchase, Jiang Haibo will pay the repurchase money to Yingtan Huacai, and Dongfang Tickets, Boduo Paper, and Changchun Yincaitong will pay Jiang Haibo Obligation to assume unlimited joint and several liability. However, Jiang Haibo did not make the payment as agreed, and Yingtan Huacai filed a lawsuit with the court requesting that Dongfang Tickets, Boduo Paper, and Changchun Yincaitong should pay Yingtan Huacai the share repurchase money and liquidated damages, and bear the legal fees and preservation fees of the case. and legal fees. The court of first instance supported all the appeals of Yingtan Huacai. Dongfang Tickets, Boduo Paper, and Changchun Yincaitong appealed (one of the reasons for the appeal was that the court of first instance did not examine whether Yingtan Huacai was a private equity fund, whether it was subject to financial supervision, and whether its financial strength and source existed).

Referee point of view：The court of first instance held that in this case, the "Equity Transfer Agreement", "Supplementary Agreement to Equity Transfer Agreement", "Reconciliation Agreement", "Supplementary Agreement to Reconciliation" signed by Dongfang Tickets & Securities, Boduo Paper, Changchun Yincaitong, Yingtan Huacai and outsiders "Book" and other agreements are the true intentions of all parties. In the above-mentioned agreement, Jiang Haibo's agreement to repurchase the equity of the target company held by Yingtan Huacai in a timely manner when specific conditions are triggered does not violate the prohibitive provisions of laws and regulations. legally valid.

14. In the event that the target company violates the capital increase agreement and the purpose of the contract cannot be realized, the investor claims to return the principal and interest of the investment, which is actually a matter of the withdrawal of the target company’s shareholders. The company exits before completing the statutory capital reduction procedures

Case：Contract dispute between Beijing Yanhua Yongle Biotechnology Co., Ltd. and Beijing Fengyi Investment Management Co., Ltd. [(2021) Jing 03 Min Zhong No. 17932]

Main Facts：In June 2015, Yanhua Company (Party A) signed the "Capital Increase Agreement" with Hongtai No. 1 Fund (Party B, which is a contract fund, and Fengyi Company increased the capital of Party A on behalf of Party B), which stated: Party A's commitment With July 31, 2015 as the base date, submit listing application materials or small and medium-sized board IPO listing materials to the National Small and Medium Enterprise Transfer System before the end of September 2015. The agreement also stipulates that any party who violates any statement, guarantee and commitment in the agreement, or any clause of the agreement, constitutes a breach of contract, and the non-defaulting party has the right to demand comprehensive and full compensation from the breaching party. In July 2015, Fengyi Company paid the capital increase to Yanhua Company. In April 2016, Yanhua Company signed the "Supplementary Agreement" with Hongtai No. 1 Fund, stipulating that Party A should submit listing application materials or submit SME IPO listing materials before the end of July 2016. Later, Yanhua Company failed to submit listing application materials or listing materials within the time limit stipulated in the supplementary agreement, and Fengyi Company sued the court of first instance for termination of the "Capital Increase Agreement" and "Supplementary Agreement", and required Yanhua Company to Return the principal and interest of investment funds. The court of first instance supported the appeal of Fengyi Company, and Yanhua Company appealed against it.

Referee point of view：The court of second instance held that, according to the "Capital Increase Agreement" and "Supplementary Agreement", Yanhua Company's failure to submit listing application materials or listing materials within the agreed time limit constituted a breach of contract. The request to terminate the agreement on the grounds that the purpose of the contract in the Supplementary Agreement cannot be realized should be supported. Regarding whether Yanhua Company should return the principal and interest of Fengyi Company's investment funds, it actually deals with the withdrawal of Fengyi Company as the original capital increase shareholder, so the "Company Law" should be applied. Fengyi Company’s capital increase has been registered for industrial and commercial change, and the creditors of Yanhua Company have formed a basis of trust and interest; Fengyi Company has participated in the shareholders’ meeting of Yanhua Company and participated in voting, and has become a shareholder of Yanhua Company; Fengyi Company’s capital contribution It has been transformed into the equity of Yanhua Company, and it no longer enjoys any rights to the invested property, and, as a shareholder, it should bear corresponding responsibilities for the company's operation. Therefore, before Yanhua Company has completed the statutory capital reduction procedures, Fengyi Company shall not withdraw. Based on this, the court of second instance rejected Fengyi Company's request for Yanhua Company to return the principal and interest of the capital increase.

15.  There is no corresponding consideration for the guaranteed debt, and it is impossible for the husband and wife to live together and jointly produce and operate. If the target company expresses its intention to jointly undertake guarantee responsibilities with the shareholders of the target company for the debts of the investment institution, the debts guaranteed by the shareholders of the target company to the investment institution cannot be recognized as joint debts between the shareholders of the target company and their spouses

Case：Contract dispute between Beijing Wenxin Youpin Investment Fund (Limited Partnership) and Wang Xin et al. [(2022) Jing 03 Min Zhong No. 5945]

Main Facts：In November 2018, Wenxin Youpin Company (Party B) and Transv Company (Party A) signed the "Joint Investment Agreement for Film and TV Drama Projects", agreeing that: Party B will invest in Party A's TV series with an amount of 15 million yuan. Party B's investment is a fixed-income investment with an investment period of 12 months and an annualized rate of return of 15%. After the investment period expires, Party A will pay Party B's investment principal and investment income to Party B and Party A's legal representative Wang Mou voluntarily provide joint liability guarantee for Party B. In March 2021, Wenxin Youpin sent a "Contract Performance Notification Letter" to Transv, requesting Transv to pay all the investment principal and investment income, but failed. Wenxin Youpin Company then brought a lawsuit to the court, requesting that the company should be ordered to pay the investment principal of 15 million yuan, as well as investment income and liquidated damages. A bears joint responsibility for repayment. The court of first instance supported some of the claims of Wenxin Youpin Company, but held that Wang was the guarantor of the debt involved in the case, not the debtor, and it was difficult to determine that the guaranteed debt was a "joint debt of husband and wife" who had a joint willingness to borrow money. Therefore, the application of Wenxin Youpin Company to require Wang's spouse to assume joint repayment responsibility was rejected. Wenxin Youpin Company refused to accept and lodged an appeal.

Referee point of view：The court of second instance held that, first of all, Song did not sign any guarantee agreement related to the debt involved in the case, and Wenxin Youpin Company also failed to provide evidence to prove that Song had the intention to undertake joint guarantee responsibilities with Wang. Therefore, Song did not express the intention of "joint debt and joint signing". Secondly, the main debt and the guaranteed debt are two kinds of debts. Even if the main debt is recognized as the joint debt of the husband and wife because it is used for the joint life and production and operation of the husband and wife, the subordinate guaranteed debt cannot be directly recognized as the joint debt of the husband and wife, unless the king There was an act of abusing the independent status of the company's legal person and the limited liability of shareholders, otherwise, Wang's debt to Wenxin Youpin Company was a debt of joint liability based on guarantee liability rather than personality denial. In addition, the guarantee debt is the result of undertaking the guarantee responsibility, not the cause of the debt. There is no corresponding consideration, and the guarantee debt itself cannot be used for the joint living and joint production and operation of the husband and wife. Accordingly, the court of second instance finally rejected Wenxin Youpin’s appeal and upheld the original judgment.

16.  Whether the private equity fund can claim that the original (current) spouse of the actual controller of the target company bears joint and several liability for the share repurchase obligation depends on whether the spouse actually participates in the operation of the target company and whether it participates in the negotiation between the private equity fund and the target company on share repurchase matters. Based on comprehensive consideration of other aspects, and based on this, it can be concluded whether the relevant debt (that is, the share repurchase obligation of the actual controller of the target company) arises from the joint production and operation during the existence of the husband-wife relationship

Case：Dispute over contract between Guo Jia et al. and Zhuhai Hengqin Lerui Equity M&A Investment Fund Partnership (Limited Partnership) [(2021) Jing Min Zhong No. 208]

Main facts: In August 2017, Party A Zhuhai Hengqin Lerui Enterprise and Party B Weiwangming Company (“Target Company”) signed the “Share Issuance Subscription Contract”, agreeing that the target company will issue RMB ordinary shares to Party A. In the same month, Party A Yi Xiangfu Company (the controlling shareholder of the target company), Party A Er Hanying (the actual controller of the target company) and Party B Zhuhai Hengqin Lerui Enterprise signed the Supplementary Agreement. Agreement: Party A agrees that if any of the following circumstances occurs in the target company, the investor has the right to require one or more of Party A (repurchase entities) to be limited to the equity of the target company held directly or indirectly by the investor. Purchase of part or all of the equity held by the investor: (1) The target company fails to submit a qualified IPO application for listing on the Shanghai Stock Exchange or the Shenzhen Stock Exchange to the China Securities Regulatory Commission before December 31, 2018;...( 9) All matters mentioned in Item 1.3 (10) of this Supplementary Agreement (matters involving VIE) were not completed before December 31, 2017. The repurchase entity shall complete the repurchase transaction of relevant equity and pay the repurchase price within 20 working days after the investor submits a written repurchase request. If Party A violates the repurchase obligation, the investor has the right to require Party A to continue to perform and pay additional liquidated damages. In the same month, Zhuhai Hengqin Lerui Enterprise paid 100% of the investment to the target company. Since then, the target company has not submitted the IPO application within the time stipulated in the "Supplementary Agreement", nor has it completed the agreed VIE matters within the agreed time. Therefore, Zhuhai Hengqin Lerui Enterprises respectively filed the IPO application with Han Ying and Xiangfu in March 2019. Send two "Letters on Requiring the Performance of the Repurchase Obligation", requesting Xiangfu Company and Han Ying to fulfill the repurchase obligation and repurchase all the shares of the target company held by Zhuhai Hengqin Lerui Enterprise. However, Han Ying and Xiangfu Company failed to repurchase shares as stipulated in the Supplementary Agreement, so Zhuhai Hengqin Lerui Enterprise filed a lawsuit with the court of first instance requesting that Xiangfu Company and Han Ying pay equity repurchase to Zhuhai Hengqin Lerui Enterprise. The purchase price and liquidated damages, and ordered Guo Jia and Han Ying (Guo Jia and Han Ying were originally husband and wife, the two divorced on June 13, 2019) to be liable to Zhuhai Hengqin Lerui Enterprises for Han Ying's repayment obligations Joint Repayment Responsibility. The court of first instance supported the plaintiff's petition, but Guo Jia appealed against it.

Referee point of view：The court of first instance held after hearing that Article 3 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Marital Debt Disputes ("Judicial Interpretation II of the Marriage Law") stipulates that during the existence of the marriage relationship, one of the spouses exceeds the daily routine of the family in his own name during the marriage relationship. For debts incurred for living needs, if the creditor claims that it is a joint debt of husband and wife, the people's court will not support it, unless the creditor can prove that the debt is used for the joint living, joint production and operation of the husband and wife, or based on the joint will of the husband and wife. In this case, the court of first instance determined that Guo Jia had actually participated in the operation and management of the target company based on the following aspects, and should have known and agreed that the target company would raise funds from Zhuhai Hengqin Lerui Enterprises and that Han Ying should undertake the repurchase obligation when the repurchase conditions were triggered agreement. The debt involved in this case was used for the joint production and operation of Han Ying and Guo Jia during the relationship between husband and wife, and should be recognized as a joint debt of husband and wife, and Guo Jia should bear the joint repayment responsibility for the debt: (1) the equity structure of the target company; (2) Guo Jia has the right to decide on the company's personnel appointment; (3) Guo Jia leads the formulation and communication of the repurchase plan with investors; The target company conducts business negotiations with the outside world, provides financing for the target company, and holds shares in multiple entities that once held shares in the target company and serves as the legal representative and executive director. The court of second instance held that the debt in this case occurred during the marriage between Han Ying and Guo Jia, and the debt was used for the operation of the target company. In general, the review of joint production and operation of husband and wife includes three elements: the debt is dedicated to production and operation; the husband and wife operate based on the common will, that is, joint decision-making, joint investment, division of labor and cooperation, and joint management of the husband and wife; the operating income is the main income of the family or For couples living together. In addition, in the case of no business income, if there is clear evidence that the debt is dedicated to the joint production and operation of the husband and wife, it can also be determined as a joint debt of the husband and wife. The first-instance judgment found the facts clear and applied the law correctly, so it should be upheld.

17.   As a professional investment institution, if a private equity fund decides to fulfill its right to request repurchase of the invested company based on its own judgment on the operating conditions of the invested company, and it is supported by an effective judgment and has completed the fulfillment, if it otherwise claims that the invested company infringes on its shareholders The right to know and cause them to make wrong business judgments, which violates the integrity of commercial subjects and normal business rules, is not supported

Case：Beijing Juntou Junhua Capital Management Center, Dalian Puzhou Aviation Technology Co., Ltd. and other shareholders' right-to-know dispute [(2022) Liao 02 Min Zhong No. 6326]

Main Facts：In June 2012, Juntou Center and Jiang Enying signed a package of agreements including the "Investment Agreement", agreeing that Juntou Center will invest in Puzhou Airlines. The two parties also agreed in the agreement that if an agreed event occurs, Juntou Center can ask Jiang Enying to accept all or part of the equity held by Puzhou Airlines, plus 15% of the annual investment income. Juntou Center sued the court in April 2018, requesting that Jiang Enying redeem the equity of Puzhou Airlines held by Juntou Center and return the investment principal, and order Jiang Enying to pay the balance of investment income. The case went through the first instance, second instance and retrial, and the final effective judgment supported Juntou Center's repurchase request. After execution by the court, Jiang Enying has fully fulfilled the obligations stated in the judgment, and the case has been executed. Since then, Juntou Center has sued the court again, claiming to fulfill its right to know as a shareholder of Puzhou Airlines. After investigation, when Juntou Center filed this lawsuit, the shareholders of Puzhou Airlines registered by the company registration authority were Jiang Enying, Jiang Guochun, and Juntou Center. The court of first instance rejected the appeal of Juntou Center, and appealed against it.

Referee point of view：The court of second instance held that, first of all, the shareholder's right to know is an important manifestation of the shareholder's common interest rights established by the company law, but the premise of exercising this right is that the subject has the shareholder qualification. To examine whether a subject is qualified as a shareholder, it mainly depends on two aspects: formal requirements (industrial and commercial registration, shareholder register records, etc.) and substantive requirements (capital contribution). The shareholder’s right to know dispute is an internal dispute within the company, especially in the case where the shareholder has withdrawn capital or equity repurchase but has not yet gone through the industrial and commercial change registration procedures, the examination of the shareholder’s qualifications should be judged in accordance with the agreement of the parties. The appellant in this case has made a clear declaration of intention through the equity repurchase lawsuit, and his declaration of intention has also been supported by the effective judgment of the court, and the execution has been completed. The appellant has lost his shareholder qualification. Secondly, the appellant clearly recorded in the complaint for the equity repurchase case: Since the performance of Puzhou Airlines has not reached the standard it promised for many years, and the other two conditions agreed in the agreement have been triggered, Jiang Enying must redeem it according to the agreement. Equity held by Juntou Center. Accordingly, it can be considered that the appellant initiated the equity repurchase lawsuit based on its commercial judgment on the appellee's operating conditions, rather than on the basis that the appellee violated the appellant's shareholder's right to know. Therefore, the appellant believes that the appellee did not disclose the relevant financial reports and other information to it on the grounds that the operating conditions of the appellee, Puzhou Airlines, improved and changed from a large loss to a large profit in 2018 and 2019, which caused it to make wrong investment decisions. The rationale for its benefit is clearly not valid. Accordingly, the court of second instance rejected the appeal of Juntou Center and upheld the original judgment.

18.  As far as the contractual private equity fund is concerned, if it needs to invest in the target company indirectly through a special purpose vehicle (SPV) because of its need to invest in the target IPO, and the VAM obligor stipulated in the relevant fund contract has not explicitly refused to change If the later investment entity (SPV) fulfills the repurchase obligation, the VAM obligor has no right to claim that it does not need to perform the repurchase obligation just because of the change of the investment entity

Case：Contract dispute between Wang Shuangyi and Beijing Yinhe Dingshun Investment Center (Limited Partnership) [(2022) Jing 01 Min Zhong No. 2204]

Main Facts：In June 2015, Yinhe Dingfa Company signed the Yinhe Dingshun No. 1 investment fund contract with Chen Xian and others, agreeing to establish the Yinhe Dingshun No. 1 contractual investment fund. The fund manager is Yinhe Dingfa Company. During the investment period of the fund Within the period, the fund can only invest in the equity of Shuangshunda Company. In the same month, Yinhe Dingfa Company and Wang Shuangyi signed the "Specific Equity Repurchase Agreement" and agreed that if Yinhe Dingshun No. 1 Investment Fund's investment in Shuangshunda Company's equity cannot be withdrawn on time according to the investment period of the fund contract or Shuangshun When Dada Company terminates the process of entering the capital market such as A-share IPO or NEEQ listing, Wang Shuangyi shall perform the repurchase obligation and pay the repurchase price to Yinhe Dingfa Company. The repurchase price consists of three parts: the investment principal, the investment premium and the tax paid by Yinhe Dingfa Company. If the repurchase party fails to perform the repurchase obligation as agreed and fails to pay the repurchase payment in time, it shall pay Yinhe Dingfa Company a liquidated damages of 3/10,000 of the unpaid amount for each overdue day. Subsequently, Yinhe Dingfa Company paid the investment funds from the fund account. Because Yinhe Dingfa Company, on behalf of Yinhe Dingshun No. 1 Investment Fund, holds the corresponding capital contribution of Shuangshunda Company, which is likely to affect Shuangshunda Company’s listing review. After communication between all parties, the fund’s shareholding was changed to a contractual fund through partnership. If the enterprise indirectly holds shares, Yinhe Dingfa Company will transfer the corresponding equity to Yinhe Dingshun Center. As of June 30, 2017, Shuangshunda had not formally submitted a listing application to the China Securities Regulatory Commission. Yinhe Dingshun Center then appealed to the court of first instance, ordering Wang Shuangyi to pay the share repurchase price, investment premium and liquidated damages. The court of first instance supported the appeal of Yinhe Dingshun Center, but Wang Shuangyi appealed against it.

Referee point of view：The court of second instance held that, first of all, the "Specific Equity Repurchase Agreement" signed by Yinhe Dingfa Company and Wang Shuangyi was made by the investor to protect its investment rights and interests with Wang Shuangyi, the actual controller of the invested company Shuangshunda Company. According to the consensus reached, the repurchase agreement does not violate the mandatory provisions of national laws and regulations on effectiveness and shall be deemed valid. Later, in order to meet the listing needs of Shuangshunda Company, all parties unanimously agreed that Yinhe Dingfa Company would transfer the shares of Shuangshunda Company held by it on behalf of the fund to Yinhe Dingshun Center, and that Yinhe Dingshun Center would indirectly represent the fund share holders. Shareholding, on the one hand, the source of investment funds is still "Galaxy Dingshun No. 1 Investment Fund", on the other hand, there is no increase or substantial change in the actual ownership of the target equity involved in the case. Secondly, the evidence shows that after the repurchase conditions were fulfilled, the two parties continued to communicate on the repurchase matters. There is no evidence that Wang Shuangyi had clearly defended himself on the grounds that he did not have the repurchase obligation, and refused to fulfill the repurchase obligation to the Galaxy Dingshun Center. Repurchase obligation. To sum up, the relevant evidence submitted by Yinhe Dingshun Center has formed a complete chain of evidence, proving that Wang Shuangyi has a repurchase obligation to Yinhe Dingshun Center based on his commitment in the "Specific Equity Repurchase Agreement". The court of second instance finally rejected Wang Shuangyi's appeal and upheld the original judgment.

19.  The failure of the target company’s shareholder meeting to make a capital increase resolution, the target company’s failure to carry out the capital increase procedures and handle the corresponding equity change registration will not invalidate the relevant capital increase agreement. It is deemed that the shareholder status of the investor has been recognized. As the investor, the private equity fund has the right to require the original shareholders of the target company to undertake the obligation of equity repurchase when the target company fails to meet the performance commitment

Case：Gansu Daxiang Energy Technology Co., Ltd., etc. and Guopeng Investment Management Co., Ltd. equity transfer dispute [(2022) Jing 03 Min Zhong No. 5462]

Main Facts：In September 2017, Guanhui Century Company (manager of Genesis No. 2 Fund) (Party A, investor) and Shanghai Daxiang Company (Party B, shareholder of the target company), Gansu Daxiang Company (Party C, target company) Sign the "Capital Increase and Share Expansion Agreement", agreeing that Party A will increase the capital of the target company, and agree that if the audited net profit of the target company in 2018 is lower than the agreed performance target, Party B shall complete the equity repurchase within the time limit required by Party A, The repurchase price is the actual investment principal corresponding to the proportion of equity that Party A requires to repurchase and the investment income calculated at an annualized rate of 10%. Party C undertakes the joint guarantee responsibility for Party B's fulfillment of the repurchase obligation. In September 2017, Chuangshi No. 2 Fund paid investment to Gansu Elephant Company. Since then, Gansu Elephant Company has failed to meet the 2018 promised profit agreed in the "Capital Increase and Share Expansion Agreement", so Guopeng Investment Company filed a lawsuit with the court of first instance, requesting Shanghai Daxiang Company to pay Chuangshi No. 2 fund managed by Guopeng Investment Company. Gansu Elephant Company shall be jointly and severally liable for the payment obligations of Shanghai Elephant Company for equity repurchase funds, investment income and liquidated damages. The court of first instance supported part of the petition of Guopeng Investment Company (rejected the petition of Gansu Daxiang Company to assume joint and several liability for the payment obligation of Shanghai Daxiang Company), and Shanghai Daxiang Company and Gansu Daxiang Company appealed against it.

Referee pont of view：The court of second instance held that the focus of dispute in this case is: 1. Whether the "Capital Increase and Share Expansion Agreement" is valid; 2. Whether Shanghai Daxiang Company should perform the repurchase obligation. With regard to the first issue of dispute, although Shanghai Daxiang Company and Gansu Daxiang Company claimed that Gansu Daxiang Company did not make a resolution of the shareholders' meeting for capital increase, nor did it go through the capital increase procedure and shareholder change registration, this does not invalidate the agreement itself. Except for the invalidity of the agreement on the joint liability of Gansu Elephant Company, the other contents are the true intentions of the parties, do not violate the validity provisions of laws and administrative regulations, and are legal and valid. With regard to the second focus of dispute, Shanghai Elephant Company and Gansu Elephant Company appealed and claimed that the investors did not hold equity in Gansu Elephant Company, were not shareholders of Gansu Elephant Company, and did not meet the preconditions for repurchase, but according to the agreement , it is the obligation of Gansu Elephant Company to register the investor as a shareholder of the company and handle the industrial and commercial registration, and regardless of whether the shareholder change registration is performed, Gansu Elephant Company and Shanghai Elephant Company are deemed to have approved the date on which the investor’s capital contribution arrives. Therefore, the equity repurchase is essentially the commitment and obligation of Shanghai Daxiang Company to return the investment funds to the investor and compensate the investment income when Gansu Daxiang Company fails to reach the agreed performance target. Shanghai Daxiang Company shall fulfill. In summary, the court of second instance finally rejected the appeals of Shanghai Elephant Company and Gansu Elephant Company and upheld the original judgment.

20.  If the invested company is a joint stock limited company, its shareholders do not enjoy the right of first refusal in principle. If the investment agreement stipulates that the shareholders have the right of first refusal, the transferring shareholders can publish the "Notice of External Transfer of Shares" in the newspaper and stipulate the time for exercising the right of first refusal. The shareholders who plan to exercise the rights should actively contact the transfer shareholders to understand the transfer conditions, otherwise they will be deemed as not exercising the rights

Case:Dispute over equity transfer between Beijing Zhenru Investment Management Co., Ltd. and Jiaxing Hongchi Investment Management Partnership (Limited Partnership) [(2021) Jing 03 Min Zhong No. 21098]

Main Facts:Tianxing Vision Company was established in January 2002 as a limited liability company. In April 2016, Zhenru Investment Company (Party A) and Jiaxing Hongchi Enterprise (Party B) signed the "Equity Acquisition Agreement", agreeing that B will increase the capital of Tianxing Vision Company. The agreement also stipulates that under the condition that the following three conditions are met at the same time, Zhenru Investment Company shall acquire the entire equity of Tianxing Company held by Jiaxing Hongchi Enterprise: 1. As of January 30, 2019, Tianxing Company has not yet Listed or listed on a suitable capital market, or failed to be acquired by a third party under the conditions that satisfy all shareholders of Tianxing Company including Party B; 2. Other shareholders of Tianxing Company waive the right of first refusal; 3. Jiaxing Hong Chi Enterprises made an acquisition request to Zhenru Investment Company. In May 2016, Jiaxing Hongchi Enterprise paid capital increase to Tianxing Vision Company. In April 2017, Tianxing Vision Company was changed from a limited liability company to a joint stock limited company. In October 2019, Jiaxing Hongchi Enterprise sent an "Inquiry Letter" to Tianxing Vision Company, asking whether Tianxing Company has a recent capital market listing plan, an overall transfer plan, and if Jiaxing Enterprise plans to sell Tianxing Company's equity, Tianxing Company whether the other shareholders of the company have priority to purchase and so on. Tianxing Company replied that it has no listing or overall transfer plan in the near future, and upon inquiry, no shareholder has a priority purchase plan. In November 2019, Jiaxing Hongchi Enterprise once again issued the "Equity Repurchase Notification Letter" to Zhenru Investment Company, requiring Zhenru Investment Company to perform the repurchase obligation and pay the purchase price in accordance with the agreement. In April 2021, Jiaxing Hongchi Enterprise once again issued a "Communication Letter" to Tianxing Vision Company and stated that according to the relevant agreement, Zhenru Investment Company should acquire the shares of Tianxing Company held by Jiaxing Hongchi Enterprise. Jiaxing Hongchi Enterprise is now consulting other shareholders of Tianxing Company on whether they are willing to purchase the shares held by Jiaxing Hongchi. In the same month, the seventh edition of the 7416th issue of "China Business Daily" published Jiaxing Hongchi Enterprise's "Notice on External Transfer of Shares", uploading that Jiaxing Hongchi Enterprise intends to transfer its shares of Tianxing Company to Zhenru Investment Company, and Indicate the transfer price and payment period, and other shareholders of Tianxing Company should reply within 5 days after appearing in the newspaper, otherwise it will be deemed to have agreed to the transfer, and the right to preemptively purchase the shares has been waived. Since then, other shareholders of Tianxing Company have not claimed the right of first refusal. Jiaxing Hongchi Enterprise failed to ask Zhenru Investment Company to acquire the equity of Tianxing Company held by it, so it filed a lawsuit with the court of first instance, requesting Zhenru Investment Company to pay for the equity purchase.

Referee pont of view:The court of first instance held that the "Equity Purchase Agreement" was legal and valid. Regarding the right of first refusal of other shareholders of Tianxing Company, first of all, when Jiaxing Hongchi Enterprise requested Zhenru Investment Company to acquire the shares of Tianxing Company, Tianxing Company had been changed into a joint-stock company. It does not enjoy the right of first refusal, and there is no problem of the right of first refusal. Secondly, even if the other shareholders of Tianxing Company should waive the right of first refusal according to the second condition stipulated in the acquisition agreement, Jiaxing Hongchi Enterprises has reason to believe that its shareholders have given up right of first refusal. Thirdly, now that Tianxing Company is a joint-stock company, it is difficult to fully display the status of its shareholders through the enterprise credit information publicity system. After Jiaxing Hongchi Company sent a "Communication Letter" to Tianxing Company asking for the contact information of its shareholders but failed, it published the "Notice on External Transfer of Shares" announcement in a publicly issued newspaper to ask whether the shareholders of Tianxing Company had priority in purchasing the shares. The method is reasonable. During the announcement period, no shareholder advocated preemptive purchase. Finally, although Jin, a shareholder of Tianxing Company, issued the "Response to the Inquiry Letter" during the litigation process of this case, Zhenru Investment Company did not submit evidence to prove that Jin actively contacted Jiaxing Hongchi Enterprise to understand the transfer conditions and claimed priority purchase-related behavior. To sum up, the evidence submitted by Jiaxing Hongchi Enterprise has reached the standard of highly probable proof, which can prove that the second item of the acquisition condition, that is, "other shareholders of Tianxing Company waive the right of first refusal" has been established. However, the first and third acquisition conditions have already been met. Therefore, the court of first instance supported the appeal of Jiaxing Hongchi Enterprise. The court of second instance finally rejected the appeal of Zhenru Company and upheld the original judgment.

21.  If a private equity fund makes a resolution to return the paid-in capital contribution of a partner, if the refund is overdue, if the fund and the partner have not reached a loan agreement, when calculating the overdue refund interest, you can refer to the "Supreme People's Court on the trial of disputes over sales contracts." According to the "Interpretation of Legal Issues Applicable to the Case", the overdue refund interest is calculated according to the standard of the seller claiming compensation for the overdue payment loss from the buyer (that is, based on the benchmark interest rate of the same RMB loan of the People's Bank of China in the same period, with reference to the overdue penalty interest rate standard calculation)

Case：Zhongrong Hengxin Investment Co., Ltd. Partnership Agreement Dispute Civil Judgment of the Second Instance [(2020) Jin 01 Min Zhong No. 5012]

Main Facts：In June 2012, Zhongrong Hengxin Investment Co., Ltd. joined Tianjin Huoshi Information Service Industry Venture Capital Partnership (Limited Partnership), and all partners signed the "Partnership Agreement" for this purpose. Afterwards, all partners passed a resolution in November 2019. One of the main contents of the resolution was: all partners unanimously agreed to return the paid-in contribution of RMB 60 million in the third phase, of which the third phase of Zhongrong Hengxin Investment Co., Ltd. should be returned The paid-in amount is 17.2 million yuan. After that, Tianjin Huoshi Information Service Industry Venture Capital Partnership (Limited Partnership) returned 8.6 million yuan, 5 million yuan and 3.6 million yuan to Zhongrong Hengxin Investment Co., Ltd. on January 17, January 22 and July 2, 2020, respectively. Yuan. Zhongrong Hengxin Investment Co., Ltd. filed a lawsuit with the court of first instance, requesting that Tianjin Huoshi Information Service Industry Venture Capital Partnership (Limited Partnership) should pay RMB 943,400 in interest on the overdue return of investment funds, and bear the legal fees, litigation fees, and preservation fees of the case. The court of first instance supported Zhongrong Hengxin Investment Co., Ltd.’s request to pay interest on the overdue return of investment funds, but the overdue payment was calculated based on the standard of four times the quoted market interest rate for one-year loans in January 2020 announced by the National Interbank Funding Center Interest. Tianjin Huoshi Information Service Industry Venture Capital Partnership (Limited Partnership) refused to accept the appeal.

Referee pont of view:After the trial, the court of first instance held that the "2019 Resolution" came into effect after being signed and sealed by all partners on January 7, 2020, and Tianjin Huoshi Information Service Venture Capital Partnership (Limited Partnership) should enter into force after the "2019 Resolution" came into effect. Immediately refund Zhongrong Hengxin Investment Co., Ltd. the paid-in amount of the third installment of 17.2 million yuan according to the content of the resolution. Tianjin Huoshi Information Service Industry Venture Capital Partnership (Limited Partnership) failed to return the payment within the due date, which should be a breach of contract. However, Zhongrong Hengxin Investment Co., Ltd. advocated overdue payment interest at an annual interest rate of 24% starting from December 1, 2019. According to reports, the court of first instance, referring to the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases concerning private lending interest rates, held that it should refer to the one-year loan market quotation rate announced by the National Interbank Funding Center in January 2020 Four times the overdue payment interest. The court of second instance held that it was inappropriate for the court of first instance to use the upper limit of judicial protection of private lending interest rates stipulated in the "Decision of the Supreme People's Court on Amending the Provisions on Several Issues concerning the Application of Law in the Trial of Private Lending Cases" as the interest rate for calculating overdue payment interest . First of all, the aforementioned judicial interpretation regulates the legal relationship of lending. In this case, according to the agreement of the parties, the two parties did not reach an agreement on the use of lending for granting and accepting funds. The appellant's failure to perform the obligation of refund in a timely and honest manner is essentially a violation of the aforementioned agreement. At this time, the appellant should bear the statutory liability for damages for breach of contract, rather than the contractual obligation to return interest after reaching a loan agreement on the funds. Secondly, the liability of the breaching party for damages shall not exceed the possible losses caused by the breach of the contract that the breaching party foresees or should have foreseen when entering into the contract. The two parties have not reached a loan agreement on the refundable amount, nor have they agreed on the interest, interest rate, or penalty for late payment during the use of funds. Using 4 times the LPR as the overdue payment interest rate violates the foreseeability principle of damages in the contract law. Thirdly, the sales contract is the most important well-known contract. If other types of contracts are not clearly regulated, the relevant provisions of the sales contract can be referred to instead of the provisions of the loan contract. According to the "Interpretation of the Supreme People's Court on the Applicable Law in the Trial of Sales Contract Dispute Cases", the sales contract does not stipulate the liquidated damages for overdue payment or the calculation method of the liquidated damages. The people's court may calculate based on the People's Bank of China's benchmark interest rate for similar RMB loans in the same period and refer to the overdue penalty interest rate standard. According to the aforementioned provisions, the interest rate of the appellant's overdue payment can be increased by a certain amount based on the quoted market interest rate for one-year loans in January 2020 announced by the National Interbank Funding Center. Since the appellee was not at fault for failing to pay the payment due on January 8, 2020, this court decided that the overdue payment rate should be 50% higher than the LPR benchmark for the same period. Finally, the first instance of this case was filed on April 22, 2020, and the interest rate regulation of 4 times LPR should not be applied. To sum up, the court of first instance made an error in applying the law in determining the interest rate standard, and the court of second instance corrected it.

22. If the "Transfer Agreement" stipulates that the share transfer completion date shall be subject to the fact that the information of the transferee is recorded in the partner directory and the industrial and commercial change registration is completed, even if the transferee has paid all the transfer price in accordance with the contract, if the transferee has not After the change registration is completed, the transfer of fund property shares is still deemed to be incomplete, and the transferee is not the actual holder of the fund property shares as agreed in the agreement, and the share transfer payment paid by it is regarded as its creditor's right to the transferor

Case：Jiaxing Runshi Renfang Equity Investment Partnership (Limited Partnership) and Fu Jun and others who are not involved in the case enforce objections [(2021) Jingminzhong No. 634]

Main Facts：On November 7, 2018, Macrolink Holding Company and Jiaxing Runshi signed the "Fund Property Share Transfer Agreement" to transfer the share corresponding to the paid-in 107 million yuan of Hangzhou Hanyun Enterprise held by Macrolink Holding Company To Jiaxing Runshi. The content of the agreement includes: "After this agreement takes effect, both parties shall facilitate Party B to complete the signing of the partnership contract of the partnership enterprise, require Party B's information, the amount of capital contribution to be transferred, etc. to be recorded in the partner directory of the partnership enterprise, and complete the relevant business registration procedures The date of completion of the above-mentioned work in this paragraph shall be deemed as the date of completion of the transfer of fund property shares under this agreement.” Afterwards, Jiaxing Runshi paid the full amount according to the agreement, but the two parties did not carry out the industrial and commercial change registration according to the agreement. Later, CITIC Corporation applied to the court to enforce the property under the name of Macrolink Holding Company due to a dispute. On April 27, 2020, the court froze 10.39% of the property share of Hangzhou Hanyun Enterprise held by Macrolink Holding Company according to law. Jiaxing Runshi raised an objection to the execution on the grounds that Macrolink Holdings had transferred the above property shares to Jiaxing Runshi.

Reference point of view:The court held that, according to the agreement, when the information of Jiaxing Runshi was recorded in the partner directory and the corresponding industrial and commercial change registration was completed, the transfer of the fund property shares involved in the case was finally completed. In this case, Jiaxing Runshi has paid all the money, but has not yet completed the industrial and commercial change registration, and the partner information shown in the industrial and commercial registration information of Hangzhou Hanyun Enterprise is still Macrolink Holdings. Therefore, according to the above-mentioned agreement, the transfer of the property shares of the fund involved in the case has not been completed, and Jiaxing Runshi has not become a partner of Hangzhou Hanyun Enterprise. In this case, Jiaxing Runshi's rights based on its performance of the "Fund Property Share Transfer Agreement" are essentially creditor's rights to Macrolink Holdings. The principle of equal protection of creditor's rights is the principle. Therefore, Jiaxing Runshi's creditor's rights to Macrolink Holding Company do not have priority over CITIC's creditor's rights, and enforcement of the property shares of Hangzhou Hanyun Enterprise Fund cannot be ruled out.

23.  The relationship between private equity fund managers and investors is entrusted financial management contracts. When the manager properly fulfills the investor suitability management obligations, and performs the duties of the trustee in accordance with the principles of good faith, diligence and diligence, and manages and utilizes the fund property Under the premise, it is only obliged to liquidate the fund property and distribute it to investors according to the contract, and does not have the obligation to pay the investment principal and income to investors with its own property

Case：Ouyang Jie, Shanghai Changdian Asset Management Co., Ltd. and other financial entrusted wealth management contract disputes [(2022) Lu Min Zhong No. 579]

Main Facts：On December 8, 2016, Ouyang Jie, as an investor, signed the "Fund Contract" with Changdian Company, the fund manager, and Hengfeng Bank, the custodian, after conducting risk identification and tolerance tests and signing for confirmation. According to the contract, the duration of the fund involved in the case is 2 years, and it is mainly used to pay the limited partnership property share of the No. 7 partnership enterprise. Afterwards, Ouyang Jie paid the subscription money for the fund involved in the case. On December 26, 2018, Changdian Company issued the "Announcement on the Extension of Changdian Hengrun No. Investment Partnership (Limited Partnership) Partnership Agreement. Based on the relevant stipulations of the agreement, the fund involved in the case is a limited partner of the No. 7 partnership, Huiteng is the general partner and executive partner, and the expiration date of the No. 7 partnership is December 28, 2018. Since then, the fund involved in the case has actually paid part of the capital contribution to the No. 7 partnership. Recently, Huiteng Company issued the "Announcement on the Extension of Partnership Enterprise" to Changdian Company, requesting that the term of the No. 7 partnership enterprise be extended by one year to December 28, 2019. After investigation, Changdian Company issued the "Notification Letter on the Due Liquidation of the Limited Partnership Equity of No. On the expiry date (that is, the industrial and commercial registration expiration date of the No. 7 partnership enterprise on November 18, 2019) to withdraw from the No. 7 partnership enterprise, please Huiteng Company to liquidate in accordance with the partnership agreement. On September 18, 2020, Changdian Company filed an application to the court for the compulsory liquidation of the No. 7 partnership, and the court of first instance ordered the dissolution of the No. 7 partnership (at the end of the trial of this case, the judgment had not yet taken effect). Ouyang Jie filed a lawsuit with the court of first instance, requesting to order Changdian Company to pay the investment principal and interest of the funds involved in the case. The court of first instance rejected the petition, and Ouyang Jie appealed against it.

Reference point of view：The court of first instance held that the fund contract involved in the case was true and valid, and the relationship between Ouyang Jie and Changdian Company was an entrusted financial management contract. Changdian Company manages and disposes of its property according to Ouyang Jie’s entrustment. After the agreed investment period expires, Changdian Company is only obliged to liquidate the fund property according to the contract and distribute it to Ouyang Jie. It has the obligation to pay Ouyang Jie the investment principal and income with its own property. According to the performance of the funds involved in the case, when Changdian Company has completed the agreed investment with the raised funds but the investment funds have not been returned to the fund, Ouyang Jie asked Changdian Company to undertake the payment of the investment principal and interest with its own property , is inconsistent with the facts of the case and the contract, and should not be supported. As far as the actual situation of the funds involved in the case is concerned, Changdian Company has sent two letters requesting Huiteng Company to liquidate the limited partnership rights of the No. 7 partnership when due. Rights and Interests filed a civil lawsuit against Huiteng Company to claim rights, but the lawsuit has not yet formed an effective judgment, and the relevant rights have not been actually determined. The fact that Changdian Company has claimed rights against relevant parties on behalf of the funds involved in the case cannot be determined to have failed to perform due diligence obligations situation. At the same time, Ouyang Jie's actual loss caused by the fund investment involved in the case cannot be determined when the fund property has not been paid off. In this case, Ouyang Jie did not have the prerequisites to require Changdian Company to pay the investment principal and interest with its own property, so the court of first instance did not support Ouyang Jie's appeal. The court of second instance finally rejected Ouyang Jie's appeal and upheld the judgment of first instance.

24.  After the fund is redeemed, the rights under the fund contract will not be extinguished by withdrawing from the fund, and the fund manager should pay in full in a timely manner, and cannot claim that the fund property will be paid after the fund property is liquidated. At the same time, fund managers should pay attention to the role of the general meeting of fund share holders. Regarding major matters such as changes in managers, the formal validity of the signatures of all investors does not have a legal basis. The obligations and responsibilities of the fund custodian should be interpreted in a narrow and narrow way. Unless there is clear evidence to prove that it violates the contract or legal provisions, it generally does not bear joint and several liability with the manager.

Case：Beijing Hengyu Tianze Fund Sales Co., Ltd. and Guosen Securities Co., Ltd. entrusted wealth management contract disputes [(2022) Jing 74 Min Zhong No. 722]

Main Facts：In 2016, Han Mei signed the fund contract involved in the case with the manager Hengyu Tianze Company and the custodian Guosen Securities Company. The Prospectus of Hengyu Tianze Huangshan No. 10 Private Equity Investment Fund explains the manager, custodian and fund utilization, income distribution, risk warning, etc. On July 2, 2018, Hengyu Tianze Company issued an announcement on the change of manager of Huangshan No. 10 Fund, and the fund manager was changed from Hengyu Tianze Company to Tianhe Yingtai Company. On July 23, 2018, the chairman and president of Hengyu Tianze Company issued a letter to investors, the main content of which is the current problems encountered in the return of investment targets, asset handling ideas and product operation plans, and overdue loans and product disposal. On July 9, 2018, Han Mei applied to redeem the subscription principal of 1,000,000 yuan. On October 19, 2018, Han Mei received 74,101.52 yuan in return from the fund. Later, Han Mei filed a lawsuit with the court of first instance requesting Hengyu Tianze Company to pay the investment principal of 925,898.48 yuan in addition to the fund return. And require Guosen Securities Co., Ltd. to assume joint and several liability for the above payment obligations. The court of first instance ordered Hengyu Tianze Company to pay the investment principal to Han Mei, but Guosen Securities was not required to bear joint and several liabilities. Both Han Mei and Hengyu Tianze appealed against the verdict.

Reference point of view：The court of second instance believed that the focus of the dispute in this case was whether Hengyu Tianze Company should be responsible for paying the fund redemption money to Han Mei, and whether Guosen Securities Company should be jointly and severally liable for compensation. First of all, although Han Mei is no longer a fund share holder of Huangshan No. 10 Fund and no longer enjoys the income right of the fund property, Han Mei’s relevant contractual rights before and after withdrawing from Huangshan No. 10 Fund are not due to her withdrawal from the fund. And destroy. Secondly, according to Article 47 of the "Fund Law", the change of the fund manager shall hold a general meeting of fund share holders, which shall be decided by the general meeting of fund share holders. In this case, Hengyu Tianze Company did not change the fund manager without the above-mentioned procedures, so it is still an eligible subject in this case, and should bear the responsibility of continuing to pay the fund redemption money to Han Mei. Regarding Han Mei’s request for Guosen Securities Company to assume joint and several liability, the subscription risk disclosure statement stated that the fund custodian is not responsible for the investment behavior of the fund or its investment returns, and Han Mei also signed the risk disclosure statement for confirmation. This clause is the true intention of both parties. Han Mei's opinion that it is a standard clause and that the exemption is invalid lacks legal basis. In addition, the evidence is not enough to prove that Guosen Securities Company violated the provisions of laws and regulations or the agreement of the fund contract when implementing the investment instructions of the fund manager, and it is not enough to prove that Guosen Securities Company has committed fraud and other fundamental breaches of contract. Accordingly, the court of second instance finally upheld the original judgment.

25.  When there is a reason for fund termination as stipulated in the Fund Contract (such as the fund manager being deregistered by the Association), if the investor can provide evidence to prove that the Fund Contract has been signed and entered into force, and that he has paid the investment, but the fund manager has not If evidence is provided to prove that relevant due diligence obligations have been fulfilled, it shall be deemed that the investor’s loss has occurred, and the fund manager shall return the investment and compensate for the interest loss

Case：Cai Xuewen, Jinyun (Shenzhen) Equity Investment Co., Ltd. and other financial entrusted wealth management contract disputes [(2021) Lu 71 Min Chu No. 123]

Main Facts：In May 2017, with Cai Xuewen as the investor, Jinyun Company as the manager, and Hengfeng Bank as the custodian, the three parties signed the Fund Contract. According to the contract, if the investor's legitimate rights and interests are damaged due to the fund manager's violation of laws and regulations or the contract, the investor has the right to obtain compensation. Cai Xuewen paid the investment funds to the custody account of the fund involved in the case on the same day. On May 6, 2020, Jinyun Company was deregistered as a private equity fund manager by the Association. So far, the fund involved in the case has not paid the income distribution to Cai Xuewen. Cai Xuewen then sued the court for an order to terminate the "fund contract" and ordered Jinyun Company to return investment funds and capital occupation fees on the grounds that Jinyun Company was operating abnormally and did not disclose information on time.

Reference point of view：After the trial, the court held that, regarding the request for contract termination, Cai Xuewen claimed that the termination of the contract did not meet the termination conditions stipulated in the "Fund Contract" (that is, it was agreed by all investors through consultation), and he did not provide evidence to prove that there was a statutory termination of the fund contract in this case. Therefore, Cai Xuewen The request for rescission of the contract lacks contractual basis and legal basis and is therefore not supported. Regarding the appeal for the return of investment funds and capital occupation fees, Cai Xuewen has provided evidence to prove that he signed the "Fund Contract" involved in the case and paid the investment funds. According to the contract, if the manager is legally disqualified from the private equity investment fund management business, the fund will be terminated, and the manager should immediately organize the establishment of a liquidation team. Now Jinyun Company’s private equity fund manager qualification has been cancelled, so the fund has been terminated, and Cai Xuewen has the right to claim that Jinyun Company should pay him the investment principal and corresponding income. During the litigation process, Jinyun Company did not appear in court to respond to the lawsuit or submit evidence to prove that it had fulfilled its statutory and agreed due diligence obligations. In the case of the termination of the fund in this case, it did not provide evidence to prove that it had passed the lawsuit against the financier and other debtors on behalf of the fund involved. or arbitration procedures, and has not proved that it has actually performed its duties and obligations such as liquidating, disposing, realizing, and distributing properties under the fund. It should be considered that Cai Xuewen’s losses have already occurred, and Jinyun Company should bear the disadvantages that cannot be produced due to the proof. As a result, the corresponding investment principal and interest losses should be paid to Cai Xuewen (the interest will be calculated from the date when Jinyun Company is deregistered as an administrator).

26.  If an investor holds shares of a company to be listed anonymously through an asset management institution, the relevant entrusted holding agreement (including but not limited to the "Entrusted Investment Management Agreement") violates the mandatory provisions of the "Securities Law" (the shareholding structure of the company to be listed must be clear) and deemed invalid, asset management institutions should distribute the income mainly to the party that bears the investment risk (that is, the investor) based on the principle that income and risk are consistent.

Case：Beijing Yifuhai Asset Management Co., Ltd. and other contract disputes [(2021) Jing Min Zhong No. 931]

Main Facts：In July 2011, Jia Hong and Tianjin Yifuhai Partnership ("Tianjin Yifuhai") signed the "Entrusted Investment Management Agreement" and agreed: Jia Hong provided 5 million yuan of funds and entrusted Tianjin Yifuhai to invest in the company to be listed in its name—— The equity of Jiejia Weichuang Company; if Jiejia Weichuang Company has a share reform and is successfully listed, Tianjin Yifuhai informs Jia Hong of the number of shares and share ratio in Jiejia Weichuang Company when the entrusted investment funds are publicly issued and listed ( "Shares held by proxy"); after the lock-up period for the shares of Jiejia Weichuang held by Tianjin Yifuhai (including the shares held by proxy) expired, Jia Hong notified Tianjin Yifuhai to sell the shares at the current market price (or the determined discounted shares) within a certain period of time. holding price) to reduce the entrusted shares; Tianjin Yifuhai paid the funds to Jia Hong within 3 working days after the funds for reducing the entrusted shares arrived. After the "Entrusted Investment Management Agreement" was signed, Jia Hong (including its authorized entities) remitted 5 million yuan to Tianjin Yifuhai. After Jiejia Weichuang Co., Ltd. successfully reformed and went public, Jia Hong notified Tianjin Yifuhai to reduce the entrusted shares after the expiration of the entrusted shareholding lock-up period, but Tianjin Yifuhai did not report to Jia as agreed Hong paid the proceeds from the share reduction. Jia Hong sued and demanded that Tianjin Yifuhai pay the after-tax price and interest for reducing the shares held by Jiejia Weichuang Company, as well as Jia Hong's rights protection costs.

Reference point of view：The court of first instance held that the implementation of the "Entrusted Investment Management Agreement" signed by Jia Hong and Tianjin Yifuhai was that the actual investor Jia Hong contributed capital and enjoyed investment rights, and the nominal investor Tianjin Yifuhai was the nominal shareholder. The act of disposal, that is, the act of entrusted equity holding. The "Securities Law" requires clear equity of companies to be listed, and restricts listed companies from holding shares anonymously, which is the basic requirement for the supervision of listed companies. Regulatory measures such as review and recusal of senior executives will fail, which will inevitably damage the legitimate rights and interests of non-specific investors, thereby damaging the basic transaction order and basic transaction security of the capital market, and causing damage to social and public interests. In this case, Tianjin Yifuhai participated in the listing of Jiejia Weichuang Company in its own name, and was listed as one of the top ten shareholders of Jiejia Weichuang Company, but concealed the identity of the actual investor Jia Hong. Therefore, Tianjin Yifuhai, Jia Hong The behavior of the two parties constituted the issuer’s anonymous holding of shares, and the “Entrusted Investment Management Agreement” violated the company’s listing series of regulatory regulations, violated the public order of the securities market, and damaged the public interest of the securities market. Therefore, the court of first instance held that the "Entrusted Investment Management Agreement" was invalid. After the contract is invalidated, the property acquired due to the contract shall be returned; if it cannot be returned or it is unnecessary to return, it shall be compensated at a discounted price. The party at fault shall be responsible for compensating the losses suffered by the other party. If both parties are at fault, they shall bear corresponding responsibilities. As for the share investment behavior in this case, the purpose is to obtain share income, and it is accompanied by investment risks. When applying the principle of fairness to determine the responsibilities of both parties to the contract, the following two factors should be considered. First, the investment income The degree of contribution and consideration of who actually bears the opportunity cost and capital cost during the investment period. According to the principle of "whoever invests, who benefits", the income is mainly distributed to the party that bears the investment cost. The second is the transaction arrangement and consideration of investment risks. Who will actually bear the adverse consequences of investment losses, according to the principle of consistent income and risk, the income will be mainly distributed to the party that bears the investment risk. Based on this, the court of first instance comprehensively considered the degree of contribution and investment arrangement of Jia Hong and Tianjin Yifuhai Partnership to the investment income, and determined that Jia Hong should obtain 70% of the investment income and Tianjin Yifuhai Partnership should obtain 70% of the investment income. 30%. Tianjin Yifuhai appealed against the appeal, and the court of second instance finally rejected the appeal and upheld the original judgment.

27. There is no loan relationship between the fund investor and the fund manager, and the distributable income of the fund investor has not been determined before the fund is liquidated (that is, its claim to the manager cannot be determined), so the fund investor has no right to exercise creditor subrogation Quanlai claimed the claims of the fund involved in the case against the third party

Case：Dispute over subrogation between Liu Lu and the creditor of Beijing Lihua Zhenyuan Technology Co., Ltd. [(2022) Jing 03 Min Zhong No. 10389]

Main Facts：In May 2018, Liu Lu signed the "Fund Contract" with Huazhen Company and Bank of Shanghai Co., Ltd. Beijing Branch, agreeing that: Liu Lu invested in the No. 1 income right private equity fund managed by Huazhen Company. All the assets of the fund are used to transfer the 16% limited partnership share income right of the partnership legally held by Lihua Company, and then indirectly hold the 0.5792% equity income right of CRRC. In September 2019, Lihua Company issued to Liu Lu the "Confirmation Letter of Subscription Shares of Private Equity Fund Clients of State-owned Enterprise Mixed Reform No. 1 Income Rights", proving that Liu Lu subscribed for this fund in May 2018, and the investment amount accounted for 2.5% of the total fund raised. %, and indirectly owns 0.0289% of the equity interest in CRRC. In addition, the "Limited Partnership Share Income Rights Transfer and Repurchase Commitment Letter" issued by Lihua Company to Huazhen Company stated: Our company promises to repurchase the limited partnership share income rights held by your company when it expires. After that, Huazhen Company did not propose a repurchase to Lihua Company. Liu Lu then sued the court of first instance on the grounds that Huazhen Company failed to claim due creditor's rights to Lihua Company, demanding that Lihua Company pay Liu Lu the principal of the investment and investment income. The court of first instance ruled to dismiss all of Liu Lu's claims. Liu Lu refused to accept and lodged an appeal.

Reference point of view：The court of second instance held that the focus of the second-instance dispute in this case was whether Liu Lu had the right to exercise the creditor's right of subrogation. In this case, Liu Lu exercised the creditor's right of subrogation to Lihua Company, provided that Liu Lu had a legal and valid due creditor's right to Huazhen Company, and the creditor's right had to be determined. The "Fund Contract" signed by Liu Lu and Huazhen Company reveals the relevant risks of fund investment in many places, and also agrees on different plans for fund income, and there is no commitment or agreement by Huazhen Company to guarantee Liu Lu's principal and income. Liu Lu used this as an excuse to claim that he formed a loan relationship with Huazhen Company, but the basis is insufficient. Secondly, the fund involved in the case has expired, but has not been liquidated. Liu Lu's distributable income as an investor has not been determined, and his creditor's rights to Huazhen Company have not been determined. Therefore, Liu Lu's exercise of the creditor's right of subrogation in this case to request Lihua Company to pay him the investment principal and investment income has no legal basis, and the court of first instance did not support it, which is not inappropriate, and this court upheld it.

28.  The basis for judging whether the "repayment commitment" made by a third party to private equity fund investors is "incorporation of debts" is whether the third party promises to take responsibility for the debts of the private equity fund with all its properties. Assuming responsibility, it should only be regarded as a repayment guarantee for the private equity fund, not as an addition to the debt

Case：Contract dispute between Cao Shengfei and Lei Hong [(2021) Beijing 74 Minzhong No. 932]

Main Facts： Beijing Wisdom Valley Investment Fund (Limited Partnership) (hereinafter referred to as "Wisdom Valley") and Cao Shengfei signed the "Beijing Zhuge Dazhizhi Investment Center (Limited Partnership) Partnership Agreement" in March 2015. Wisdom Valley is the partner executive and Cao Shengfei is the limited Partner, the limited partnership aims to invest in the "Zhuge Auto Repair Network" of the project party Zhuge Tianxia (Beijing) Information Technology Co., Ltd. According to the agreement, the expected total rate of return obtained by the limited partners from the partnership enterprise in each operating year is not less than 20%, and there is no upper limit. If the limited partner proposes to withdraw the equity in writing within 100 days before the three-year termination period, the general partner will unconditionally, within 100 days after the three-year termination date, pay the actual investment amount of the limited partner and the expected dividend amount promised by the partnership. The sum of the amount is repurchased by the limited partners to actually hold the equity of the project company to realize the withdrawal of the limited partners. In addition, the agreement also stipulates liquidated damages and other matters. China Enterprise Wisdom Valley Investment Consulting (Beijing) Co., Ltd. is the general partner of Wisdom Valley, and Lei Hong is its limited partner. In addition, Lei Hong stated in the investment repayment notice made by the investor WeChat group of "Zhuge Auto Repair Network" in 2019, "According to the gentleman's agreement between me and all investors, I will use the proceeds of our other projects to repurchase The rights and interests of the "Zhuge Auto Repair Network" project of all investors will finally realize the protection of investors' principal and interest income. 1. The first batch of partial repurchase amount: 60 million yuan; 2. Source of funds: Leihong's overseas projects obtain income." In November 2019, Cao Shengfei submitted a refund notice to Wisdom Valley, requiring him to pay the income and return the principal before December 5, 2019, but Wisdom Valley did not return it. Cao Shengfei then appealed to the court, requesting Wisdom Valley to return Cao Shengfei's principal and proceeds, and pay liquidated damages. He also asked China Enterprise Wisdom Valley Investment Consulting (Beijing) Co., Ltd. and Lei Hong to assume joint and several liability for the debts of Wisdom Valley.

Reference point of view：The court of second instance held that the relationship between Cao Shengfei and Wisdom Valley was a private lending relationship, and Lei Hong's "repayment promise" did not constitute debt participation. According to the general principles of civil law, the debtor should use all of its property as the liability property to assume the liability for repaying the debt. Since the third party has become a joint debtor, it should assume the responsibility for the debt with all of its property. In this case, Lei Hong promised to pay off the debts of Wisdom Valley with his personal overseas investment income instead of all his property. means to express.