Analysis Of The Legal Nature Of The Valuation Adjustment Mechanism And Its Effectiveness

The Valuation Adjustment Mechanismis an innovation in the field of financial financing in recent years.The essence of this is the adjustment of the valuation of the target company.With the adjustment system of the company's valuation,the adverse effects of information asymmetry between the investment and financing sides are gradually eliminated.This allows investors,including PE/VC,to be more confident in making foreign investments without worrying about the huge risks posed by wrong valuations.As a financier,it is easier and faster to obtain funds and inject new impetus into the company's development.Therefore,from the surface,the introduction of the gambling agreement is a win-win measure for both investment and financing,but it is also due to its innovation.In our judicial practice,there is a lack of legal regulation of the gambling agreement.Since 2012,the final reslut of the “Haifu Case”,which was hailed as the first case of China's Valuation Adjustment Mechanism,has settled.The gambling agreement has begun to enter the field of vision of the society.At the same time,the results of the first,second and third trials are not the same.This led to a broad discussion of the gambling agreement,which focused on the validity of the gambling agreement and its own legal attributes.As for the effectiveness of the gambling agreement,we can roughly divide the judgments of the courts into: different opinions such as joint venture,borrowing,and autonomy.However,judging from the judgments of the courts at all levels,the Supreme People's Court held the view that the autonomy of the meaning is to protect the principle of autonomy of the contract.In terms of legal attributes,there are three main views,namely,the conditional contract theory,the shooting contract theory and the guarantee contract theory.The above three viewpoints have their own basis,but each has its own loopholes.It is impossible to treat the gambling agreement as one of them.This article tends to explain the gambling agreement as an unnamed contract and explain it according to the contract principle.At the same time,when dealing with the gambling agreement,by studying various theories and the court's effective judgment,it can be found that because the research has not yet been deepened,scholars in various fields often dare not say that the scope of the research is expanded,but is limited to a certain field.Excavation,neglecting the value balance between departmental and departmental laws and the balance between various fields,such as ignoring the value balance between company law and contract law,and identifying the gambling agreement in the legal field and financial field.There are also differences in views.Therefore,for the gambling agreement,the author believes that the method of“one size fits all” and “individually recognized” cannot be adopted simply.The departmental laws should be integrated,and the determination should be made on the premise of considering the value orientation of each field.Based on the existing doctrine,this paper attempts to analyze the advantages and disadvantages of each doctrine in detail,learn from each other's strengths,comprehensively analyze the legal nature of the gambling agreement,and combine the results of judicial practice at the present stage to combine the contract law with the company law.In combination,it is proposed to increase the commercial legal thinking while using the judgment of contract law thinking to ensure that the gambling agreement can better guarantee the commercial activities.At the same time,with reference to foreign mature experience,without resorting to China's existing legal system,appropriate borrowing of foreign practices,through the establishment of format text and other methods,reduce the legal risk of the gambling agreement.