The Application Of The Judgment Rules Of The Valuation Adjustment Mechanism From The Perspective Of Commercial Judges

The valuation adjustment mechanism is commonly known as the "gambling agreement"and is a relatively common investment method in the field of private equity investment.Because it can effectively settle the disputes between the investment and financing parties on the valuation of the target company,it can greatly facilitate investment transactions in a short period of time,solve the problem of the capital bottleneck of the target company,and can effectively protect the investor's Investment interests are extremely favored by investees and investors.However,the valuation adjustment mechanism has been struggling in the process of implementation in China.How to judge its effectiveness has been a problem that has plagued the practical world for many years.During the implementation of the valuation adjustment mechanism,the investor will temporarily become a shareholder of the target company,so there will be a situation where the contract legal relationship and the company's legal relationship coexist between the investor and the target company.When the target company is unable to fulfill its performance commitments,and the investor requires the target company to pay based on the contractual legal relationship under the prior valuation adjustment agreement,the target company will often use the company's legal relationship to defend the two parties.The target company will firmly grasp the identity of the investor as a shareholder of the target company in order to use mandatory provisions such as the company's capital maintenance principle to block its payment obligations caused by valuation adjustments due to the contractual legal relationship with the investor.Contract law and company law have different legal interests that need to be protected as homotopy laws that deal with different legal relationships,and the legal application of the valuation adjustment mechanism arises from this.Regarding the legal application of the valuation adjustment mechanism,since there is no legal provisions to clarify it,the determination of its effectiveness has always been based on the majority opinion formed in practical judgments,that is,the judgment rules recognized by most judges as an important guide.The Supreme People's Court took the lead in establishing the "dichotomy" adjudication rules in the"Hai Fu case" judgment,which is known as the "China's first gambling case." With the continuous deepening of the research on the valuation adjustment mechanism by academics and judicial judges,The understanding of this mechanism is also more comprehensive and objective,and its judicial ruling rules have also undergone a transition from the "dichotomy ruling rule to the "fuhui case" ruling rule to the,distinguishing contract effectiveness and performance" ruling rule.In the end,a variety of refereeing rules coexist.The Supreme People's Court's "rule on the civil and commercial trial work meeting of the national court" proposed the rules of judgment to distinguish the contractual effectiveness of the valuation adjustment mechanism from the performance.Although the contractual effectiveness of the valuation adjustment agreement has been recognized,it has great potential.It may lead to the inability of the investor to actually perform the valid contract and to achieve the purpose of real transactions.Therefore,even the latest rulings proposed by the Supreme People's Court still have their limitations.The rulings of the rulings did not finally solve the practical problems caused by the valuation adjustment mechanism.The development of the valuation adjustment mechanism has had a profound impact on the capital trading market so far,and this trading model has gradually become a common practice in commercial investment and financing relationships.Under the guidance of China's policy of vigorously promoting financial innovation,in order to protect the safety of investment transactions and promote the healthy and stable development of economic markets,judicial referees should treat valuation adjustment mechanisms with complex transaction structures and obvious commercial properties.They should focus on commercial trial thinking and respect Subjective autonomy,prudently determine the effectiveness of the valuation adjustment mechanism and protect its ability to perform in accordance with the law in order to achieve the organic unification of legal,social and political effects.From the perspective of judicial practice,this paper sorts out the existing judicial judgment opinions of the valuation adjustment mechanism horizontally through the collection and arrangement of typical valuation adjustment mechanism cases;it sorts out the existing judgment rules of the valuation adjustment mechanism vertically.The changes experienced in judicial practice,so as to systematically grasp the judicial adjudication rules of the valuation adjustment mechanism.Through the analysis of the legal applicability of the different judgment rules of the valuation adjustment mechanism,the advantages and disadvantages of each judgment rule are analyzed,and then the principles of law application that should be grasped by the judgment adjustment mechanism case are summarized,with a view to the valuation adjustment mechanism The final solution to the applicable problem provides useful ideas.