股权投资基金募集法律制度研究
发布时间：2018-07-28 16:39
【摘要】：股权投资是一种投资领域限于非公开交易企业股权的投资行为。股权投资在成功募集股权资本后,以盈利为目的,以未上市企业股权(包括上市公司非公开募集的股权)为主要投资对象,由股权投资专门人才负责股权投资管理,在约定时间内选择适当时机退出完成获利。股权投资基金作为连结金融资本与实体企业的纽带,是一种功能特殊的创新性投资工具,它能将具备投资需求的金融资本配置于最具潜力和生产效率的那部分实体企业,从而有效解决企业融资比例不协调这一困境,促进我国的资本市场的成熟,降低金融风险。 股权投资基金涉及的法律问题纷繁复杂,本文取其中与股权投资行业结合最为紧密的一环,即基金募集法律问题进行展开,其中涉及的法律问题至少包括基金组织形式、基金参与者的规制、基金不同募集方式面临的不同法律监管、基金税收法律制度等重要问题。 股权投资(Private Equity)在中国存在若干种不同译法,而最佳译法应为“股权投资”。股权投资是对“非公开交易企业股权”的投资行为,这也是它区别于其他投资基金的本质特征。包括中国在内的大陆法系国家的股权投资活动是一种典型的商事委托代理法律关系。股权投资行为作为一种典型的商事代理行为,其除了具备民事代理一些主要特征之外,更多地体现了商事代理的特征。 本文从投资人安全和收益保障、投资人和管理人的角色定位、利润和亏损的承担方式、组织结构成本、适应股权投资行业的行业规律、获取资本的便捷程度等六个方面对四类基金组织形态即自我管理型公司制、委托管理型公司制、信托制与有限合伙制股权投资基金进行了全面比较,并得出结论：在中国法律框架下,有限合伙制从总体上优于公司制和信托制,它更好地解决了投资人安全和收益保障、投资人和管理人角色定位、管理人激励约束、组织结构成本最优等一系列核心问题,更为符合股权投资基金行业的内在需求；也正缘于此,有限合伙制得以在国际范围内成为股权投资基金的主流模式。 合格投资者和基金管理人是股权投资基金法律规制的关键。股权投资基金,尤其是私募股权投资基金问题的症结就在于基金参与主体,或者说,把合格投资者以及基金管理人的法律规制做到科学合理,私募股权投资基金的大部分问题均可得到解决。合格投资者的立法思路,可以将投资者净资产标准与资产规模相结合,并定期审视其资产变化情况作出动态调整,放弃我国现有的静态出资门槛制度。针对股权投资基金管理人的规制,本文认为基金管理人应当拥有一定数量具有专业资质的从业人员,并从必要条件与限制条件两方面对基金管理人的从业人员进行约束要求：将基金管理人的净资产与其资产管理规模相挂钩,保持风险可控,基金管理人还应当具备完善的内部治理结构。 私募股权投资基金具有非公开性、募集对象具有特定性等法律特征,私募股权投资基金的立法应当抓紧制定统一的《投资基金法》,抓住基金参与主体比强调基金投资方向更为重要,只要科学合理地规范好合格投资者与基金管理人,就可以解决私募股权投资基金的大部分问题,而基金投资方向,则可以放手交由市场自由约定。对于私募股权投资基金的募集,要严格限制私募基金的销售渠道和销售方式,应规定私募对象必须是特定的,且为具备一定门槛要求的合格投资者,否则很容易使得投资风险向社会扩散,影响社会经济秩序的稳定。对于投资者人数的统计可采用累计制,以任意6个月为周期,限制基金发行对象的合并计算不得超过200人,法人或者依法成立的其他组织的投资者数量不受限制,同时,加强对私募所得资金的监管。 公开募集股权投资基金的出现代表了行业的最新趋势。随着黑石、KKR、凯雷等一批股权投资国际巨头纷纷走向公开上市,公众心目中的“私募”股权投资基金的传统印象再一次被颠覆。公开募集股权投资基金的模式,至少包括基金上市、管理机构上市以及基金与管理机构混同上市三种类型。随着全球范围内股权投资基金及管理机构上市的规模化、常态化,最终促成了标准普尔上市PE股权指数的建立。由于各国企业组织形态立法不同,因此各国上市股权投资机构组织形式选择呈多元化态势,没有表现出明显的组织形式偏好。从上市动机分析,股权投资机构更多是为了应对激烈竞争、留住核心员工,完成高管套现、募集业务资金等商业目的。中国曾出现过股权投资机构上市的雏形,但目前资本市场更倾向于新设子公司模式从事股权投资活动。中国股权投资机构上市面临的法律问题有：合伙制股权投资企业不能成为上市公司；公司制普通合伙人不可直接作为上市主体；国有基金管理机构不能成为普通合伙人；信息披露缺乏统一标准；现行会计计价方法会抑制早期企业投资。在对股权投资企业上市问题有了全面深刻认识之后,为更好发挥股权投资基金在促进经济机构调整、产业转型升级方面的独特作用,应对现行相关法律制度做系统性的修改和调整。 税收问题是在设立股权投资基金时必须要考虑的问题,根据美国的相关经济数据,包括资本利得税在内的税收政策的变化一直是影响股权投资的重要因素,本文从内资公司制股权投资基金、内资有限合伙制股权投资基金以及外资股权投资基金三大板块详细讨论了中国当前股权投资基金税收制度,并提出了梳理股权投资行业税政,加大对中早期创投基金税收优惠力度的立法建议。 完善我国股权投资募集法律制度,可以从以下几方面入手：加快股权投资基金的立法步伐,酌情制定统一的《投资基金法》；对各类组织形式的基金尽可能给予同等法律待遇；建立合格投资者制度,注重对管理人规范和引导；允许股权投资基金通过公开渠道募集资金；梳理股权投资行业税收政策,加大对中早期创投基金税收优惠力度。
[Abstract]:Equity investment is a kind of investment behavior that is limited to the equity of non publicly traded enterprises. After the equity investment is successfully raised, the equity investment is aimed at profit, and the non listed company shares (including the non publicly raised shares of the listed company) as the main investment object, the equity investment specialized personnel are responsible for the management of equity investment, and the agreement is agreed upon. The equity investment fund, as a link between financial capital and entity enterprises, is a special and innovative investment tool. It can allocate the financial capital with the investment demand to the most potential and productive part of the real enterprise, so as to effectively solve the proportion of enterprise financing. Coordinate this dilemma, promote the maturity of China's capital market and reduce financial risks.
The legal problems involved in the equity investment fund are complicated. This article takes one of the most closely integrated links with the equity investment industry, that is, the issue of the fund raising law. The legal issues involved include at least the form of the fund organization, the regulation of the fund participants, the different legal supervision of the fund raising ways, and the fund. The legal system of Taxation and other important issues.
Private Equity has a number of different translation methods in China, and the best translation method should be "equity investment". Equity investment is an investment behavior of "non public trading enterprise equity", which is also the essential feature that distinguishes it from other investment funds. The equity investment activities of the continental law countries, including China, are a kind of code. As a typical commercial agent, the behavior of equity investment, as a typical commercial agent, embodies the characteristics of commercial agent in addition to some main characteristics of civil agency.
From the six aspects of the investor's security and income security, the role of investors and managers, the way of profit and loss, the organizational structure cost, the industry law of the equity investment industry and the convenience of obtaining the capital, the four types of fund organization, namely, self-management company system, entrustment management company system, trust system, etc. This paper makes a comprehensive comparison with the limited partnership equity investment fund, and draws a conclusion that under the Chinese legal framework, the limited partnership system is better than the company system and the trust system in general. It can better solve the investor's security and benefit guarantee, the investor and the manager's role positioning, the management of human motivation and the organization structure cost. The core issues are more in line with the internal demand of the equity investment fund industry, which is why the limited partnership has become the mainstream of the equity investment fund in the international scope.
The key to the legal regulation of the equity investment fund is the qualified investor and the fund manager. The crux of the equity investment fund, especially the private equity investment fund, lies in the participation of the fund, or the legal regulation of the qualified investors and the fund managers is scientific and reasonable, and most of the problems of the private equity fund are all It can be solved. The legislative ideas of qualified investors can combine the standard of net assets of investors with the scale of assets, and regularly examine the dynamic adjustment of their assets change and give up the existing static investment threshold system in our country. In view of the regulation of the manager of equity investment fund, this paper thinks that the fund manager should have a certain number. The practitioners with professional qualifications are required to restrict the employees of fund managers from the two aspects of necessary conditions and restrictions: linking the net assets of the fund manager to the scale of the asset management, keeping the risk controllable, and the fund manager should also have the internal governance structure of the complete good.
The private equity fund has the characteristics of non - disclosure, the object of the collection is specific and other legal characteristics. The legislation of private equity fund should make the unified < investment fund law >. It is more important to seize the participation of the fund than to emphasize the investment direction of the fund. As long as it is scientific and reasonable to standardize the qualified investors and fund managers, In order to solve most of the problems of private equity fund, and the direction of investment in the fund, we can give the market free agreement. For the collection of private equity funds, we should strictly limit the marketing channels and sales methods of private equity funds. Otherwise, it is easy to make the investment risk spread to the society and affect the stability of the social and economic order. The statistics of the number of investors can be used in the cumulative system of the number of investors for any 6 months, and the combined calculation of the subject of the limitation of the fund shall not exceed 200, and the number of investors in the legal person or other organizations established by law is not limited, at the same time, Strengthen the supervision of private equity funds.
The emergence of public equity investment funds represents the latest trend in the industry. With Blackstone, KKR, Carlyle, and other international giants, the traditional impression of private equity investment funds in the public is once again subverted. There are three types of listing of management institutions and mutual listing of funds and management institutions. With the scale and normalization of equity investment funds and management institutions listed on the global scale, the PE stock index of standard & Poor's listing is finally established. From the market motivation analysis, the equity investment institutions are more to cope with the fierce competition, retain the core staff, complete the executive cash and raise business funds and other commercial purposes. China has appeared the embryonic form of equity investment institutions, but the current capital market is more inclined. The legal problems facing the listing of Chinese equity investment institutions are: partnership equity investment enterprises can not become listed companies; the general partners of the company system can not be directly listed as the main body; the state-owned fund management agencies can not become ordinary partners; information disclosure is lack of unified standard. The current accounting valuation method will inhibit the early enterprise investment. After a comprehensive and profound understanding of the issue of equity investment enterprise listing, the unique role of the equity investment fund in promoting the adjustment of economic institutions and upgrading the industrial transformation should be made better, and systematic revision and adjustment should be made to the current relevant legal system.
The issue of tax is a matter to be considered when setting up an equity investment fund. According to the related economic data of the United States, the change of tax policy, including the capital gains tax, has been an important factor affecting the equity investment. This article from the domestic capital company ownership investment fund, the Limited partnership equity investment fund and the foreign capital stock. The three major sectors of the investment fund discussed the current tax system of China's equity investment fund in detail, and put forward the legislative proposals for combing the tax administration of the equity investment industry and increasing the tax preferences of the early venture capital fund.
To improve the legal system of equity investment raising in China, we can start from the following aspects: speed up the legislative steps of the equity investment fund, formulate a unified "investment fund law" as appropriate, give equal legal treatment to the funds of all kinds of organizational forms, establish a system of qualified investors, pay attention to the regulation and guidance of the managers, and allow the stock right. Investment funds raise funds through open channels, comb the tax policy of equity investment industry, and increase tax preferences for early and medium venture capital funds.
【学位授予单位】：南京大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D922.287
本文编号：2150910
[Abstract]:Equity investment is a kind of investment behavior that is limited to the equity of non publicly traded enterprises. After the equity investment is successfully raised, the equity investment is aimed at profit, and the non listed company shares (including the non publicly raised shares of the listed company) as the main investment object, the equity investment specialized personnel are responsible for the management of equity investment, and the agreement is agreed upon. The equity investment fund, as a link between financial capital and entity enterprises, is a special and innovative investment tool. It can allocate the financial capital with the investment demand to the most potential and productive part of the real enterprise, so as to effectively solve the proportion of enterprise financing. Coordinate this dilemma, promote the maturity of China's capital market and reduce financial risks.
The legal problems involved in the equity investment fund are complicated. This article takes one of the most closely integrated links with the equity investment industry, that is, the issue of the fund raising law. The legal issues involved include at least the form of the fund organization, the regulation of the fund participants, the different legal supervision of the fund raising ways, and the fund. The legal system of Taxation and other important issues.
Private Equity has a number of different translation methods in China, and the best translation method should be "equity investment". Equity investment is an investment behavior of "non public trading enterprise equity", which is also the essential feature that distinguishes it from other investment funds. The equity investment activities of the continental law countries, including China, are a kind of code. As a typical commercial agent, the behavior of equity investment, as a typical commercial agent, embodies the characteristics of commercial agent in addition to some main characteristics of civil agency.
From the six aspects of the investor's security and income security, the role of investors and managers, the way of profit and loss, the organizational structure cost, the industry law of the equity investment industry and the convenience of obtaining the capital, the four types of fund organization, namely, self-management company system, entrustment management company system, trust system, etc. This paper makes a comprehensive comparison with the limited partnership equity investment fund, and draws a conclusion that under the Chinese legal framework, the limited partnership system is better than the company system and the trust system in general. It can better solve the investor's security and benefit guarantee, the investor and the manager's role positioning, the management of human motivation and the organization structure cost. The core issues are more in line with the internal demand of the equity investment fund industry, which is why the limited partnership has become the mainstream of the equity investment fund in the international scope.
The key to the legal regulation of the equity investment fund is the qualified investor and the fund manager. The crux of the equity investment fund, especially the private equity investment fund, lies in the participation of the fund, or the legal regulation of the qualified investors and the fund managers is scientific and reasonable, and most of the problems of the private equity fund are all It can be solved. The legislative ideas of qualified investors can combine the standard of net assets of investors with the scale of assets, and regularly examine the dynamic adjustment of their assets change and give up the existing static investment threshold system in our country. In view of the regulation of the manager of equity investment fund, this paper thinks that the fund manager should have a certain number. The practitioners with professional qualifications are required to restrict the employees of fund managers from the two aspects of necessary conditions and restrictions: linking the net assets of the fund manager to the scale of the asset management, keeping the risk controllable, and the fund manager should also have the internal governance structure of the complete good.
The private equity fund has the characteristics of non - disclosure, the object of the collection is specific and other legal characteristics. The legislation of private equity fund should make the unified < investment fund law >. It is more important to seize the participation of the fund than to emphasize the investment direction of the fund. As long as it is scientific and reasonable to standardize the qualified investors and fund managers, In order to solve most of the problems of private equity fund, and the direction of investment in the fund, we can give the market free agreement. For the collection of private equity funds, we should strictly limit the marketing channels and sales methods of private equity funds. Otherwise, it is easy to make the investment risk spread to the society and affect the stability of the social and economic order. The statistics of the number of investors can be used in the cumulative system of the number of investors for any 6 months, and the combined calculation of the subject of the limitation of the fund shall not exceed 200, and the number of investors in the legal person or other organizations established by law is not limited, at the same time, Strengthen the supervision of private equity funds.
The emergence of public equity investment funds represents the latest trend in the industry. With Blackstone, KKR, Carlyle, and other international giants, the traditional impression of private equity investment funds in the public is once again subverted. There are three types of listing of management institutions and mutual listing of funds and management institutions. With the scale and normalization of equity investment funds and management institutions listed on the global scale, the PE stock index of standard & Poor's listing is finally established. From the market motivation analysis, the equity investment institutions are more to cope with the fierce competition, retain the core staff, complete the executive cash and raise business funds and other commercial purposes. China has appeared the embryonic form of equity investment institutions, but the current capital market is more inclined. The legal problems facing the listing of Chinese equity investment institutions are: partnership equity investment enterprises can not become listed companies; the general partners of the company system can not be directly listed as the main body; the state-owned fund management agencies can not become ordinary partners; information disclosure is lack of unified standard. The current accounting valuation method will inhibit the early enterprise investment. After a comprehensive and profound understanding of the issue of equity investment enterprise listing, the unique role of the equity investment fund in promoting the adjustment of economic institutions and upgrading the industrial transformation should be made better, and systematic revision and adjustment should be made to the current relevant legal system.
The issue of tax is a matter to be considered when setting up an equity investment fund. According to the related economic data of the United States, the change of tax policy, including the capital gains tax, has been an important factor affecting the equity investment. This article from the domestic capital company ownership investment fund, the Limited partnership equity investment fund and the foreign capital stock. The three major sectors of the investment fund discussed the current tax system of China's equity investment fund in detail, and put forward the legislative proposals for combing the tax administration of the equity investment industry and increasing the tax preferences of the early venture capital fund.
To improve the legal system of equity investment raising in China, we can start from the following aspects: speed up the legislative steps of the equity investment fund, formulate a unified "investment fund law" as appropriate, give equal legal treatment to the funds of all kinds of organizational forms, establish a system of qualified investors, pay attention to the regulation and guidance of the managers, and allow the stock right. Investment funds raise funds through open channels, comb the tax policy of equity investment industry, and increase tax preferences for early and medium venture capital funds.
【学位授予单位】：南京大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D922.287
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