An Argumentation of the Enforcement of VAM under the Company Law of 2024——On the Basis of Clarification of the Relationship Between the Contract Law and the Company Law
An Argumentation of the Enforcement of VAM under the Company Law of 2024——On the Basis of Clarification of the Relationship Between the Contract Law and the Company Law
The Contract Law and the Company Law are normatively parallel,with their respective values and functional synergies.The essential issue behind the enforcement of Valuation Adjustment Mechanism(VAM)is the recognition of the relationship between the Contract Law and the Company Law.The mandatory norms of the Company Law should follow the basic rule of"minimum and necessity"when they intervene in the field of contract,without affecting the validity of contract or the enforcement of contract as far as possible.The capital maintenance principle does not constitute an absolute obstacle,and both retained earnings and capital accruals in the entity may serve as a source of funds.The procedures of company resolutions and creditors protection may also be subject to interpretation or change of course.The amendment of the Company Law adding repurchase-request clause for other shareholders when controlling shareholders abuse shareholder rights,as well as class-share clause,has opened up new space for the enforcement of VAM.
关键词
新公司法/对赌协议/履行不能/资本维持/合同自由
Key words
Company Law of 2024/VAM/impossibility of performance/capital maintenance principle/contract freedom
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