The Company's Research On The Legality Of Gambling Investment Agreements

"Company as the subject of valuation adjustment mechanism " is one of the two basic types of "valuation adjustment mechanism".In 2012,the Supreme Court's judgment of "haifu case" affirmed the legitimacy of "shareholders as the subject of valuation adjustment mechanism" and denied the legitimacy of "company as the subject of valuation adjustment mechanism".The vast majority of the court followed the opinion of "haifu case",holding that the "company as the subject of valuation adjustment mechanism" was an invalid contract.It is not only inconsistent with the legal situation of the invalidation system of the contract,but also seriously damaged the legitimate rights and interests of the investor.In 2019,the summary of the civil and commercial judicial work of the national courts affirmed the legitimacy of "company as the subject of valuation adjustment mechanism",but there are still disputes on the understanding of such issues as the type of contract,the value of the system,the nature of the company law and the invalid system of contract.As a kind of atypical contract,it is a special commercial contract arrangement that adjusts the enterprise valuation at the time of investment by agreeing on the future uncertain matters that affect the enterprise value.It is to effectively deal with the uncertainty of enterprise value evaluation and the moral hazard caused by the principal-agent relationship,and it is an important guarantee for the security of equity investment and financing transactions.In terms of the type of contract,there are many opinions such as "lucky contract","option contract" and "conditional contract",which try to classify valuation adjustment agreement into a specific contract category.However,the above theories do not fully reflect the special features of valuation adjustment mechanism.In the current reality of "complicated legal nature and many disputes",excessive entanglement of contract type ownership may not help solve civil and commercial disputes.It is a reasonable choice to fully respect the basic theory of contract law and the current situation of judicial practice to identify it as an atypical contract.Due to the reasons of "insufficient acceptance of financial innovation,lacking of explicit provisions of law,strong color of corporate law capital control,negative negation of securities regulatory agency and conservative judicial philosophy",the legality recognition of "company as the subject of valuation adjustment mechanism" has fallen into judicial dilemma.According to the analysis of the controversial focus in judicial practice,it does not belong to the guarantee clause of joint venture contract,nor can it be deemed invalid due to the listing examination standard in the field of securities supervision.With the modification of the company law,the understanding of the capital maintenance principle has changed,and the behavior of the target company's equity repurchase and cash compensation for fulfilling the compensation obligation is no longer regarded as the violation of the capital maintenance principle.If its legality is denied,it will not only result in conflict with existing laws and regulations,but also lead to a major conflict between the return of property and the protection of creditors' interests under the invalidation of the contract,which will affect the enthusiasm of equity investment."Company as the subject of valuation adjustment mechanism" still has practical significance.First,it is to balance the interests of both sides of investment and financing to avoid the moral hazard caused by increasing the burden of shareholders' responsibilities.At the same time,as the direct beneficiary of equity investment,the obligation of the company for its own financing conforms to the principle of risk-return balance.Secondly,as the subject of compensation obligation,the company can not only make up for the investment loss,but also adjust the enterprise valuation.Finally,it also reflects the respect for the independence principle of corporate personality and the pursuit of perfect corporate governance.According to the basic theory of civil and commercial law,the judgment path of "company as the subject of valuation adjustment mechanism" should be reconsidered and rebuilt.First of all,at the level of basic methods,we should adhere to the basic concept of civil and commercial trials,prudently recognize the validity of new types of contracts such as enterprise valuation adjustment agreements,and avoid invalidating contracts simply because there are no provisions in the law.At the same time,we should also follow the special logic of commercial laws and fully respect autonomy of will and balance of interests.Secondly,the discussion of the core issue of legality under the contract invalidation system is transformed into the question of how to distinguish the effective mandatory provisions from the management mandatory provisions.Thirdly,when invoking the capital maintenance principle and the relevant mandatory provisions of the company law,we should re-distinguish and analyze the content of the regulation according to the revised legislative spirit of the company law and the evolution of the relevant system,and avoid simply identifying the relevant provisions of the company law as "effective mandatory provisions".Finally,we should fully implement the basic theory of "contract law" and the distinction between "effectiveness of contract" and "performance of contract" in the minutes of the meeting of the Supreme Court,consider the principle of capital maintenance from the perspective of contract performance,and avoid the shortcomings of the past.On the premise that contract is legal and effective,we should also adhere to the asset credit concept and solvency standards to avoid infringing on the interests of creditors due to contract performance.