对赌协议的法律性质分析

An Analysis about the Legal Nature of the Valuation Adjustment Mechanism in China

对多年来,随着中国大陆的私人公司投资、上市规模的不断扩大与深化,以及相关对赌协议在实践中产生的利弊与法律争议,对赌协议已经成为学术研究的热点。对赌协议具有射幸合同的构成要件和特征,属于射幸合同。对赌协议的本质是对被投资企业价值的重新评估,同时,它不符合赌博性质的射幸合同的特点,因此,不应当为法律所禁止。

Gambling agreement ,also known as the Valuation Adjustment Mechanism. Generally, it is an agreement based on the company performance of private equity between the investors and the founding shareholders （ or the management shareholders）. For many years, with the expansion and deepening of the investment in public corporation in China's Mainland, as well as the advantages and disadvantages of the relevant gambling agreements arouse in practice and the legal disputes, the gambling agreement has become a hot topic in the academic research. The gambling agreement has the elements and characteristics of the aleatory contract, and belongs to the aleatory contract. The essence of the gambling agreement is the reassessment of the value of the invested enterprise ; at the same time, it does not correspond to the characteristics of the gambling nature of the aleatory contract. Therefore, it should not be prohibited by law.