试论私募证券的转售限制
发布时间：2018-07-31 05:08
【摘要】：改革开放三十多年以来，我国的市场经济快速发展，在此大背景下，以公开发行和交易所挂牌上市为主流的证券市场也得到了迅速发展，与之相比，包括私募证券在内的“非主流”证券活动在中国严格的金融管制之下却长期处于事实与规范之间。尽管立法缺位、监管滞后，私募证券在事实层面上早已得到了长期的发展，经历了从“定向募集”到“准证券非公开发行”再到近几年的私募基金。与私募证券的发源地美国相比，我国立法对于私募证券的发行规定较为详细，但私募证券转售制度还很不完善。私募证券能够很好地解决金融压抑下的企业尤其是中下企业融资难的问题。同时，作为证券的一种，具备流通性是投资者的必然诉求，然而，对其进行转售限制也是十分必要的，监管缺失可能会使得私募证券成为以私募之名为公募之实的工具，同时广大投资者的利益也必将受到损害。因此，我们必须要在保证私募证券流通与限制私募转售之间寻找平衡点，使私募证券的发行既能便利筹资又能保护投资者之利益。 本文从私募证券的基本理论入手，分析私募证券及转售的概念、实践中私募证券的种类。由于我国目前没有建立完善的私募证券转售限制机制，因此笔者简要分析了私募证券转售限制的一般性路径，这构成本文分析私募证券转售限制的基础。之后，笔者总结了美国在私募证券转售限制方面的制度演变及制度经验，并在上述分析的基础之上，提出了完善我国私募证券转售限制机制的路径。 本文共包括引言、正文与结语三个部分，其中正文分为四章： 第一章为私募证券转售概述，分析了私募证券及转售的定义，并结合实践中私募证券不同种类总结了私募证券的分类，同时分析了私募证券转售及限制的必要性。最后探讨了私募证券转售限制模式。因为我国目前没有完善的私募证券转售限制规则，所以笔者简要分析了私募证券转售限制的一般性路径，包括市场、主体规则、交易规则以及信息披露四个方面，下文的分析以上述体例为基础。 第二章是私募证券转售的美国经验介绍。本章首先分析了美国私募证券转售限制的制度演变，在此基础之上，分别从市场、主体规则、转售规则、信息披露等四个方面具体分析了美国的制度经验 第三章是中国私募证券转售限制之检讨。本章从上述四个方面梳理了我国目前散见于各种法律法规规章中关于私募证券转售限制的规定。通过本章分析表明，无论于哪一方面，我国目前私募证券的转售限制都存在立法上的缺失。 第四章是我国私募证券转售限制的完善路径。笔者首先提出，要完善我国私募证券转售限制规则首先需要确立投资者保护与私募证券流通的平衡理念，尤其需要考虑保护投资者的利益；其次，，我国需要完善证券场外交易市场，可考虑以三板市场为主体，建立统一监管的私募证券转售市场，同时这一市场分为一般转售市场与特别转售市场，一般转售市场中更倾向于投资者利益的保护，而特别保护市场中则更加注重市场效率。再次，对于一般市场中的私募证券转售规则，包括主体性规则、持有期间限制、转售数量限制、信息披露等应当更为严格，而特别市场则可以适当放松；最后，应当为金融创新预留空间，未来也可以针对特别种类的私募证券进行特殊规定，同时在这一部分，笔者认为，应当将非自愿性的私募证券“转售”排除在限制制度之外。
[Abstract]:Since the reform and opening up for more than thirty years, the market economy of our country has developed rapidly. Under this background, the stock market, which is the mainstream of public issuance and listing, has also developed rapidly. In contrast, the "non mainstream" securities, including private securities, has long been in fact under the strict financial control of China. In spite of the absence of legislation and the lag of supervision, private securities have long been developed on the factual level, experienced from "directed raise" to "non public issuance of quasi securities" to private equity funds in recent years. Compared with the origin of private securities in the United States, China's legislation has a more detailed regulation on the issuance of private securities. But private securities resale system is not perfect. Private securities can solve the problem of financing under financial repression, especially in middle and lower enterprises. At the same time, as one of the securities, it is necessary for the investors to have the liquidity. However, the restriction of resale is also necessary. The lack of supervision may lead to private placement. Securities are the tools of public offering in the name of private equity, and the interests of the majority of investors are bound to be damaged. Therefore, we must find a balance between the guarantee of the circulation of Private Securities and the restriction of private resale, so that the distribution of private securities can facilitate both financing and protection of the interests of investors.
This paper, starting with the basic theory of private securities, analyzes the concept of Private Securities and resale, and the types of private securities in practice. Because there is no perfect mechanism for the resale of private securities in China at present, the author briefly analyzes the general path of the restrictions on the resale of private securities, which constitutes the analysis of the restrictions on the resale of private securities. After that, the author summarizes the institutional evolution and institutional experience of the restrictions on resale in the United States. On the basis of the above analysis, the author puts forward the way to improve the mechanism of the resale restriction in private securities in China.
This article includes three parts: introduction, main body and conclusion. The text is divided into four chapters.
The first chapter is an overview of private securities resale, analyzes the definition of Private Securities and resale, and summarizes the classification of private securities in different types of private securities in practice. At the same time, it analyzes the necessity of resale and limitation of private securities. Finally, it discusses the restricted mode of private securities resale because there is no perfect private securities transfer at present in China. The limitation rules are sold, so I briefly analyze the general path of the resale restrictions, including four aspects: market, main rules, trading rules and information disclosure. The following analysis is based on the above examples.
The second chapter is an introduction to the American experience in the resale of private securities. This chapter first analyzes the institutional evolution of the restrictions on the resale of private securities in the United States. On this basis, it analyzes the institutional experience of the United States from four aspects, such as the market, the main rules, the resale rules, and the information disclosure.
The third chapter is the review of the restrictions on the resale of private securities in China. This chapter combs the provisions on the restrictions on resale in various laws and regulations from the above four aspects. The analysis shows that, in this chapter, the limitation of the resale of private securities in China is lacking in legislation at present.
The fourth chapter is the perfect path for the resale restriction of private securities in China. First, the author puts forward that in order to perfect the rules of private securities resale in China, we should first establish the balance concept of investor protection and private securities circulation, especially to protect the interests of investors. Secondly, our country needs to improve the stock exchange market, which can be considered. The third board market is the main body to establish a unified and regulated resale market of private securities, which is divided into the general resale market and the special resale market, and the general resale market is more inclined to protect the interests of the investors, while the special protection market pays more attention to the market efficiency. Again, the resale rules of private securities in the general market are resold. It includes the subject rule, the limit of holding, the limit of resale quantity, the information disclosure should be more strict, and the special market can be properly relaxed; finally, it should reserve space for financial innovation, and the special kind of private securities should be specified in the future. At the same time, I think that it should be non voluntary. The "resale" of private equity securities is excluded from the restrictive system.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：F832.51
本文编号：2154505
[Abstract]:Since the reform and opening up for more than thirty years, the market economy of our country has developed rapidly. Under this background, the stock market, which is the mainstream of public issuance and listing, has also developed rapidly. In contrast, the "non mainstream" securities, including private securities, has long been in fact under the strict financial control of China. In spite of the absence of legislation and the lag of supervision, private securities have long been developed on the factual level, experienced from "directed raise" to "non public issuance of quasi securities" to private equity funds in recent years. Compared with the origin of private securities in the United States, China's legislation has a more detailed regulation on the issuance of private securities. But private securities resale system is not perfect. Private securities can solve the problem of financing under financial repression, especially in middle and lower enterprises. At the same time, as one of the securities, it is necessary for the investors to have the liquidity. However, the restriction of resale is also necessary. The lack of supervision may lead to private placement. Securities are the tools of public offering in the name of private equity, and the interests of the majority of investors are bound to be damaged. Therefore, we must find a balance between the guarantee of the circulation of Private Securities and the restriction of private resale, so that the distribution of private securities can facilitate both financing and protection of the interests of investors.
This paper, starting with the basic theory of private securities, analyzes the concept of Private Securities and resale, and the types of private securities in practice. Because there is no perfect mechanism for the resale of private securities in China at present, the author briefly analyzes the general path of the restrictions on the resale of private securities, which constitutes the analysis of the restrictions on the resale of private securities. After that, the author summarizes the institutional evolution and institutional experience of the restrictions on resale in the United States. On the basis of the above analysis, the author puts forward the way to improve the mechanism of the resale restriction in private securities in China.
This article includes three parts: introduction, main body and conclusion. The text is divided into four chapters.
The first chapter is an overview of private securities resale, analyzes the definition of Private Securities and resale, and summarizes the classification of private securities in different types of private securities in practice. At the same time, it analyzes the necessity of resale and limitation of private securities. Finally, it discusses the restricted mode of private securities resale because there is no perfect private securities transfer at present in China. The limitation rules are sold, so I briefly analyze the general path of the resale restrictions, including four aspects: market, main rules, trading rules and information disclosure. The following analysis is based on the above examples.
The second chapter is an introduction to the American experience in the resale of private securities. This chapter first analyzes the institutional evolution of the restrictions on the resale of private securities in the United States. On this basis, it analyzes the institutional experience of the United States from four aspects, such as the market, the main rules, the resale rules, and the information disclosure.
The third chapter is the review of the restrictions on the resale of private securities in China. This chapter combs the provisions on the restrictions on resale in various laws and regulations from the above four aspects. The analysis shows that, in this chapter, the limitation of the resale of private securities in China is lacking in legislation at present.
The fourth chapter is the perfect path for the resale restriction of private securities in China. First, the author puts forward that in order to perfect the rules of private securities resale in China, we should first establish the balance concept of investor protection and private securities circulation, especially to protect the interests of investors. Secondly, our country needs to improve the stock exchange market, which can be considered. The third board market is the main body to establish a unified and regulated resale market of private securities, which is divided into the general resale market and the special resale market, and the general resale market is more inclined to protect the interests of the investors, while the special protection market pays more attention to the market efficiency. Again, the resale rules of private securities in the general market are resold. It includes the subject rule, the limit of holding, the limit of resale quantity, the information disclosure should be more strict, and the special market can be properly relaxed; finally, it should reserve space for financial innovation, and the special kind of private securities should be specified in the future. At the same time, I think that it should be non voluntary. The "resale" of private equity securities is excluded from the restrictive system.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：F832.51
【参考文献】
相关期刊论文 前3条
1 沈朝晖;;公开发行视角下的非公开发行股份转让[J];金融法苑;2009年01期
2 宋晓燕;;证券监管的目标和路径[J];法学研究;2009年06期
3 詹骞;席敏;;我国多层次资本市场体系的构建及完善思路[J];西南科技大学学报(哲学社会科学版);2009年04期
本文编号：2154505
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