对赌协议的法律构造与定性观察

摘要

Although Valuation Adjustment Mechanism（VAM） is similar with gambling in the respect of literal meaning,they are different in essence yet.VAM is a kind of property self valuation mechanism in private law,which is common in private equity investment.VAM aims at future financial performance of the enterprise,takes the equity held by the parties as the bargaining chips,set on the basic of parties autonomy to purchase the optimum allocation of property of investors and financiers.As an innovative financing tool,VAM not only reduces the agent costs of investors,but also reduces the financing costs of financiers.As an untypical contract VAM is different from the contract with effective terms and is similar with the aleatory contract.VAM which is used in private equity investment is legal and reasonable under the legal structure in our country.%对赌协议虽有赌博的字眼与表征,但与零和博弈的赌博存在本质的分歧与泾渭分明的界限。对赌协议是私法上财产自我估值机制的一种形式,是私募股权投资中常用的估值调整机制。作为一种金融创新工具,即可降低投资方的代理成本,又可降低融资方的融资成本。对赌协议作为一种非典型合同,与附生效条件合同貌合神离,可归结为射幸合同,在我国现行法律框架下,私募股权投资中对赌协议的运行不存在任何合法性障碍。