创业投资引导基金参股协议刍议

On the Participation Agreement of the Guiding Fund of Venture Capital

参股协议是创业投资引导基金与具备特定资质的创业投资企业就参股投资事宜签订的旨在确定双方民事权利义务关系的协议。该协议具有公益性与私益性兼具、强制性与任意性并存的特点。参股协议在性质上属于委托合同,应受合同法和创业投资引导基金立法的双重规范,行政合同论与信托合同论都是不正确的。参股协议的法理基础是权利互惠性原则、私法自治原则和比例平等原则。

The participation agreement is a kind of agreement centering on determining the equity investment matter and civil rights and obligations of the parties,which is signed by the venture capital enterprise having specific qualifications and the Guiding Fund of Venture Capital. The protocol has the characteristics of being public and private,mandatory and discretionary. This agreement is a kind of commission contract in nature,shall be governed by Contract Law and the legislation of Guiding Fund of Venture Capital. The administrative contract theory and the trust contract theory are not correct. The legal basis of participation agreement is the right reciprocity principle,the principle of private autonomy and the principle of proportion of equality.