如今,私募股权投资(PE)成为金融界一个新的亮点,也成为融资困难的中国中小企业的一种新的融资渠道。但是,PE对赌条款的合法性一直饱受争议。令人惊讶的是,在中国对赌条款被判无效第一案的二审审理中,法院竟然援用了最高人民法院于1990年发布的《关于审理联营合同纠纷案件若干问题的解答》,以“明为联营,实为借贷”判决对赌条款无效。作为20多年前颁布的司法解释,其适用在今天应当更加谨慎,一方面是经济情况已经显著不同,另一方面是“明为联营,实为借贷”实在是一个不容易界定的概念。立法和审判实践应当充分认识融资行为的实质,并努力克服法律的滞后性,才能更好的维护金融秩序。 Today, private equity (PE) has become a new bright spot in the financial community and a new source of financing for SMEs in financing difficulties. However, the legality of the PE betting clause has been controversial. Surprisingly, in the second trial of the first case in which the claimant clause was invalidated in China, the court even availed himself of the “Reply to Several Issues Concerning the Trial of Cases of Joint-venture Contract Dispute” issued by the Supreme People’s Court in 1990, Ming as a joint venture, in fact, lending "ruling invalid terms of the bet. As the judicial interpretation promulgated more than 20 years ago, its application should be more cautious today. On the one hand, the economic situation has already been markedly different. On the other hand, it is indeed a concept that is not easily delineated. Legislation and trial practice should fully understand the essence of financing behavior, and work hard to overcome the lag of laws in order to better safeguard the financial order.