Research On Problems Of Practicability Of Valuation Adjustment Mechanism

Since the “Haifu case” established in 2012 that the investor and the target company’s Valuation Adjustment Mechanism,VAM is invalid,most investors will avoid the risk of VAM with the target company and choose to gambling with the target company’s shareholders or actual controllers.However,in 2019,the "Hua Gong Case" broke through the previous thinking on gambling disputes and recognized that the investor and the target company were effective in gambling.However,the "Minutes of Civil and Commercial Meetings" also absorbed the views of the "Hua Gong Case" and established the relationship between the investor and the target company.The judging standard for the validity and performance of the inter-between gambling agreement,that is,in the absence of statutory invalidity,the gambling agreement signed between the investor and the target company is valid in principle,but it must comply with the relevant provisions of the Company Law when it is actually performed.Mandatory regulations.This adjudication rule provides guidance for judicial practice,and also makes the issue of the validity of the gambling agreement signed between the investor and the target company no longer be the focus of mainstream disputes in the practical and theoretical circles,and the "spearhead" is directed at gambling.The actual implementation of the agreement.Although the "Minutes of Civil and Commercial Meetings" recognizes the validity of the gambling clause between the investor and the target company,in actual implementation,the "Minutes of Civil and Commercial Meetings" and subsequent related cases require the company to complete the capital reduction process before fulfilling its equity obligations.The capital reduction procedure has become a necessary prerequisite for share repurchase.Whether this judging approach makes the gambling agreement realistically enforceable remains to be explored.This article will sort out judicial cases and summarize the judgment ideas.It will focus on the legal issues related to the fulfilment of the gambling agreement after the promulgation of the "Minutes of Civil and Commercial Meetings",analyze the obstacles to the performance of the gambling agreement from the perspective of capital maintenance principles and solvency standards,and learn from the Thought Works case in the United States.Theories such as "legally available funds" and commercial judgment rules strive to reconstruct the fulfilment judgment standards that are more suitable for my country’s national conditions and are conducive to optimizing the capital market environment.In order to obtain enlightenment on the settlement of gambling disputes in my country’s equity investment and financing market,so as to promote the healthy development of the capital market.