和谐社会“第三域”与中国私募证券投资基金业治理路径

发布时间：2018-06-04 08:48

本文选题：和谐社会 + 第三域　；参考：《西南政法大学》2008年硕士论文

【摘要】： “第三域”是以实现社会公益为目的,与公共权力领域和私人领域并行存在的社会空间。它也被理解为政府和市场经济主体之外社会自治组织。在现代社会治理机制中,它具有政府和市场经济主体不能内涵的功能。几年来,中国全方位展开和谐社会建设,与此同时,民间自发产生的私募证券投资基金已发展壮大,规模已超万亿人民币,且大量主体频繁参与其发起、管理,将其称为“业”实不为过。它的存在和发展既能在诸方面促进中国社会和谐前行,也给和谐社会带来了不少隐患。面对它,为实现它本身及其相关领域的和谐发展,在政府与“第三域”间,是否应主要运用“第三域”对它进行治理,为何应主要运用“第三域”对它进行治理,怎样主要运用“第三域”对它进行治理,便成为本文所作研究期许能够回答的核心问题。本文除引言和结论外分四部分。各部份基本内容如下: 第一部份分两节。第一节首先对本文所指“第三域”予以界明。其次,有所针对地对中西方学界关于“第三域”的研究成果予以介绍,据其研究成果,对“第三域”基本社会功能作了总结和引申。第二节对和谐社会“第三域”建设必要性从历史观、最高层决策、现实社会需要三个唯度进行论证。认为建设和谐社会,就有必要发展“第三域”,有必要在特定社会领域积极培养和发挥其能力。第二部份分两节。第一节是对私募证券投资基金基本问题的研究,分五小节。第一小节是对私募证券投资基金的界定(简称私募基金)。第二小节论述私募基金与公募证券投资基金区别,基于区别认为可在政府监管之外,探索有别于公募证券投资基金的治理路径。第三小节对发达国家私募基金相似金融投资产品相关法制作了考察,认为私募基金是市场经济发展必然产物,发达国家对其相似物的基本态度是豁免登记和直接行政监管,这是我国私募基金国家法制方向。第四小节对私募基金在我国发展史与现状作了考察,认为其在我国形成和发展具有强烈“草根性”,规模已颇为庞大,涉及主体众多,运作方式复杂。这是市场经济“理性人”和市民社会“自由人”共同作用的结果。是探索其治理机制应承认的事实前提。第五小节对我国私募基金法律、政策环境作了考察,认为目前法制简单、滞后,法律、政策、监管环境有待放开。第二节论述私募基金对和谐社会建设影响,分两小节。第一小节从五方面分析私募基金对和谐社会建设正面影响,第二小节从五方面分析私募基金对其建设负面影响。认为既不能使私募基金完全游离于管理之外,又不能对其管之过紧,应探索既能抑制其负面影响,又能维护其发展利益,发挥其正面作用的治理路径。第三部份作为本论(一),研究任务是实现本文理论创新,分两节。第一节在前两部份所作理论和事实铺垫上,提出形成以政府为指导,开展私募基金发起、管理业务的“投融资中间人”的自治组织为中轴,基金的直接参与主体为基础,自治组织管理普通和“重大”私募基金,政府只直接监管“重大私募基金”并通过管理自治组织管理基金的基本治理路径和本文中心论点即在政府与“第三域”间,“主要运用‘第三域'对私募基金业进行治理”。第二节运用商法学价值分析法,从互为辨证的自由、秩序、效益(率)三大价值对基本治理路径和中心论点理性程度进行了思考和分析,分三小节。第一小节首先论述自由与中世纪商人行会商人习惯法的关系。其次,论述行政监管主导性与基金业发展自由和商法自由价值背离。再次,论证现代商法内含商人习惯法,我国私募基金业习惯法能维护行业成员自由利益,能将商法自由价值予以承继。第二小节首先论述自由要受秩序限制,但这种秩序须保障正当自由。其次,论证我国私募基金业“国家商事法权秩序”滞后和构建进程艰难之实际。再其次,针对决策层惯用政策调控私募基金等市场经济微观问题的现象,论述政策不是“国家商事法权秩序”。接着,据“自由秩序原理”和“社会契约理论”,提出构建我国私募基金业“民间商事法权秩序”。最后,论述“民间商事法权秩序”是“国家商事法权秩序”建构和维系的“催化剂”和补充。第三小节首先论述效益(率)是自由和秩序目的。其次,论证中世纪商人行会对效益促进作用。再其次,应用制度经济学“市场-政府双失效”理论论述现代市场经济“第三域”产生必然性。接着,据此理论,从三层面论述行政监管主导性与私募基金市场效益关系。最后,从四层面论述“第三域”治理与私募基金市场效益关系。综合前三部分研究结果,实际上从社会学、政治学、历史学、法学、哲学、经济学等角度,回答了是否应和为何应主要运用“第三域”对私募基金业进行治理。因此,作为本论(二),第四部份研究任务是实现本文制度创新,回答怎样主要运用“第三域”治理私募基金业,分四节。第一节论述我国私募基金业自治机制组织保障,分五小节。第一小节论述以开展私募基金发起、管理业务的“投融资中间人”作为自治机制组织保障切入点原因。第二小节论述不以主体类型不同,而以基金发起和管理行为标准设立相对统一自治管理系统必要性。第三小节论述以应用既有自治组织为原则,新设自治组织为例外的自治系统基本设置方式。第四小节通过对我国大陆各省级地区和部分副省级市、县级以上基层地区同私募基金发起、管理相关各主要类自治组织及其会员考察,提出以证券业自治组织为自治系统主要组织支持,以基金发起、管理业务相关非证券业既有自治组织为辅助组织支持。第五小节首先论述将中国证券业协会(简称“中国证协”)作为全国性私募基金业法定自治组织。其次,论述中国证协在内蒙古之外其它省级地区直接指定法定自治组织。就内蒙古,论述特殊指定方式,包括应考量因素、指定程序(含如何取得合法性)、例外情形。再次,论述中国证协可直接指定深圳、青岛等五副省级市证券业自治组织作为该市法定自治组织,并通过对武汉之外另九个副省级市考察,论述中国证协可在必要时指定证券业或相关非证券业自治组织作为其法定自治组织,副省级市和所属省份自治组织管理权能地域效力相互独立。也对指定方式和限制因素作了论述。最后,通过对我国温州、东莞、中山以及其它部分县级以上基层地区经济、金融业含私募基金业发展现状考察,结合私募基金业发展潜力和我国金融政策指引以及规范民间私募基金必要性,论述省和副省级地区法定自治组织,可在确有必要时,指定基层地区证券业或相关非证券业自治组织作为该地法定自治组织必要性,对指定方式、实体限制因素以及更严格程序限制等方面作了论述。第二节论述私募基金发起、管理主体加入自治组织机制,分二小节。第一小节论述以开展私募基金发起、管理业务的企业及其分支机构工商登记为据确定其自治组织。第二小节首先分析非企业组织和自然人在我国发起、管理的私募基金形式。提出如基金载体需工商登记,以工商登记确定自治组织,如基金载体是常见之不起字号个人合伙,与自然人合论。其次,通过对美国有关私募基金管理人法制和我国私募基金发起、管理自然人正负影响分析,认为从长计宜,在法律和政策上,可允许自然人开展基金发起、管理业务,但在目前有必要将其纳入自治管理,并以其户籍登记确定自治组织。第三节择重要方面,就私募基金业法定自治组织在行业治理中作用作了论述,分三小节。第一小节在八方面强调自治组织对行业和会员发展利益的维护。第二小节在七方面强调对行业成员自律。第三小节就自治组织对会员业务进行规范指引和对外部主体予以辐射作了论述。第四节论述政府对私募基金及其行业自治机制法制规范,分三小节。第一小节论述当前我国治理私募基金业规范性法律文件适当载体。第二小节对规范性法律文件制定途径作论述。第三小节论述规范性法律文件内容。首先论述对基金本身抓大放小,就重要方面作必要规定。其次,就自治机制法律规范提出建议,一方面是对上述自治机制组织保障和基金发起、管理人加入自治组织机制核心思想和内容总结,另一方面是对上述思想和内容的必要补充,以为我国私募基金业自治机制有效运行提供制度供给。综上,本文四部份遵循演绎逻辑基本规律,回答了“是否应”,“为何应”,“怎么做”三个层层递进核心问题,围绕“主要运用‘第三域'对私募基金业进行治理”,从多角度和方面展开了论述,完成了本文以“理论创新”带动“制度创新”的研究任务。但“创新”还不是“完好”,因此笔者勉力为此文,仅完成了对中国私募基金业“第三域”治理机制研究的第一步。
[Abstract]:The "third domain" is a social space which aims at realizing social public welfare and exists in parallel with the field of public power and private sector. It is also understood as a social self-governing organization outside the government and the main body of the market economy. In the modern social governance mechanism, it has the function that the government and the main body of the market economy can not be intension. At the same time, the private equity investment fund, which is spontaneously produced by the folk, has grown and expanded, and the scale has exceeded the trillion yuan. And a large number of subjects are frequently involved in its initiation, management, and it is not too hard to call it "industry". Its existence and development can promote the harmonious advance of Chinese society and bring to a harmonious society in all aspects. In the face of it, in order to realize the harmonious development of its own and its related fields, whether the government and the "third domains" should be mainly used to govern it with the "third domains", why should we mainly use the "third domains" to govern it, and how to use the "third domains" to govern it, so it becomes the study of this article. The core question that is expected to be answered.
In addition to the introduction and conclusion, this article is divided into four parts.
The first section is divided into two sections. First, the first section gives the definition of the "third domains". Secondly, it introduces the research achievements of the "third domains" by the Chinese and Western academics. According to the results of the study, the basic social functions of the "third domains" are summarized and extended. The second section is necessary for the construction of the "third domains" in the harmonious society. From the view of history, the decision of the highest level and the need of the real society, it is necessary to demonstrate the need for three reasons. It is necessary to develop the "third domains" in the construction of a harmonious society. It is necessary to develop and exert its ability in a specific social field.
The second part is divided into two sections. The first section is a study of the basic problems of private equity investment funds. The first section is divided into five sections. The first section is the definition of private equity investment funds (private equity funds). Second sections discuss the difference between private fund and public fund investment fund. Based on the distinction between the government supervision, the exploration is different from the public offering. The third section makes an investigation on the related laws of similar financial investment products of private funds in developed countries. It is considered that private fund is the inevitable product of the development of market economy, and the basic attitude of developed countries to its similar objects is exemption registration and direct administrative supervision, which is the national legal direction of private equity funds in China. Fourth The section examines the development history and present situation of private fund in China. It holds that its formation and development in China has a strong "grassroots", which has a large scale, involving many subjects and complicated operation mode. This is the result of the joint role of "rational man" in the market economy and the "free man" of civil society. It is to explore its governance mechanism. The fifth section makes a survey on the law and policy environment of private equity fund in China. It thinks that the legal system is simple, lagging, law, policy and regulatory environment need to be released. The second section discusses the impact of private fund on the construction of harmonious society, which is divided into two sections. The first section analyses the positive impact of private fund on the construction of harmonious society from five aspects. The second section analyzes the negative impact of private fund on its construction from five aspects. It thinks that the private fund can not be completely free from management and can not be tighten to its management. It should explore the way to prevent its negative effects and maintain its development interests and play its positive role.
The third part as this theory (1), the research task is to realize the theoretical innovation of this article, which is divided into two sections. The first section, in the first two parts of the theory and the facts, put forward the formation of the government as the guidance, the launch of private fund, the management business of the "investment and financing intermediaries" autonomous organization is the central axis, the direct participation of the main body of the fund as the basis, autonomy Organization and management of ordinary and "major" private equity funds, the government only directly supervision of "major private equity funds" and through the management of the basic governance path of the management of self-government organizations and the central argument that the government and the "third fields", "the main use of the 'third fields" for private fund management. The second section uses the value of commercial law. The analysis method, from the three values of the dialectical freedom, order and benefit (rate), thought and analyzed the basic governance path and the central argument rationality. The first section first discussed the relationship between freedom and the customary law of merchant guilds in Medieval merchants. Secondly, the dominance of administrative supervision and the freedom of the development of the fund industry and the commercial law were discussed. Thirdly, the free value of the commercial law is demonstrated in modern commercial law. The customary law of private fund industry in our country can maintain the free interest of the members of the industry and inherit the free value of the commercial law. The second sections first discuss the freedom to be restricted by order, but this order must guarantee the proper freedom. Secondly, to demonstrate the "national business of private fund industry in our country". Second, the policy is not "the order of national commercial legal rights". Then, according to "the principle of free order" and "the theory of social contract", we put forward the construction of the private fund industry of our country "people". In the end, the "civil commercial legal power order" is a "catalyst" and a supplement to the construction and maintenance of "national commercial legal right order". Third sections first discuss the benefit (rate) is the purpose of freedom and order. Secondly, the role of the medieval merchant guild is demonstrated. Secondly, the application of institutional economics "city" The theory of "field government double failure" discusses the inevitability of the "third domains" in modern market economy. Then, according to this theory, the relationship between the dominance of administrative supervision and the benefit of private fund market is discussed from the three level. Finally, the relationship between the governance of "third domains" and the market benefit of private fund is discussed from the four level.
The results of the first three parts of the study, in fact, from the perspectives of sociology, politics, history, law, philosophy and economics, answered whether or not the "third domains" should be used mainly to govern the private fund industry. Therefore, as this theory (two), the fourth part of the research task is to realize the innovation of this system and how to answer the main application. The third domain "manages the private fund industry, which is divided into four sections."
The first section discusses the organization guarantee of private fund autonomy mechanism in China, which is divided into five sections. The first section discusses the reason why the "investment and financing intermediaries" which are launched by private funds and the management of the "investment and financing intermediaries" are the starting points for the organization of the self-government organization. The second sections are not based on the different types of subjects, but the relative standards of fund initiation and management are set up. The necessity of the unified autonomous management system. The third section discusses the basic setting way of the application of the autonomous organization as the principle, the new autonomous organization as an exception. The fourth section manages the major autonomous groups through the administration of the private funds at the provincial level and some sub provincial cities in the mainland of China and the private raising funds at the county level and above the county level. Textile and its members study, proposed that the securities industry autonomous organization as the main organization of the autonomy system support, the fund, management business related non securities industry organizations for the support of the auxiliary organization. Fifth section first discusses the China Securities Association ("China certificate Association") as a national private fund legal autonomy organization. This article discusses the direct nominated statutory self-government organizations in other provinces and regions outside Inner Mongolia. On Inner Mongolia, the special designated methods are discussed, including the consideration of factors, the specified procedures (including how to obtain legitimacy), and the exceptions. Again, the China Securities Association can directly refer to the five provincial security autonomous organizations of Shenzhen and Qingdao as the autonomous organization of the provincial securities industry. The city's statutory self-government organization, and through the inspection of nine other sub provincial cities outside Wuhan, argues that the securities and related non securities autonomous organizations can be designated as their legal autonomous organizations when necessary. The administrative power and energy of the provincial and provincial autonomous organizations are independent of each other. Finally, through the investigation on the current situation of the private fund industry in the economy of Wenzhou, Dongguan, Zhongshan and other parts of the county level and above, the development of private fund industry in the financial industry is investigated. The legal autonomy organizations of provincial and sub provincial areas are discussed in combination with the development potential of the private fund industry and the guidance of our financial policy and the necessity of standardizing the private private placement fund. When it is necessary, it is necessary to designate the securities industry in the grass-roots area or the autonomous organization of non securities industry as the necessity of the legal autonomous organization of the land, and discuss the specified way, the entity restriction factor and the stricter procedural restriction.
The second section discusses the launching of private fund, the management body joins the self-governing organization mechanism, and it is divided into two sections. The first section discusses the launching of private fund, the business registration of the management business and its branch business registration as the self-governing organization. The second section analyses the private fund which is initiated and managed by non enterprise organizations and natural people in our country. In the form of a fund carrier, it is suggested that an industrial and commercial registration should be required to establish an autonomous organization with industrial and commercial registration, such as a fund carrier, which is not a personal partnership and a natural person. Secondly, through the launch of the legal system of private fund managers in the United States and the private fund of our country, the analysis of the positive and negative effects of natural persons is analyzed. In policy, natural persons may be allowed to initiate and manage their businesses, but at present it is necessary to include them in the autonomy management, and to set up autonomous organizations with their household registration.
In the third section, the role of the private fund legal self-government organization in the industry governance is discussed, which is divided into three sections. The first section emphasizes the maintenance of the self-government organization for the development interests of the industry and members in eight aspects. The second section emphasizes the self-discipline for the members of the industry in seven respects. The third section will standardize the business of the self-governing organizations to the members' business. The guidance is discussed with the external subject to be radiated.
The fourth section discusses the government's legal regulation of private fund and its industry autonomy mechanism, which is divided into three sections. The first section discusses the current proper carrier for the normative legal documents of private equity fund management in China. Second sections discuss the ways of formulating normative legal documents. Third sections discuss the content of normative legal documents. First, the foundation of the fund is discussed. On the other hand, it is a necessary supplement to the thought and content of the self-government organization mechanism, and the necessary supplement to the thinking and content mentioned above, and the private fund industry in our country. The effective operation of the autonomous mechanism provides the supply of the system.
To sum up, the four part of this paper, following the basic law of deductive logic, answers the question of "whether to be", "why", "how to do" and "how to do" three layers of core issues, and to "govern the private fund industry with the main use of the third fields", from many angles and aspects, and complete this article with "theoretical innovation" to drive the "system creation". "New" research task. But "innovation" is not "good" yet, so I am trying to do this, only to complete the first step in the study of the "third domain" governance mechanism of the Chinese private fund industry.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：F832.51

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