回购型对赌的裁判思路剖析及规则重构

On the Judicial Thinking of Repo-style Valuation Adjustment Mechanism and Rules Construction

当前经济形势下,企业融资的迫切需求使得对赌协议大行其道,但因对赌协议所发生的纠纷也随之增多。当前司法裁判中,"华工案"与《九民纪要》共同确立了回购型对赌的裁判规则,但现行裁判规则暴露出减资回购顺序颠倒、减资程序无法进行及回购审查标准不明等重大问题,致使对赌协议难以实际履行。造成上述问题的根本原因在于股东与公司间的资本性交易严重受限,现有的以资本维持规则和偿付能力测试为代表的公司资产分配规则存在缺陷,单一运用均难以适应当前的对赌实践需求。因此,结合我国司法现状,需要以资本维持为基础,结合偿付能力测试的优点,对公司资产分配规则予以重构,最后在此基础上提出了回购型对赌新的裁判路径。

In current economic situation, the urgent need for corporate financing makes the valuation adjustment popular, but the disputes caused by the valuation adjustment are also increasing. In current judicial adjudication, the "Huagong case" and the "Jiumin minutes" have jointly established the adjudication rules of repo-style valuation adjustment, but the current adjudication rules have exposed some major problems, such as the reversal of the order of capital reduction, the inability to carry out the procedure of capital reduction and the unclear review standard of repurchase, which makes it difficult to actually implement the valuation adjustment. The main cause of the above problems is that the capital transactions between shareholders and companies are seriously limited, and there are defects in the existing corporate asset allocation rules represented by capital maintenance rules and solvency tests. It is difficult to meet the current practical needs of valuation adjustment. Therefore, combined with the current judicial situation in China, we need to reconstruct the rules of corporate asset allocation on the basis of capital maintenance and the advantages of solvency testing. Finally, on this basis, we put forward a new judgment path for repo-style valuation adjustment.