Research On VAM's Application To Lawand Risk Prevention

With the continuous development and improvement of China's capital market and under the impetus of successful cases in the gambling,such as Inner Mongolia Meng Niu Dairy vs Morgan Stanley,it is a trend that enterprises use "valuation adjustment mechanism" on investment and financing.What's more,the study of "valuation adjustment mechanism" has spread to the various fields and has become an important topic in academic circles.Especially in the case of Sea rich investment after the twists and turns of the referee, the research of legal nature,legal effect,applicable law,risk prevention on gambling agreement and other aspects is toward a climax.At the same time,it also gives more applicable agreement on gambling bring worries in the capital operation.As an exotic and domestic current law did not have the relevant provisions,the problem of gambling on the agreement,the definition,legal attribute and legal application in the academic circles have different opinions,used in practice is a simulation of the ambiguous. Resulting in a dispute arising from the agreement on gambling resort to the court, the judge is on the basis of the "contract law", "company law", "monopoly law" and relevant administrative policies and regulations as reference, even some courts according to the already failure of the Supreme People's Court of several problems about the trial of the case of joint venture contract dispute cases answers,the relevant provisions as a basis for judgment,found agreement on gambling in the name of the joint venture,actually lending.The judge's discretion based on the right of different legal judgment, after all is blank in.So for the gambling agreements are the legal relations and qualitative discussion is particularly important,this paper through the combined with the current mainstream view and conclude that agreement on gambling is a nameless contract,aleatory contract and the conditions attached to the contract carries on the contrast analysis,the author comes to the view that agreement on gambling when as a nameless contract,but neither shoot aleatory contract and non conditional contract,as an adjustment mechanism,in no law expressly defined with respect to the main contract that the investment agreement itself for,to bet against the qualitative agreement is a contract from the more close to the practice.In this paper,we introduce the Haifu investment case,dialysis on gambling agreement faced in the application of the legal dilemma for both investment and financing in signed on the gambling agreement, buried under the dispute settlement of legal obstacles,which has become on the gambling agreement is the biggest risk,so the ultimate goal of this paper after it concluded the agreement on gambling faced all kinds of risks,standing in investment and financing both sides point of view to consider how to guard against the risk,so that it achieves a win-win situation.This dissertation included the following four parts:The first part is to analyze the connotation of the agreement on gambling.When defining valuation adjustment mechanism,we should be based on the gap between information asymmetry and valuation to explain;in the analysis of the motivation of valuation adjustment mechanism,it should be analyzed mainly from four aspects of incentive mechanism, information asymmetry,small shareholder interests and investment and the nature of financing; in on the gambling agreement type, the subject and the conditions is as the basis of dividing;in aspect of the characteristics of an agreement on gambling, it is mainly based on the induction of gambling on the agreement in in our country's situation.In the analysis of an agreement on gambling motivation,the main incentives,asymmetric information,the nature of the interests of small shareholders from investment and financing.Agreement on the type of gambling, subject to the conditions and as the division basis;in terms of the characteristics of an agreement on gambling,the main basis for agreement on gambling in our country to make the practice of induction.The second part is the legal relationship and the qualitative analysis of the agreement on gambling.Firstly,from of gambling on the agreement of the subject,object and reveal the intrinsic relationship between;then based on the academic circles of law nature of the agreement on gambling have great differences, and used the comparative analysis of law focused on the legal nature of the were detailed analysis,are opposing the analysis from the Perspective of gambling on the agreement,neither shoot fortunately,the contract and the conditions attached to the contract.The third part of the agreement on gambling law analysis.Through the introduction of the Haifu investment case,layers of analysis of three levels of courts in the trial ideas and of gambling on the agreement,the attitude,using the results of the Supreme People's court as a reference,the judicial wizard brought by the application of the law in the agreement on gambling.The fourth part is to analyze the risk of gambling agreement and its prevention.The risk of the gambling agreement outside from the two aspects of internal and external,internal, investment and financing both sides as the source of risk;on the outside,including legal and regulatory risks.Based on the analysis of the risk, from the practical point of view,in both investment and financing analysis of how to avoid the risk of gambling and the establishment of a sound risk prevention mechanism.