First, the background of the formulation of the Measures
The newly revised Securities Investment Fund Law brings the non-public offering of securities investment funds into the scope of adjustment for the first time. According to the authorization of the law, we should formulate corresponding management measures for non-public offering securities investment funds, that is, private placement securities funds. On June 20 13, the Central Office issued a notice clearly assigning the management responsibilities of private equity funds, including venture capital funds, to our Committee, which will be responsible for organizing the formulation of regulatory policies, standards and norms. Accordingly, on the basis of repeated research and demonstration, the Ministry drafted and formed the Provisional Regulations on the Management of Private Investment Funds (Draft) (hereinafter referred to as the Regulations), and after consulting the relevant departments in the State Council, it was reported to the State Council at the beginning of this year. At present, the State Council Legislative Affairs Office is actively handling the process.
The Opinions of the State Council on Further Promoting the Healthy Development of the Capital Market (Guo Fa [2065 438+04] 17No.) issued in May 20 14 (hereinafter referred to as the "Nine Articles of New China") clearly put forward the development of private investment funds, requiring the improvement of equity investment funds, private equity management plans, and private equity management plans in accordance with the principles of functional supervision and moderate supervision. Considering that the promulgation of the Regulations is still a process, in order to meet the regulatory needs of private equity funds and private equity funds, promote the healthy and standardized development of various private equity funds, and implement the nine requirements of the new country, we have studied and drafted the Interim Measures for the Supervision and Management of Private Equity Funds (Draft for Comment) (hereinafter referred to as the "Measures"), which will be promulgated and implemented in the form of departmental regulations of the CSRC.
Two. Main contents of the Measures
Article 41 of the Measures is divided into ten chapters: general provisions, registration and filing, qualified investors, fund raising, investment operation, industry self-discipline, supervision and management, special provisions on venture capital funds, legal responsibilities and supplementary provisions.
(A) on the scope of adjustment
According to the Securities Investment Fund Law, Article 9 of the New China and the provisions of the central notice, and in combination with the regulatory functions of our Association, the Measures include private equity funds and private equity funds, as well as other types of private equity funds that invest in futures, options, works of art, wine and so on in the market. And the investment scope of private equity funds is clearly defined as "including buying and selling stocks, equity, bonds, futures, options, fund shares and others agreed in investment contracts"
In view of the fact that many institutions operating in the form of companies and partnerships engage in businesses similar to private equity funds except contractual private equity funds, the Measures also clarify that "if the assets of companies and partnerships established for the purpose of non-public offering are managed by fund managers or general partners, these Measures shall apply to their investment activities" (Article 2).
In order to implement the unified functional supervision principle established in the Securities Investment Fund Law and the requirements of Article 9 of the New China on improving the supervision standards of various private investment funds according to the functional supervision principle, the Measures also clarify: "These Measures shall apply to securities companies, fund management companies, futures companies and their subsidiaries engaged in private equity fund business."
(2) About registration and filing
In the process of fund manager registration, the Measures require all kinds of private fund managers to apply for registration with the fund industry association and submit basic information in accordance with the relevant regulations of the fund industry association. After the application materials are complete, the fund industry association shall complete the registration formalities in the form of website announcement (Article 7).
In the process of fund filing, considering the differences among private equity funds, private equity funds and venture capital funds in terms of investment objects and operation methods, the Measures require fund managers to indicate the fund types according to the main investment directions of private equity funds; If the entrusted management mode is adopted, the entrusted management agreement shall be submitted. Where the custodian institution is entrusted with the custody of the fund property, it shall also submit an entrustment agreement (Article 8).
In order to prevent institutions from using the registration and filing information for credit enhancement, the Measures stipulate that the registration and filing information published by fund industry associations does not constitute recognition of the investment ability and continuous compliance of private equity fund managers; Not as a guarantee for the safety of fund assets (Article 9).
In order to facilitate the public to know the information of fund managers who have lost their qualifications in time, the Measures require private fund managers to report to the fund industry association within a time limit if they are dissolved, revoked or declared bankrupt according to law, and the fund industry association shall cancel the registration of fund managers in time and make an announcement (Article 10).
(3) Qualified investors
The Measures clarify that private equity funds shall be raised from qualified investors, and the cumulative number of investors in a single private equity fund shall not exceed the specified number stipulated by law (Article 11).
The Measures refer to the standards of overseas qualified investors and combine the actual situation in China, stipulating that qualified investors refer to units and individuals with corresponding risk identification ability and risk-taking ability, and the investment amount of a single private equity fund is not less than 6.5438+0 million yuan and meets the following relevant standards: (654.38+0) Units with net assets of not less than 6.5438+0 million yuan; (2) Personal financial assets are not less than 3 million yuan or the average annual income of individuals in the last three years is not less than 500,000 yuan (Article 12). This standard is higher than the investor standard of fund trust plan, asset management plan of securities companies and asset management plan of specific customers of fund management companies in the market at present, but the minimum investment amount is obviously lower than the minimum subscription amount of a single equity investment fund1/kloc-0 stipulated in the Notice on Promoting the Standardized Development of Equity Investment Enterprises issued in 201year.
The main consideration in formulating the above standards is that if the standards of qualified investors are too low, public investors who do not have the ability to identify and bear risks will be easily involved, which will lead to illegal fund-raising. Because there are double standards of asset size or income level and minimum subscription amount for a single fund, it is more comprehensive to grasp the standards of qualified investors only from the minimum subscription amount for a single fund. Therefore, the standard of the minimum subscription amount of a single fund is not simply based on the excessively high standards of the previous Development and Reform Commission. For individual investors, the "Measures" stipulate from two dimensions: the scale of financial assets and the level of income, which also leaves room for stable and high-yield groups to participate in private equity funds in the future.
In addition, considering that some institutional investors and managers have professional ability to identify and bear risks, the Measures refer to the existing regulations of the domestic asset management industry and overseas experience, and regard four types of investors as qualified investors: First, social security funds, enterprise annuities and charitable funds; The second is the investment plan established according to law and supervised by the financial supervision and management institution of the State Council; Third, private fund managers and their employees who invest in the private funds they manage; Fourth, other investors identified by China Securities Regulatory Commission (Article 13).
(4) About fund raising
The "Measures" make the following provisions on fund raising: First, it is not allowed to raise funds from units and individuals other than qualified investors, and it is not allowed to publicize and promote to unspecified objects through public media, reports, text messages, WeChat, distributing leaflets and posting notices; Second, it is not allowed to promise investors that the investment principal will not be lost or the minimum income will be promised; Third, do a good job in investor suitability management, evaluate investors' risk identification ability and risk-taking ability through questionnaire survey, rate the risk of the fund and explain it to qualified investors; Fourth, if investors are required to truthfully fill in the risk questionnaire, truthfully promise assets or income, and provide false information, they should bear corresponding responsibilities; Fifth, investors should ensure that the sources of entrusted funds are legal, and may not collect other people's funds to invest in private equity funds (Articles 14 to 19).
(V) About investment and operation
The Measures require fund managers of private equity securities to sign fund contracts, articles of association or partnership agreements when raising funds. The fund contract shall conform to the necessary contents stipulated in the Securities Investment Fund Law; For other types of private equity funds, the fund contract shall also refer to the relevant provisions of the Securities Investment Fund Law and clearly stipulate the rights, obligations and related matters of all parties (Article 20).
In terms of fund custody, according to the characteristics of private equity funds and the provisions of the Securities Investment Fund Law, the Measures do not force private equity funds to make custody arrangements. However, in order to ensure the safety of the fund property, it is required that the private equity fund property should be managed by the fund custodian unless otherwise agreed in the fund contract; If custody is not conducted, the institutional measures and dispute settlement mechanism for ensuring the property safety of private equity funds shall be clearly defined in the fund contract (Article 21).
In the investment link, in order to effectively prevent conflicts of interest, the Measures stipulate that private fund managers should establish independent investment decision-making processes and firewall systems between different funds (Article 22).
In order to effectively protect the rights and interests of investors, the Measures put forward corresponding normative requirements for private fund managers, custodians, sales organizations and other private service institutions and their employees to engage in private fund business, and listed the prohibited acts (Article 23).
In terms of information disclosure, the Measures require truthful disclosure of important information that may affect the legitimate rights and interests of investors, such as fund investment, assets and liabilities, investment income distribution, expenses and performance awards undertaken by the fund, and possible conflicts of interest, and shall not conceal or provide false information, and stipulate that information disclosure rules shall be formulated separately by the fund industry association (Article 24).
In terms of information submission, the Measures require private fund managers to fill in and regularly update relevant information in accordance with the regulations of fund industry associations. Considering that hedge funds and M&A funds often use leverage, which may lead to systemic financial risks, private equity funds are required to report leverage. Major events shall be reported to the fund industry association within 65,438+00 working days, and the annual financial report and the basic situation of the annual investment and operation of private equity funds under management shall be submitted to the fund industry association within the specified time (Article 25).
In addition, it also provides for the preservation of important information (Article 26).
(6) On industry self-discipline.
In order to speed up the establishment of industry self-discipline mechanism, the Measures have made a series of provisions on industry self-discipline: First, it is stipulated that fund industry associations should establish registration and filing information systems. In view of the relatively sensitive information of private equity funds, the Measures require fund industry associations to keep the information of fund managers and the funds they manage strictly confidential (Article 27). Second, establish an information sharing mechanism with the China Securities Regulatory Commission, its dispatched offices and other relevant institutions (Article 28). The third is to stipulate the functions and powers of fund industry associations in formulating rules, practicing inspection and punishment (Article 29). The fourth is to establish a complaint handling mechanism to mediate disputes (Article 30).
(7) About supervision and management
In terms of supervision and inspection, the Measures stipulate that the CSRC and its dispatched offices shall conduct statistical monitoring and inspection on the private placement business of relevant institutions and have the right to take measures according to law (Article 31).
In terms of integrity management, the Measures stipulate that the CSRC will record the integrity information of private fund managers and their employees in the integrity file database of the securities and futures market; According to the credit status of private fund managers, differentiated classified supervision shall be implemented (Article 32).
In terms of administrative supervision measures, the Measures stipulate that the CSRC and its dispatched offices may take administrative supervision measures such as ordering corrections, supervising conversations, issuing warning letters, publicly condemning illegal private equity fund managers, private equity fund custodians, private equity fund sales organizations and their employees (Article 33).
(8) Special provisions on venture capital funds
Venture capital fund is a special kind of equity investment fund. Because it mainly invests in small and micro enterprises, which belongs to the field of market failure, all countries in the world have passed special legislation, on the one hand, to clarify the fiscal and taxation support policies, on the other hand, to supervise and guide its investment fields to ensure the realization of policy objectives. For example, on 20 10, the United States issued rules on 20 1 1 after bringing private equity funds under unified legislative supervision to implement differentiated supervision on venture capital funds. 20 1 1 the European union issued the directive for managers of alternative investment funds, and in April of 20 13, it specially issued the management rules of venture capital funds.
The "Measures" draw lessons from international experience and make special provisions on the special chapter of venture capital funds: first, define venture capital funds with reference to the internationally accepted definition and the Interim Measures for the Administration of Venture Capital Enterprises jointly issued by ten ministries and commissions in 2005; Second, it is stipulated to encourage and guide venture capital funds to invest in small and micro enterprises in the initial stage of entrepreneurship, and from the perspective of connecting the established venture capital policy support mechanism, it is stipulated that the investment scope of venture capital funds enjoying national fiscal and taxation support policies should comply with relevant state regulations; Third, it is clear that the fund industry association will implement differentiated industry self-discipline and membership services for venture capital funds; Fourth, it is clear that the CSRC adopts differentiated supervision and management on venture capital funds in terms of investment direction inspection, which is different from other private equity funds and provides convenient services for venture capital funds in terms of opening accounts, issuing transactions and investment withdrawal (Articles 34 to 37).
For equity funds other than venture capital funds, because they have been fully and effectively regulated by the market, the international practice is to leave them to the market for supervision. The main purpose of the government's necessary legal supervision is to prevent illegal fund-raising, interest transfer and systemic financial risks caused by excessive use of leverage. Although there are differences in investment operation and risk control mechanism of other private equity funds except venture capital funds and private equity funds, these differences are the result of spontaneous formation of the market, and the government should not intervene artificially. Therefore, countries around the world do not distinguish between private equity funds and private equity funds when legislating for private equity funds.
Considering that the Measures, as a departmental regulation, cannot stipulate policies and measures to promote the development of private equity funds and preferential tax policies for venture capital funds and other related contents related to the responsibilities of other departments, the CSRC plans to communicate with relevant departments separately to promote the policies and measures to promote the healthy development of private equity funds as soon as possible.
(9) About legal liability
Considering that the adjustment scope of the Measures covers all kinds of private equity funds, according to the general characteristics of all kinds of private equity funds, the Measures clarify the corresponding punishment measures within the authority of departmental rules and regulations. In violation of the provisions of the Measures and the circumstances are serious, measures can be taken to prohibit the relevant responsible personnel from entering the market (Articles 38 to 39). For private equity securities funds, in view of the relevant penalties stipulated in the Securities Investment Fund Law, the Measures are particularly clear: managers of private equity securities funds and their employees who violate the relevant provisions of the Securities Investment Fund Law shall be punished in accordance with the relevant provisions of the Securities Investment Fund Law (Article 40).
Three. With regard to the implementation of measures
According to the principle of "the law is not retroactive", the investment operation of private equity funds should be carried out in accordance with the original fund contract before the implementation of the Measures; The investment and operation of private equity funds after the implementation of the Measures shall be implemented in accordance with the provisions of the Measures.