返程投资法律监管问题研究
发布时间：2018-09-18 20:34
【摘要】：目前,中国外国直接投资存量占国内生产总值(GDP)的比重已远超国际平均水准。然而,自20世纪末至今,国际组织、中国相关机构及业内人士频频指出,中国的外国直接投资存量中有很大一部分是返程投资,并非真正意义上的外国直接投资。返程投资现象在中国乃至全世界都已经是极为常见的企业投资行为,然而各国就此行为多为默认或放任态度,致使返程投资成为了很多不法分子进行非法活动的途径,同时也助长了避税等现象的发生。返程投资作为国际投资的一个重要组成部分,与离岸金融中心密不可分,多数是利用离岸金融中心这一金融“工具”进行的资本运作行为。返程投资分为两大类,一类是出于享受外资待遇、实现避税、保护私人财产及进行金融投机行为等目的所进行的非融资性返程投资,另一类是为进行境外公募或私募而开展的融资性返程投资。这两类返程投资现象,前者会对中国的经济发展、金融稳定及社会公平造成负面影响,后者则有利于中国资本市场的发展,但尚需要更为完善的监管措施以进行规制和管理。尽管中国商务部、国家外汇管理局等部门已经先后出台诸多法规对返程投资行为予以规制,然而违背法律规定的返程投资现象仍是异常猖獗。由于返程投资利用了离岸金融中心的保密制度,使得返程投资获得了天然的遮蔽,境内居民在办理境外投资登记、备案手续及外汇登记时,往往隐瞒返程投资相关信息,甚至存在直接绕开审批手续的情形,致使难以实现法律及政策的设计初衷,返程投资行为主体也难以被准确甄别。此外,由于返程投资与外商投资行为相互融合及混淆,使得有关主管部门对返程投资主体及其行为的鉴别难上加难。因此,本文就返程投资的成因、运作模式、主要风险等进行分析,指出目前监管制度存在的问题,在借鉴国外经验的情况下,就中国完善返程投资监管制度提出建议。本文采用了规范分析、比较研究、案例分析的研究方法,以审批、外汇、税务相关法律制度变革及现行有效的法规体系为基础,讨论返程投资自松散宽松至逐渐严密的监管制度,同时指出现行法律体系的缺陷。鉴于中国对返程投资的规制力度远不如世界上其他发达国家,因此有必要借鉴发达国家,甚至国际组织及离岸金融中心本身对返程投资的监管制度,并将其中高效并且适合中国国情的监管方式引荐过来。由于对返程投资缺乏一个完整的监管,并且对通过返程投资进行的协议控制等层面存在法律监管真空的现象,现实中利用返程投资进行的非法操作及失败案例频发。本文通过引入这些案例,引申出导致种种负面结果的现实风险,从而对症下药,提出解决方法。本文正文部分主要分四个层次进行论证,首先明晰了返程投资与离岸金融中心的关系及通过离岸金融中心实现返程投资的成因。文章认为,大多数离岸金融中心对当地注册公司要求的设立程序简便、税收优惠充足、后续监管宽松,因而各国企业及个人纷纷前至离岸金融中心注册设立境外公司,中小企业尤其偏爱注册离岸公司。随后,本文探讨了返程投资的运作模式,包括新设企业模式、并购模式,再而分析了返程投资运作模式的延伸,包括协议控制模式、信托模式,并对每种模式的流程及要点进行了梳理。其次,本文重点讨论了返程投资的主要风险及监管现状,包括资本安全风险、税收流失风险、信息披露风险、协议控制合规性风险等,通过引入诚通大案、广州某公司转移定价案、美国浑水公司做空中国概念股事件、宝生钢铁上市失败事件等案例的形式对现实风险进行了进一步的揭示。在此基础上,本文从现行有效的审批制度、外汇制度及税收制度出发,探讨目前的监管制度存在的问题,包括机构投资者的返程投资强制披露不足、个人投资者的返程投资后续监测缺乏、资金来源审核缺失等。随后,文章借鉴了主流国家、国际组织及离岸金融中心对返程投资的监管制度,选取了代表性国家及国际组织对返程投资态度的演变,结合离岸金融中心因应对国际压力而作出的回应,探讨了目前国际上对返程投资的主流监管制度。最后,文章提出了完善中国返程投资监管制度的措施建议,包括区分返程投资登记,采用资本控制标准认定法人国籍;视返程投资企业为内资企业,不予享受差别待遇;引入“透明度”审查,重点监测返程投资企业;加大资金来源审核力度,实施定期报告制度;建立离岸公司信息互换机制,促成双边协定之签署;加强与国际组织之合作,拓宽信息获取渠道。通过引入上述监管措施,以期为构建完善的返程投资监管框架提供借鉴,推动中国外国直接投资制度的完善。本文在法律体系、案例研究的基础上,通过对返程投资主要风险的深入分析,指出现有监管问题及可待完善的措施。本文对返程投资监管制度的完善至少含有两大意义:第一,呼吁中国完善其现有法律制度并增加新的监管措施,同时提出了具有执行可行性的建议;第二,呼吁中国与国际组织、离岸金融中心所在国家进行合作,加强信息披露及信息互换,为返程投资的跨境监管奠定夯实的基础。
[Abstract]:However, since the end of the 20th century, international organizations, relevant Chinese institutions and industry insiders have frequently pointed out that a large part of China's FDI stock is returning investment, not genuine FDI. The phenomenon of return investment has become a very common investment behavior in China and even in the world. However, many countries are tacit or indulgent in this behavior, which makes return investment become a way for many illegal elements to carry out illegal activities, and also promotes the occurrence of tax avoidance and other phenomena. Return investment can be divided into two categories: one is non-financing return investment for the purpose of enjoying the treatment of foreign capital, realizing tax avoidance, protecting private property and conducting financial speculation. The former will have a negative impact on China's economic development, financial stability and social equity, while the latter will be conducive to the development of China's capital market, but there is still a need for more comprehensive regulatory measures to regulate and manage. Although the Ministry of Commerce, the State Administration of Foreign Exchange and other departments have promulgated many laws and regulations to regulate the return investment behavior, the phenomenon of return investment contrary to the law is still rampant. When dealing with overseas investment registration, filing procedures and foreign exchange registration, it often conceals information about return investment, or even bypasses the examination and approval procedures directly, which makes it difficult to achieve the original intention of law and policy design, and the return investment actors can not be accurately identified. The confusion makes it more difficult for the relevant authorities to distinguish the return investment subject and its behavior. Therefore, this paper analyzes the causes, operation mode and main risks of the return investment, points out the existing problems in the current supervision system, and puts forward some suggestions on improving the supervision system of the return investment in China based on the experience of foreign countries. On the basis of examination and approval, foreign exchange, tax-related legal system reform and the current effective legal system, this paper discusses the regulatory system of return investment from loose and loose to gradually strict, and points out the defects of the current legal system. It is not as good as other developed countries in the world, so it is necessary to draw lessons from the regulatory systems of developed countries, even international organizations and offshore financial centers themselves on return investment, and introduce the efficient and suitable regulatory methods for China. There is a vacuum of legal supervision on the level of agreement control. In reality, illegal operations and failure cases are frequently happened by using return investment. This paper introduces these cases to derive the real risks leading to a variety of negative results, and puts forward solutions to the problem. This paper first clarifies the relationship between return investment and offshore financial centers and the reasons for realizing return investment through offshore financial centers. It is believed that most offshore financial centers have simple procedures for setting up local registered companies, sufficient tax incentives and loose follow-up supervision, so enterprises and individuals from all over the world have come to offshore financial centers to register. Secondly, this paper discusses the operation mode of return investment, including the new enterprise mode and the merger and acquisition mode, and then analyzes the extension of the operation mode of return investment, including the agreement control mode and the trust mode. This paper focuses on the main risks and regulatory status of return investment, including capital security risk, tax loss risk, information disclosure risk, agreement control compliance risk, etc. By introducing the Chengtong case, the transfer pricing case of a company in Guangzhou, the U.S. Hunshui Company short China concept stocks, Baosheng Iron and Steel listing failure, and other cases. On this basis, this paper discusses the problems in the current regulatory system, including insufficient mandatory disclosure of institutional investors'return investment, lack of follow-up monitoring of individual investors' return investment, and examination of sources of funds. Subsequently, based on the regulatory systems of mainstream countries, international organizations and offshore financial centers on return investment, this paper selects the evolution of attitudes of representative countries and international organizations on return investment, and combines the response of offshore financial centers to international pressures to explore the mainstream international supervision of return investment. Finally, the paper puts forward some suggestions to improve the supervision system of China's return investment, including distinguishing the return investment registration, using capital control standards to determine the nationality of legal persons; regarding the return investment enterprises as domestic enterprises, not enjoying differential treatment; introducing "transparency" review, focusing on monitoring the return investment enterprises; and increasing the sources of funds. We need to review and implement the periodic reporting system, establish an information exchange mechanism for offshore companies to facilitate the signing of bilateral agreements, strengthen cooperation with international organizations and broaden access to information. On the basis of legal system and case study, this paper points out the existing regulatory problems and measures to be improved through in-depth analysis of the main risks of return investment. Secondly, it calls on China to cooperate with international organizations and countries where offshore financial centers are located to strengthen information disclosure and exchange so as to lay a solid foundation for cross-border supervision of return investment.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.295
本文编号：2249033
[Abstract]:However, since the end of the 20th century, international organizations, relevant Chinese institutions and industry insiders have frequently pointed out that a large part of China's FDI stock is returning investment, not genuine FDI. The phenomenon of return investment has become a very common investment behavior in China and even in the world. However, many countries are tacit or indulgent in this behavior, which makes return investment become a way for many illegal elements to carry out illegal activities, and also promotes the occurrence of tax avoidance and other phenomena. Return investment can be divided into two categories: one is non-financing return investment for the purpose of enjoying the treatment of foreign capital, realizing tax avoidance, protecting private property and conducting financial speculation. The former will have a negative impact on China's economic development, financial stability and social equity, while the latter will be conducive to the development of China's capital market, but there is still a need for more comprehensive regulatory measures to regulate and manage. Although the Ministry of Commerce, the State Administration of Foreign Exchange and other departments have promulgated many laws and regulations to regulate the return investment behavior, the phenomenon of return investment contrary to the law is still rampant. When dealing with overseas investment registration, filing procedures and foreign exchange registration, it often conceals information about return investment, or even bypasses the examination and approval procedures directly, which makes it difficult to achieve the original intention of law and policy design, and the return investment actors can not be accurately identified. The confusion makes it more difficult for the relevant authorities to distinguish the return investment subject and its behavior. Therefore, this paper analyzes the causes, operation mode and main risks of the return investment, points out the existing problems in the current supervision system, and puts forward some suggestions on improving the supervision system of the return investment in China based on the experience of foreign countries. On the basis of examination and approval, foreign exchange, tax-related legal system reform and the current effective legal system, this paper discusses the regulatory system of return investment from loose and loose to gradually strict, and points out the defects of the current legal system. It is not as good as other developed countries in the world, so it is necessary to draw lessons from the regulatory systems of developed countries, even international organizations and offshore financial centers themselves on return investment, and introduce the efficient and suitable regulatory methods for China. There is a vacuum of legal supervision on the level of agreement control. In reality, illegal operations and failure cases are frequently happened by using return investment. This paper introduces these cases to derive the real risks leading to a variety of negative results, and puts forward solutions to the problem. This paper first clarifies the relationship between return investment and offshore financial centers and the reasons for realizing return investment through offshore financial centers. It is believed that most offshore financial centers have simple procedures for setting up local registered companies, sufficient tax incentives and loose follow-up supervision, so enterprises and individuals from all over the world have come to offshore financial centers to register. Secondly, this paper discusses the operation mode of return investment, including the new enterprise mode and the merger and acquisition mode, and then analyzes the extension of the operation mode of return investment, including the agreement control mode and the trust mode. This paper focuses on the main risks and regulatory status of return investment, including capital security risk, tax loss risk, information disclosure risk, agreement control compliance risk, etc. By introducing the Chengtong case, the transfer pricing case of a company in Guangzhou, the U.S. Hunshui Company short China concept stocks, Baosheng Iron and Steel listing failure, and other cases. On this basis, this paper discusses the problems in the current regulatory system, including insufficient mandatory disclosure of institutional investors'return investment, lack of follow-up monitoring of individual investors' return investment, and examination of sources of funds. Subsequently, based on the regulatory systems of mainstream countries, international organizations and offshore financial centers on return investment, this paper selects the evolution of attitudes of representative countries and international organizations on return investment, and combines the response of offshore financial centers to international pressures to explore the mainstream international supervision of return investment. Finally, the paper puts forward some suggestions to improve the supervision system of China's return investment, including distinguishing the return investment registration, using capital control standards to determine the nationality of legal persons; regarding the return investment enterprises as domestic enterprises, not enjoying differential treatment; introducing "transparency" review, focusing on monitoring the return investment enterprises; and increasing the sources of funds. We need to review and implement the periodic reporting system, establish an information exchange mechanism for offshore companies to facilitate the signing of bilateral agreements, strengthen cooperation with international organizations and broaden access to information. On the basis of legal system and case study, this paper points out the existing regulatory problems and measures to be improved through in-depth analysis of the main risks of return investment. Secondly, it calls on China to cooperate with international organizations and countries where offshore financial centers are located to strengthen information disclosure and exchange so as to lay a solid foundation for cross-border supervision of return investment.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.295
【参考文献】
相关期刊论文 前3条
1 卜昌平;刘新敏;;离岸公司并购国资企业致使国有资产流失的法律规制——从《反垄断法》的视角分析[J];江西理工大学学报;2008年05期
2 何春燕;离岸公司及其法律规制[J];四川教育学院学报;2005年07期
3 罗强;项秀强;;返程投资“进化论”[J];中国外汇;2011年15期
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