摘要
公司并购中的业绩承诺机制具有契约法和组织法双重属性。对其进行法律规范时不能仅从契约法视角出发,还应关注其所蕴含的组织法逻辑与问题。组织法视角下,业绩承诺的核心问题在于作为公司管理层的承诺方和作为公司股东的受诺方之间的利益冲突。围绕这一冲突,其组织法逻辑在于公司权力的配置与规范,以及制度利益的衡量与协调。对于前者,应当明确承诺方经营权和受诺方股东权的取得、行使与保护边界;而对于后者,则应当在契约法的自由价值和组织法的秩序价值间进行权衡,实现合同法规则、公司法规则、证券监管规则的协调统一,构建综合性的业绩承诺法律规范体系。
The performance commitment mechanism has been widely adopted in China s corporate merger and acquisition(M&A)market,playing a positive role in mitigating information asymmetry,enhancing credibility,and preventing the expropriation of interests by controlling shareholders.However,it may also lead to incentive distortions and negative spillover effects.During the performance commitment period,the acquiree(promisor)and the acquirer(promisee)may struggle for control over the target company,or even improperly interfere with the company s operations and manipulate its performance to pursue private gains,triggering numerous disputes.However,existing legal research has primarily focused on the contractual aspects of performance commitments,overlooking their implications for corporate governance risks and resulting in judicial challenges in legal application.This paper employs normative analysis,case studies,and comparative analysis to examine the conflicts of interest and power misallocation arising from the application of performance commitments in M&A transactions,proposing regulatory solutions.It reveals that performance commitment agreements possess dual attributes of contract law and organizational law.During the performance commitment period,the unique contractual arrangements result in a control inversion phenomenon where ownership of the target company vests with the promisee while“management power”remains with the promisor acting as the executive team.This structural misalignment incentivizes self-interested behavior and creates agency costs.To prevent corporate power from becoming a tool for private gain,contractual doctrines such as conditional performance and implied obligations may be invoked to establish that legal fictions shall apply when parties improperly facilitate the achievement/non-achievement of performance targets,and an implied obligation to assist shall be imposed on the promise.More importantly,it is essential to strengthen the integration between performance commitments and organizational law institutions such as fiduciary duties in corporation and securities disclosure requirements,constructing a systematic legal regulatory framework to balance the freedom of contract with the order of organizations.The innovations of this paper are as follows.First,addressing the inherent conflict between restrictive clauses on shareholder voting rights in performance commitment agreements and the theory of inherent shareholder rights,it advocates distinguishing between the validity and enforceability of such clauses,guiding the validity of such“governance contracts”.Second,to mitigate governance risks in the target company during the commitment period,it proposes establishing fiduciary duties for controlling shareholders to prevent promisees from abusing shareholder rights to obstruct performance growth.Third,it introduces“fair value”and“fair price”standards to enhance fairness scrutiny in the valuation process of performance commitments.Fourth,it calls for differentiated regulation of performance commitments in listed company M&A and establishes a comprehensive disclosure mechanism to protect investor interests.In summary,this paper proposes a regulatory framework spanning contract law,corporate law,and securities law for performance commitments as a novel commercial contract,offering insights for corporate compliance and judicial adjudication while bridging the gaps between legal disciplines and advancing the construction of China s autonomous legal knowledge system.
出处
《暨南学报(哲学社会科学版)》
北大核心
2025年第5期106-120,共15页
Jinan Journal(Philosophy and Social Sciences)
关键词
业绩承诺
公司并购
公司权力
利益衡量
performance commitment
corporate M&A
corporate power
interest balancing
