On The Legal Nature And The Validity Of Valuation Adjustment Mechanism

With the development of the economic and the increase demand for investment of the company,Valuation Adjustment Mechanism are used more and more frequently by the corporation which need investment,As a new type of risk aversion tool.One of the most exotic products,the gambling agreement,also known as the valuation Adjustment mechanism,refers to the private equity investors in the search for the investment object,based on the actual situation of the target company and the uncertainty of the future operation of the target company,in order to avoid their own risk,with the target company or the original shareholders of the target company signed agreement The Agreement shall be in accordance with the actual operating conditions of the target company at the future point of time as investors and financiers to fulfill the corresponding contractual obligations.China's first occurrence of the gambling case is Mengniu and Morgan Stanley Equity investment case,and it is because of the signing of the agreement,making Mengniu dairy industry to become China's milk giants,with the trend of gambling agreement intensified,academia for its nature has produced different views and views,some scholars believe that In essence,the gambling agreement should be a lucky contract,and it is concluded that the realization of the contractual rights and obligations of the investment and financing parties depends on the result of the agreement,so the result is uncertain and conforms to the characteristics of the contract.Some scholars think that the gambling agreement should be the option contractfundamentally,and also have the scholars who hold the agreement on the contract of the gambling,the author holds that the agreement on gambling is neither a contract nor an option contract,nor a contract with the conditions of validity as stipulated in the Contract law of China,but a contract with the obligation conditions in the Anglo-American legal system.The contract law of our country should also introduce the concept of contract with obligation condition to solve the need of judicial practice.In 2012,the Supreme Court of China's decision on the first case of the gambling agreement on the sea-rich investment case formally demonstrated the judiciary's view on the effectiveness of the gambling agreement,that is,the target company for the gambling subject of the gambling agreement should violate the company law 20 th of the relevant shareholders shall not damage the interests of the However,the above-mentioned judgement does not describe how the gambling agreement damages the interests of the company and the mandatory provisions of the 20 th article of the company law.To the target company for the gambling subject of the effect of the gambling agreement,the author believes that it does not actually harm the interests of the company,and the existing views on the invalid gambling agreement is analyzed,and finally concluded that the target company as the main body to sign the agreement should be valid conclusions.This article is mainly divided into four parts:The first chapter expounds the basic concepts,types and characteristics of gambling agreement.The second chapter mainly discusses the legal relationship and the legal nature of the gambling agreement.The third chapter mainly explores the effectiveness of the gambling agreement with the target company as the main body.The fourth chapter mainly takes the case outside the region as the reference,gives the judicial practice of our country with the suggestion.