風險投資與對賭協議──兼論2023年中國大陸公司法修法

「對賭協議」為中國大陸特有的股權交易機制，實務上常見於私募股權投資場域中。有鑑於該領域中目標公司多屬於新創產業，其公司資訊較不透明，容易產生資訊不對稱情形，中國大陸實務界在官方默許下發展出對賭協議機制，協助消弭資訊不對稱之餘，亦可有助於新創產業融資困境。但中國大陸官方在相關制度規劃時，較未見整體性考量，當出現爭議時，法院對於相關案例產生不同看法，甚至在「海富案」中出現「對賭協議無效」等見解，衝擊學術界與實務界思維。中國大陸官方為解決紛爭遂於「九民紀要」中，針對對賭協議提出官方立場，但似乎未將紛爭解決而產生所謂「契約有效履行不能」的窘境。
本文整理中國大陸相關判決與學者論述，研究對賭協議學術與實務運用，並以我國相關案例作為對照，期待能提供國內業者與司法實務參考，並提出特別股作為對賭協議標的之可行性與配套措施。

The VAM agreement (Valuation Adjustment Mechanism) is a unique transaction mechanism in private equity investment in China. Its primary purpose is to address the common issue of information asymmetry in the startup sector while providing financing support to entrepreneurial companies. Due to the early-stage nature of startups and their lack of transparency, investors often face challenges in risk assessment. The core of the VAM agreement lies in the agreement between investors and entrepreneurs on future performance targets. If the targets are not met, the entrepreneur must assume specific responsibilities or compensate the investors. However, due to ambiguous legal regulations and inconsistent enforcement, the application of VAM agreements in China has sparked considerable controversy.
In judicial practice, the validity of VAM agreements is at the center of disputes. In the“Haifu Case”, the court ruled for the first time that VAM agreements were invalid, a decision that had a profound impact on both academic and practical circles. The“Ninth Conference Minutes”a document issued by the Supreme People's Court to unify judicial standards, sought to resolve related disputes and establish the validity criteria for VAM agreements. However, the practical implementation still faces the dilemma of“contracts being valid but unenforceable”, indicating that the mechanism has not yet fully reconciled legal implementation with market needs.
Moreover, the application and regulation of VAM agreements differ significantly between China and Taiwan. Taiwan’s legal framework for supporting the startup sector focuses on the use of preferred shares. With their flexibility and legal safeguards, preferred shares serve as an effective tool to balance the interests of entrepreneurs and investors. Compared to VAM agreements, preferred shares involve lower operational risks and less controversy. Replacing VAM agreements with preferred shares as the subject matter of investment contracts can reduce legal disputes arising from performance disagreements and enhance the stability of the investment environment.
This paper compiles relevant rulings and academic discussions in China to explore the legal basis and practical application of VAM agreements and contrasts these with cases from Taiwan. It aims to provide references and suggestions for domestic businesses and judicial practices, including improving legal frameworks, optimizing contract terms, establishing judicial and administrative support measures.
In conclusion, the development of VAM agreements in China reflects the ongoing reconciliation between market forces and legal systems. Their effective application requires a balance between the legal framework and market demands. By comparing Taiwan’s preferred share system with Mainland China’s practical experiences, more effective financing solutions can be provided for the startup sector, thereby promoting the joint economic progress of both sides.