主权财富基金法律监管问题研究

发布时间：2019-02-16 00:11

【摘要】：主权财富基金最早产生于上世纪50年代,但真正繁荣是90年代以后尤其是21世纪以来。目前,主权财富基金大多来源于国家的财政盈余、外汇储备和自然资源收入,这些国家为了财政稳定、资产增值或长期发展等宏观经济目的将这部分资金投资于国内外市场。但主权财富基金政府所有及透明度普遍偏低及本身高风险高收益的特点,使得作为主要投资接受国的发达国家纷纷重拾“投资保护主义”大旗。一时间,对主权财富基金监管成为各国和国际社会关注和争论的焦点。市场风险、政治风险、操作风险和社会风险的存在,使得国际社会逐渐达成共识,对主权财富基金的监管是必要的,应坚持以市场为基础,同时以国际监管协作为平台的监管机制。同时主权财富基金作为“特殊”的商事主接受母国和投资接受国的双重监管具有现实意义和法律依据。目前绝大多数设立国都有对主权财富基金国内立法,从其设立准据、治理结构、信息披露、风险控制对本国主权财富基金进行有效的监管。相比而言,投资接受国往往通过公司法、证券法的私法限制和国家安全审查、外资准入等公法手段对其进行约束和监管,但私法保护个人利益的特性及公法过于严苛易引发投资保护主义,使得投资接受国监管存在先天不足。由于主权财富基金的投资大多属于国际投资,因此国际监管合作成为必然。美国率先与世界上最大的两支主权财富基金签订了“华盛顿协议”,随后欧盟、国际经合组织和国际货币基金组织相继出台了一些成果,但这些都不是国际法意义上的条约不具有法律效力,因此国际监管合作的道路同样任重而道远。我国于2007年9月成立了中国投资有限责任公司,现为亚洲最大也是世界第五的主权财富基金,但自成立以来存在诸多问题给我国当前监管体系带来了挑战,健全相关法律法规、完善法人治理结构和信息披露制度、健全风险防范机制成为紧要任务。与此同时,我国经济的持续稳定发展及良好的投资环境也吸引了大量的外国主权财富基金投资于我国,因此尽快完善我国的国家安全审查立法、外资并购法等势在必行。我们也理应积极投身到多边监管规则的制定中,使其更接近和满足本国利益。
[Abstract]:Sovereign wealth funds originated in the 1950s, but the real prosperity is after the 1990s, especially since the 21 st century. At present, most sovereign wealth funds come from national fiscal surplus, foreign exchange reserves and natural resource income. These countries invest these funds in domestic and foreign markets for the purpose of fiscal stability, asset appreciation or long-term development. But sovereign wealth fund government ownership and transparency are generally low and their own characteristics of high risk and high returns, so developed countries as the main recipient of investment have regained the banner of "investment protectionism." For a time, the regulation of sovereign wealth funds has become the focus of attention and debate among countries and the international community. The existence of market risks, political risks, operational risks and social risks has led the international community to come to a consensus that the regulation of sovereign wealth funds is necessary and should be based on the market. At the same time, international regulatory collaboration as the platform of regulatory mechanisms. At the same time, the dual supervision of sovereign wealth fund as "special" commercial host country and investment receiving country has practical significance and legal basis. At present, the majority of founding countries have domestic legislation on sovereign wealth funds, from the establishment of their applicable, governance structure, information disclosure, risk control to effectively monitor their sovereign wealth funds. In contrast, investment recipient countries often restrict and supervise them by means of public law, such as company law, private law restriction of securities law, national security review, and foreign capital access. However, the characteristics of private law protecting individual interests and the strictness of public law may lead to investment protectionism, which makes the supervision of recipient countries inherently deficient. Because the investment of sovereign wealth fund mostly belongs to international investment, international regulatory cooperation becomes inevitable. The United States took the lead in signing the Washington Agreement with the two largest sovereign wealth funds in the world. Subsequently, the European Union, the International Economic Cooperation Organization and the International Monetary Fund issued some results one after another. But these are not treaties in the sense of international law that have no legal effect, so the road of international regulatory cooperation is also long. China Investment Co., Ltd. was established in September 2007. It is the largest sovereign wealth fund in Asia and the fifth in the world. However, since its establishment, many problems have brought challenges to China's current regulatory system and improved relevant laws and regulations. Perfecting corporate governance structure and information disclosure system and perfecting risk prevention mechanism become urgent tasks. At the same time, the sustained and stable development of our economy and the good investment environment have also attracted a large number of foreign sovereign wealth funds to invest in our country, so it is imperative to perfect our national security review legislation and foreign merger and acquisition law as soon as possible. We should also take an active part in multilateral regulation to bring it closer to and satisfy our national interests.
【学位授予单位】：山东科技大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.28

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