| As a productive arrangement in the capital market,the VAM is essentially a valuation adjustment mechanism or a risk allocation mechanism for future uncertain events,although The Haifu Case denies the effectiveness of the VAM with the target company,but it does not affect the development of VAM in China's capital market,which is increasingly showing its strong vitality.The article takes the VAM involved by R&D oriented enterprises as the main research object,mainly based on the new concept and new normal consideration of capital market supervision reflected by the establishment of Sci-Tech innovation board.Sci-Tech innovation board is positioned to serve innovative companies that comply with national strategies and master key core technologies.Compared with other boards,Sci-Tech innovation board has relaxed the entry barriers,allows enterprises that suffer losses or adopt dual-class share structure to go public,and has also given clearance to VAM that meets specific conditions.In November 2019,the Jiumin Minutes Document was formally released,which proposed an innovative refereeing path for key and difficult points in civil and commercial trials.And from the perspective of protecting the innovation of financing models,the effectiveness andimplementation of the VAM,which is more controversial in practice,were targetedly summarized.These changes reflect the inclusive growth of China's capital market.Based on this,the article selects the VAM involved by the R&D oriented enterprises as the main research object to better fit the policy orientation and market trend,and comprehensively uses a variety of research methods to carry out deep-dive research.The article is divided into four parts according to the logic of “proposing problem-analyzing problem-solving problem”.The first part analyzes the operation mechanism of the VAM and the main demands of both parties.Firstly,it analyzes the legal nature of the VAM.The VAM should be an obligation conditional contract in nature,so it can refer to the rules applicable to the effective conditional contract.comparing the market of VAM within and outside the domain,the similarities and differences between the environment and the legal soil can be seen from the summary of extra-territorial experience,and the VAM does not necessarily conflict with the company's legal control.Secondly,it analyzes the operation mechanism of the VAM in the primary market and the secondary market,and abstracts the legal elements involved by analyzing the typical scenarios of VAM in the primary market and the secondary market.Finally,it returns to the main research object,analyzes the similarities and differences between the financing modes of R&D oriented enterprises and traditional enterprises,clarifies the important significance of VAM in the development of R&D oriented enterprises,and analyzes the main demands of investment and financing parties in the VAM,and it can be seen that the two parties have a combination of interests in the VAM.The second part analyzes the focus of controversy and the application of law in the practice of VAM.Firstly,the article sorts out the system norms involved in the VAM.The VAM is a typical commercial contract,and the comprehensiveness of the departmental laws involved leads to the complexity of legal disputes.By selecting typical cases of VAM,it can analyze and explore the changes in the attitude of the judiciary towards it.It also explains the system and content of the part of VAM of the newly issued Jiumin Minutes Document.Secondly,it analyzes the controversial focus of the VAM from different perspectives,including the three dimensions of “subject”,“target” and “relief”,to fully explore the relevant dispute points,and the core of the dispute is that the equity repurchase clause or cash compensation clause in the VAM means that the outflow of property from company to shareholders,touching on the principle of capital maintenance.Finally,based on the context of R&D oriented enterprises financing,it analyzes the possible difficulties in the judicial application process in the VAM disputes,and discusses judicial application space of the newly issued Jiu Min minutes and related financial documents in the settlement of VAM disputes,as well as the application of judicial infrastructure such as financial court to resolve related disputes.The third part discusses the legal basis for responding to the controversial focus of the VAM.Firstly,from the perspective of company operation and governance,it is clarified that the VAM does not contradict the principle of capital maintenance.It can take into account the protection of the rights of stakeholders,and maintaining the company's capital in the form of invalid contract should not be the decisive criterion for determining the effectiveness of the VAM of company's substantial participation.Secondly,from the perspective of financial efficiency and security,clarifying that although VAM have certain negative effects,if used properly,VAM are to resolve the contradiction between the supply and demand of funds,which is conducive to promoting the development of China's multi-level capital market,but it should be standardized and guided.Finally,the rationality of VAM is discussed from the perspective of instrumental rationality and value rationality.The VAM is a productive tool for the capital market,which satisfies the desire of capital to pursue economic interests,and the VAM is also conducive to enhancing the ability of the capital market to serve technological innovation.The fourth part proposes perfect suggestions from the perspective of different departmental laws for the problems existing in the practice of VAM.Firstly,from the perspective of contract law,it is necessary to improve the understanding and application of effective mandatory provisions.If the VAM contravenes the principle of capital maintenance,it must be invalidated by violating the mandatory forcing regulations,but the VAM.can fully respect the principle of capital maintenance.Andit also need to improve the effectiveness connection between the investment agreement and the shareholder agreement.Secondly,from the company law perspective,the relevant provisions of the company's capital reduction process should be detailed,including the resolution process of the differential capital reduction,the effectiveness of the notification process,and the choice of capital reduction mode.Thirdly,from the perspective of securities law,it must strengthen the guidance of the primary market including guiding market entities to establish the correct valuation adjustment concept.And it also need to strengthen the supervision of information disclosure in the secondary market.The target company must follow the requirements disclosure of relevant VAM information.Finally,from the perspective of procedural law,on the one hand,it is necessary to improve the application of judicial documents and guidance cases;on the other hand,it is also necessary to strengthen the construction of court financial chambers. |
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