| With the development of global capital market,the circulation of capital in the world has been quickened gradually.As a VAM to adjust the interests of both sides of equity investment and financing,it is more and more widely used in the activities of equity investment and financing at home and abroad.In China,because VAM is an imported product,there is no explicit regulation on it in the current law of our country,so the legal problems arising from VAM have aroused many disputes in the theoretical and practical fields,and has produced certain perplexity to the judicial practice.In the "Hai Fu case",which was brought to court because of the bet agreement dispute,the trial and judgment of the three-tier court are different.After the Supreme People’s Court ruling,there was a popular interpretation of the validity of a bet: In a judicial ruling,a bet between an investor and a target company is invalidated because it violates a mandatory provision of the law.On September 11,2019,the 319 th meeting of the Professional Committee on Civil Administration of the Supreme People’s Court adopted the minutes of the National Conference on Civil and Commercial Trial Work(hereinafter referred to as "the minutes of the nine citizens"),the author gives a guiding thought on the trial of the dispute cases of VAM,which is no longer confined to the determination of the validity of VAM,but divided the VAM into two aspects:Validity of contract and performance of contract.Moreover,the record acknowledges that the VAM between the investor and the target company is valid in principle,but the actual performance of its terms should be examined according to the relevant provisions of the company Law of China.Because VAM is the outcome of the market subject’s autonomy,it presents complex and various concrete forms in practice according to the different demands of the participants,so it is impossible to analyze every VAM in theory.However,the use of VAM has become a common phenomenon in China’s equity investment and financing activities.Therefore,this paper intends to explore the legal issues of this phenomenon in the context of the "nine people’s records",this paper defines theconcept,types and basic theories of VAM,analyzes its legal attributes from the perspective of the nature of the contract,and analyzes the validity and performance of VAM from the perspective of "the records of the nine people",sum Up different views,and finally put forward to improve the judicial application of VAM.The first part of this paper introduces the basic theory of VAM.As an investment tool transplanted from abroad,the concept of VAM is defined firstly.Secondly,in order to meet the needs of both sides of investment and financing,VAM is also characterized by diversity in content design.Finally,from the perspective of cause,the author analyzes the three theoretical bases of VAM: Information Asymmetry Theory,principal-agent Theory and Game Theory.In the second part,the author makes a brief introduction and analysis on the controversial views on the legal nature of VAM,and thinks that VAM is similar to aleatory contract and option contract,but in fact it is still quite different.According to the comparison of appearance and nature,the VAM should be a kind of contract with conditions attached to obligation,and it should not be one of the 15 kinds of well-known contracts in China’s contract law.The third part is the exploration of the validity of VAM.First of all,it combs the attitude of the judiciary on the validity of the VAM agreement,summarizes the change of thinking on the validity of the VAM agreement,and combines the thinking put forward by the "nine people’s records",the two kinds of revocable contract cases stipulated in the contract law of our country are divided into two aspects: validity and performance.Then it analyzes the validity of the VAM contract,and concludes that there is no legal situation and major misunderstanding of the VAM contract being invalid.Secondly,combining the relevant provisions of the company law of our country,this paper analyzes the performance of the common provisions of the VAM,and concludes that the substantive performance of the VAM does not violate the mandatory provisions of the company law,it doesn’t make it any less fair.In the fourth part,combining the idea of protecting trade safety and investment safety and balancing the interests of different subjects,the author provides somejudicial suggestions for the VAM in theory.Firstly,the legal nature of VAM is clarified on the basis of judicial application,and the relevant legal system involved in practice is improved.Secondly,the review principles and thinking of VAM are improved in judicial trial,in order to give full play to this mechanism of China’s capital market development brought about positive role. |
