Research On The Adjudication Of Disputes Over Valuation Adjustment Mechanism

Valuation Adjustment Mechanism has become an increasingly important role in Chinese commercial field,and "betting on every investment" has also become a new trend in the investment field.As an effective measure to avoid risks,Valuation Adjustment Mechanism plays an indispensable role in protecting the investment of investors and the commercial secrets of financiers.So it can be predicted that there will be a proper legal status for Valuation Adjustment Mechanism which was given by Chinese civil and commercial legal system.However,the issue about the validity of Valuation Adjustment Mechanism remains some doubts.Therefore,It is beneficial that deciding doubtless idea about the validity of Valuation Adjustment Mechanism through summarizing the practical experience.The validity of the Valuation Adjustment Mechanism lies in the balance between the possibility of actual performance and legal performance.Based on that,two typical Valuation Adjustment Mechanism clauses are judged.Taking the Valuation Adjustment Mechanism involved in the case as an example,the compensation mechanism clause and the equity repurchase clause are influencing and restricting for each other.The status of shareholder determines the attribute of the compensation mechanism,and the compensation mechanism affects the consideration paid by the investor for the equity concession.So,under the capital maintenance principle,The Company Law are used to protect the legitimate rights of shareholders and the trust of creditors,to restrict the way which shareholders benefits from the company.Without legal procedures,shareholders have to get the assets legally and not allowed to withdraw the capital contributions at will.In this case,the biggest conflict is the investor who has the dual identities--shareholder and creditor.Due to the diversity of identities,the contra-plating agreement directly leads to the conflict between the contract law and the organization law.And because of the restriction of the company law on the company's property,the investor cannot claim the rights for his own rights of the creditor.While the compensation mechanism,as the real expression of the contraction,loses its binding force.In order to solve this conflict,this paper starts from the following parts: the definition about the equity ownership of the investor and the effective transfer of the equity ownership in the Valuation Adjustment Mechanism,through which the cash compensation mechanism is defined to determine whether the rights claimed by the investor in this case belong to equity or creditor's rights behavior.In addition,understanding and applying the capital maintenance principle in the company law should be based on a complete case and a complete risk burden of all parties involved in investment and financing.The high premium equity purchase behavior will combine the risk burden of investors with their future company's shareholders withdrawal for considering whether the action has caused unequal infringement on other shareholders,and whether the compensation mechanism is in line with the fact that the compensation funds obtained from the company after valuation adjustment by investors should be included in the scope of the company law's regulation of shareholders' behavior? Due to the inevitable conflict between the organic law and the contract law in the Valuation Adjustment Mechanism,the thinking of commercial trial does not require judges to break away from the traditional thinking of civil law and embrace commercial customs.It requires judges to combine the traditional civil trial thinking with commercial trial thinking.Commercial subjects are naturally "destructive".Judging from their own characteristics,it is still necessary for judicial judgment to intervene in commercial acts properly.Taking this case as an example,regarding the Valuation Adjustment Mechanism as a conditional contract is more convenient for solving the conflict which arising from the compensation mechanism in the Valuation Adjustment Mechanism involved in the case.Through analyzing the real expression of the contracting parties.It is much more convenient to perform the contract if assessing “the share repurchase clause" as a share transfer clause.And the dynamic evaluation of the capital maintenance principle in the Valuation Adjustment Mechanism is also more beneficial to the comprehensive protection of the legal interests of the company law,also it is an appropriate solution to some similar disputes.Finally,combining the needs in the commercial field with the restrictive factors of legal judgment through case analysis and comparative analysis,also combining with different judgment ideas in judicial practice and taking the confirmation of Valuation Adjustment Mechanism in the minutes of the 9th national court civil and commercial trial as a reference.on this premise,a judgment idea that is more economical in judicial cost and more in line with the legislative intent is formed for this case through relevant analysis and research,...