| Since 2003,Mengniu made use of the form of "convertible documents" to bet against Morgan Stanley and other institutions,and achieved a win-win situation,the VAM in China has developed vigorously for 17 years.The emergence of this agreement has successfully solved the problems of asymmetric information between the two sides of investment and financing,large valuation differences,weak voting rights of investors,and management's not faithful and diligent duty.With the rapid development of private equity investment fund in China,it further facilitates the savage growth of the VAM,and the folk proverb "no anti-gambling,no PE" has emerged.The VAM not only runs through the high-tech industries such as medical treatment,Internet and new energy,but also penetrates into the traditional industries such as film and television,tourism and catering.But even with such rapid growth,the legal community remains conservative about the emerging contract.Bet on basic agreement before 2008 is not recognized by the judicial,civil tend to settle disputes by arbitration,even the application of law is often through offshore link points,quoted by using conflict rules governing law applicable to foreign,typical offshore link points such as Mengniu case of the British virgin islands,cayman islands,through a shell company,it has established to evade the law in our country,to achieve clear bet played the role of the agreement.In the Haifu Case in 2008,after three trials,the Supreme Court decided that "the bet with the company is invalid and the bet with shareholders is valid".From then on,the use of counter-VAM was further developed and expanded in our country.In 2018,the Supreme Court decided the Hanlin Case after three trials that all the investment fundswere used for the company's development,and determined that the form of "bet with shareholders,company guarantee" was valid.This case breaks through the result of Haifu Case again,and indirectly takes the company as the subject of joint and several obligations for the failure of bet.In the case of Huagong in 2019,the Jiangsu high court,after the third trial,confirmed that "gambling with the company" was valid,which also marked that another major breakthrough had been made in the legal level of gambling with the company after 11 years of the VAM.The Summary of the Ninth Civil published by the Supreme Court in November 2019 further confirmed that the existence of monetary compensation and share repurchase clauses in the VAM was not an invalid reason for "anti-gambling with the company".The VAM reduced-capital repurchase clause,of course,belongs to the bet against the company,and compared with the cash compensation,equity compensation clause,it is more difficult to be recognized and accepted by the justice.The main reason is that a considerable number of scholars and judicial judges believe that the VAM is an investment in the form of standard terms,taking advantage of the financing party's lack of funds,eager to raise funds,abuse of the dominant position of the contract,obviously unfair,in violation of articles 40 and 54 of the contract law.And its action of repurchase terms in violation of the "company law" three basic principles: principle of capital maintenance,with shares with as well as the principle of independent legal person property rights principle,the target company property to a single shareholder,suspected of smoke escape capital contribution,improper,illegal distribution,repurchase by abusing the shareholder rights,infringement of the target company legal person,the legitimate rights and interests of creditors and other shareholders,caused by "contract law" article 52,5 of the company law article,34,142,166,20,and concluded that the VAM action type buy-back clause is invalid.From the standpoint of "respect for commercial practices and corporate autonomy",the author explains that the VAM is not only in line with the principle of voluntability and fairness in the contract law,but also in addition to improving the effective ways for the special entities such as state-owned enterprises with equity participation and enterprises to be listed for IPO to sign the VAM.It also conforms to the principles of the company law,such as independent property,capital maintenance,creditor protection and the same shares and rights.The author desalts the theory of equity bond dichotomy from the basis of claim to avoid the VAM from falling into the error of non-equity or debt;The article 52 ofthe contract law should not be abused by expanding the interpretation,by distinguishing between the mandatory norm of effectiveness and the mandatory norm of management.By clarifying the burden behavior and punishment behavior,the validity of the VAM contract is distinguished from the performance ability of the contract.In principle,the VAM is not deemed invalid,and the focus of the trial turns to the performance ability of the contract.Finally,from the perspective of legal hermeneutics,the author classifies the VAM's "invalid cause" as "performance obstacle",which does not affect the effectiveness of the contract itself.If the performance obstacle can be overcome,and the defects of the procedure,the subject and the source of funds can be made up,the author shall continue to perform and assume the liability for breach of contract. |
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