论对赌协议的规制路径转变

On the regulatory path transformation of Valuation Adjustment Mechanism

对赌协议作为重要的私募融资手段被实践广泛采纳，中国对待对赌协议的态度也从原来的绝对禁止向现阶段的条件化接受转变。以《全国法院民商事审判工作会议纪要》的发布为转折，法院对于对赌协议的审理采取协议效力与协议可履行性分别判断的区隔论。然而区隔论只是具备形式上的促成合同效力判断的逻辑性和体系性，对解决对赌协议问题并无裨益。在资本维持原则的限制与调整下，应当适当调整对赌协议的审理要件，从区隔化的判断上回归到非区隔化的形式与实质的统一。同时，根据具体情况审理协议履行的可能性，在利益平衡的基础上妥善处理对赌协议。

The valuation adjustment mechanism has been widely adopted in judicial practice as an important means of private placement. China's attitude towards the valuation adjustment mechanism contract has turned from the absolute prohibition into conditional acceptance. The promulgation of “the 9th conference minutes” acted as a turning point. From then on, the court begins to adopt the doctrine of separation which takes the validity and the performance of the contract respectively. However, the doctrine just meets with the formal logic and systematism of the judgment of contract validity, and does no help to solve the problem of the valuation adjustment mechanism. Under the restriction and adjustment of the principle of capital maintenance, the trial of prerequisite of the court should return to the indistinction doctrine while hearing the cases regarding valuation adjustment mechanism contracts in order to achieve the unity of form and substance. At the same time, trials should turn to the judgment of the performance possibility of the contract and handle the valuation adjustment mechanism contract properly based on the balance of interests.