Research On The Validity And Performance Of Gambling Agreements

Although the Valuation Adjustment Mechanism is commonly used in the investment field,the evaluation of the Valuation Adjustment Mechanism in trial practice has gone through several stages since the the case of Suzhou Haifu.Although the " Minutes of the National Civil and Commercial Trial Work Conference of Courts" stipulates the validity and performance of the Valuation Adjustment Mechanism,there are still some improprieties and the conflicts that may occur during the performance have not been resolved.Therefore,it is still a subject worthy of study.This article collects and sorts out the judgment results of case related to the Valuation Adjustment Mechanism,analyzes many legal issues that may be involved in the Valuation Adjustment Mechanism,and conducts legal searches.Using these as the research materials,with the methods of historical research,empirical analysis and comparative analysis to analyze the validity and performance of the Valuation Adjustment Mechanism in our country.First of all,as a valuation adjustment mechanism in the investment field,it reaches a balance between investors,financiers and target companies.It is a product of the autonomy of the parties' will,so the determination of its effectiveness follows the provisions of the Contract Law.The validity of contract disputes is first determined.Therefore,according to the attitude of judicial practice in different periods and typical cases or relevant rules,it is divided into three stages:prudent,exploration and encouragement.The " Minutes of the National Civil and Commercial Trial Work Conference of Courts " proposes that in addition to the provisions of the "Contract Law",the provisions of the "Company Law" should also be applied,and its effectiveness and performance should be distinguished.In the absence of invalid grounds as stipulated in the contract law,try to deal with their effectiveness is affirmed.These regulations are groping in longterm practice and have greatly promoted the application and development of the Valuation Adjustment Mechanism.Secondly,although the attitude towards the validity of Valuation Adjustment Mechanism has changed,and rules such as the " Minutes of the National Civil and Commercial Trial Work Conference of Courts " have appeared to regulate them,there are still shortcomings.On the one hand,the level of rules is low,the number is small,and they cannot cope with the many problems that exist in reality;on the other hand,although the validity is separated from the implementation,due to the principle of capital maintenance,the implementation of the Valuation Adjustment Mechanism still encounters obstacles,and some of the regulations may lack operability and still have unreasonable points,especially in terms of the reparation in cash related to profit distribution and share repurchase involving capital reduction.Third,this article starts from the rules and practices both in China and aboard,sums up the lessons learned from the US investment cases and the principle of distinction in civil law.Regarding the determination of the validity of Valuation Adjustment Mechanisms,the distinction principle in the Property Law and other rules support that it should separate the validity and performance.In addition,in the Delaware Thoughtworks case and the ODN case,the judgments determined "legally available funds",focused on the commercial judgment of the board of directors,and introduced independent third parties such as finance and law,which are balancing the company's capital flow to shareholders.At the same time,the Securities Regulatory Commission's regulations on share repurchase of listed companies and non-listed companies also include the criteria and considerations for the company's capital outflow to shareholders.These rules can be used as a reference to solve the problem of the implementation of the Valuation Adjustment Mechanism.Finally,drawing on the practice of foreign courts on Valuation Adjustment Mechanisms and the guidance of other domestic laws and regulations,we put forward suggestions to improve our country's legal regulations on Valuation Adjustment Mechanisms.In view of the shortcomings of current laws and regulations,the introduction of a special contract interpretation on Valuation Adjustment Mechanisms is an important step.In addition,to give full play to the value of the Valuation Adjustment Mechanism,the most important thing is to solve the problem of the implementation of the Valuation Adjustment Mechanism.It is recommended to use solvency to determine the performance standard of the Valuation Adjustment Mechanism.Taking a step back,still under the principle of capital maintenance,grasp the distinction between the share repurchase resolution and the capital reduction resolution,and analyze the logical relationship between the two.In addition,the board of directors can issue a special report to determine the scope of performance and separate the trial from the company's autonomous region.The court will review its prudential obligations in accordance with the report of the board of directors to determine whether the Valuation Adjustment Mechanism can be fulfilled,thereby solving current problems.