重庆大学学报（社会科学版）2025，Vol.31Issue(1)：247-258,12.DOI:10.11835/j.issn.1008-5831.fx.2024.07.02
股债融合视域下对赌协议的本质属性与法律规制
Essential attribute and legal regulation to the VAM contract under the perspective of the integration of equity and debt
摘要
Abstract
With the promulgation and application of the 2023 Company Law,understanding the legal essence of VAM contract and addressing the challenges of their performance under the new legal framework has become a new focus of theoretical and practical research on VAM contract.Currently,VAM contract still face theoretical ambiguities and practical challenges.Firstly,there is confusion regarding the recognition and constitution of VAM contract,and distinguishing them from disguised debt is a core issue in judicial practice.Secondly,there is a paradox in the distinction between the validity and performance of VAM contract.Although VAM contracts are generally considered valid,the first case of invalidation due to violation of public interest in the securities market has emerged,highlighting the legal and factual difficulties in the performance of VAM contract,leading to the performance paradox of VAM contract.To address these issues,it is necessary to reclarify the legal nature of VAM contract and,on this basis,reconstruct normative solutions to the difficulties in their performance.Firstly,VAM contract have a special legal nature,being a product of the integration of equity and debt.This is reflected in the economic interest state carried by VAM contract,which exhibits both convergence and divergence,with the economic interests of VAM contract investors showing a tendency towards creditorization.The scope of VAM contract is complex,being constrained by corporate law,contract law,accounting standards,and financial regulatory rules.The mechanism for realizing the rights of the parties involved in VAM contract shows overlapping competition,with the transaction structure aligning with the characteristics of equity-debt combined financing.Externally,the investor's identity is recorded as a shareholder in company registration documents,while internally,the investor's actual legal status is a creditor rather than a shareholder.This cross-over and transformation of identities rely on tools from contract law and company law.Secondly,the legal dilemma of the inability to perform VAM contracts is rooted in their integrated nature of equity and debt.Contractual rules,organizational law rules,accounting standards,and regulatory rules should achieve coordinated unification in the handling of disputes and resolution of conflicts involving VAM contract.Finally,in the context of the combination of equity and debt,the relevant regulations on preference shares specified in the 2023 Company Law should be interpreted to achieve the implementation of VAM contract.In terms of categories,paragraph one of Article 144 can analogously apply to VAM contract.In terms of rights exercise,the general restrictions on the exercise of voting rights for preference shares are applicable,and directors,supervisors,and senior managers should be required to bear special good faith obligations to investors.Additionally,optimizing the rules for profit distribution and capital reduction,including financial source restrictions and related procedures,would promote the flexible handling of assets by companies without losing solvency,driving innovations in the capital system of company law,addressing the financing difficulties of small and medium-sized enterprises,and improving the business environment.关键词
对赌协议/股债融合/2023年《公司法》/公司资本制度/中小企业融资Key words
VAM contract/integration of equity and debt/2023 Company Law/company capital system/financing for SMEs分类
社会科学引用本文复制引用
冉克平,张仪昭..股债融合视域下对赌协议的本质属性与法律规制[J].重庆大学学报（社会科学版）,2025,31(1):247-258,12.基金项目
研究阐释党的二十届三中全会精神国家社会科学基金重大项目"健全社会信用体系和监管制度的法治保障研究"(24JDA018) （24JDA018）
