Qualified investors solve the problem of who to raise from Sunshine Private Equity Fund. In view of the high risk and non-guaranteed nature of Sunshine Private Equity Fund, the requirements for investors' ability to resist risks are very strict. If this problem is not handled properly, it will not only harm the interests of investors, but also the fund sponsors may commit crimes such as illegal fund-raising.
To determine a qualified investor, it is necessary not only to ensure that it can subscribe for more than 6,543,800 yuan in strict accordance with Article 6 of the Measures for the Administration of Collective Funds Trust Plans of Trust Companies and provide corresponding assets or income certificates, but also to require it to declare in the trust contract that it is a natural person, legal person or other organization established according to law, and to meet the qualification requirements of the trustor in this trust contract.
The way of raising funds solves the problems of how to raise funds and how to promote funds for Sunshine Private Equity Fund. According to the provisions of the Securities Law, the standard of public offering is to issue securities to unspecified objects, and the total number of people issuing securities to specific objects exceeds 200. Contrary to the public offering stipulated in the Securities Law, that is, no more than 200 securities are issued to a specific object, it should be a non-public offering.
Therefore, the number of people raised by Sunshine Private Equity Fund shall not exceed 200. The trust contract shall stipulate the upper limit of the total amount of funds to be raised in the trust plan and the number of shares to be issued that meet the above requirements; In addition, the proper meaning that Sunshine Private Equity Fund should not be publicly issued should also include no publicity, no advertising in any form through newspapers, magazines, television, radio, computer networks and other media or through meetings, seminars and other forms, and only one-on-one recommendation to customers is allowed. These are the issues that need attention during the issuance of Sunshine Private Equity Fund.
However, in practice, the funds raised by Sunshine Private Equity Fund are always 100 million yuan, at most one billion yuan, which are sold by banks as agents, which often violates the above provisions. In view of the continuous expansion of the scale of Sunshine Private Equity Fund, we can consider making appropriate amendments to the above-mentioned quantitative restrictions.
Fund custody solves the custody problem of funds paid by investors to subscribe for trust plans. In view of the principle of separation of management right and custody right, the funds raised by the trust plan should be kept by commercial banks with the ability of fund custody. In order to protect the interests of investors to the greatest extent, although there is no direct legal relationship between investors and commercial banks because of the trust plan contract, the trust plan contract should still disclose the entrustment relationship between the trustee and the fund custody bank to investors, and truthfully disclose the charging standards of its entrustment fees to investors.
In the aspect of securities custody, the problem of who will keep the securities invested by the trust plan has been solved. Securities such as stocks invested in the secondary market are of course managed by securities companies. It should be noted here that the securities account operated by Sunshine Private Equity Fund has special requirements and must be an account opened by a trust company and approved by the competent department. Since July 2009, according to the regulations of China Securities Regulatory Commission, trust companies have been unable to open new securities accounts. Only by trading securities through a small number of retained accounts of trust companies, the original stock accounts become precious.
In terms of risk statement, Sunshine Private Equity Fund is a high-risk investment, facing market risks such as policy, economic cycle, interest rate and inflation, as well as operating risks such as trustees and securities brokers, as well as war risks and financial crisis risks. Therefore, the above risks should be disclosed one by one in the trust plan.
The trustee shall state the following risks on the first page of the trust contract:
(1) The trust does not promise the capital preservation or the minimum income, so there is investment risk. In the worst case, the trust income may be zero, and the principal may lose part or all of the principal. Therefore, it is only suitable for qualified investors with strong risk identification, evaluation and tolerance;
(2) The trustor shall subscribe for the trust unit with his own legally owned funds, and shall not illegally raise other people's funds to participate in the trust;
(3) The trustor has fully understood the investment philosophy and investment strategy of this trust, and out of his understanding and trust in this trust, he has voluntarily appointed him as the investment consultant of this trust to provide investment advice for this trust. The trustee shall use the trust property in accordance with the provisions of laws, regulations and trust documents and with reference to the trading suggestions of investment consultants. The investment suggestions and decisions of this trust are made at random according to the situation of the securities market, which cannot guarantee the income of the trust, and all risks arising therefrom shall be borne by the client;
(4) The past performance of trust companies, securities investment trust business personnel, investment consultants and other relevant institutions and personnel does not represent the actual effect of the future operation of this trust product;
(5) Before purchasing this trust, the trustor should read and understand all the clauses about risk disclosure in the trust contract.
In addition, investors should sign a risk awareness statement to ensure that investors are aware of the risks of the products they invest in and voluntarily bear all the consequences caused by the above risks. After the establishment of Sunshine Private Equity Fund, it is faced with the problems of investment direction determination, income distribution, fund governance and information disclosure.
In terms of investment direction, according to the Administrative Measures for Trust Plans of Trust Companies' Collective Funds, Sunshine Private Equity Fund can invest in creditor's rights, real rights and equity. But in practice, Sunshine Private Equity Fund mostly invests in the secondary market of the securities market.
In order to let investors know the use direction, restrictions and use process of the raised funds according to the trading suggestions put forward by the investment consultants, the trustee shall disclose the above contents of the trust plan to the trustor and clearly explain them in the trust plan contract. Generally speaking, Sunshine Private Equity Fund not only invests in the secondary securities market, but also invests in inter-bank bonds, central bank bills, funds and other fields.
In addition to the restrictions of laws and regulations, the investment restrictions of Sunshine Private Equity Fund are as follows:
(1) Without the consent of the trustee, the stock margin trading shall not be conducted. As of the end of 20 12, Sunshine Private Equity Fund has not been approved by the regulatory authorities to invest in stock index futures;
(2) do not invest in st stocks;
(3) Without the consent of the trustee, the investment in the issued shares of a listed company shall not exceed 5% of the total share capital of the listed company;
(4) Unless permitted by relevant laws and regulations and approved by the trustee, the amount invested in a single stock issued by a listed company shall not exceed 30% of the total assets of the trust plan (whichever is lower).
In the distribution of income, any income except subscription fee, management fee of investment consulting company, bank custody fee and brokerage commission shall be owned by the beneficiary. However, in terms of income distribution, there are still differences between the Shenzhen model and the Shanghai model. In the Shenzhen model, the client is the only beneficiary, and the trust plan does not guarantee the minimum income. Investment consulting companies only take a certain proportion of profits as management expenses. However, in the Shanghai model, beneficiary rights are divided into priority beneficiary rights and secondary beneficiary rights; Investors are the priority beneficiaries, and investment consulting companies are the worst beneficiaries. Priority beneficiaries generally receives fixed income; On the basis of preserving priority beneficiaries's principal, the inferior beneficiary will give a small part of the proceeds to priority beneficiaries. Therefore, the Shanghai model belongs to the promised capital preservation type.
According to the Measures for the Administration of Collective Funds Trust Plans of Trust Companies, the client is the only beneficiary. However, in various trust plan contracts, it is common to distinguish between general beneficiaries and specific beneficiaries, and to distinguish between priority beneficiaries and inferior beneficiaries. It is true that investment consulting companies are very important to the profitability of Sunshine Private Equity Fund, and should get the income that matches its smart investment. However, this kind of income statement can be directly defined as management fee (performance commission) without using the reference of beneficiary, and its charging standard and charging time can be clearly defined. In addition, in the Shanghai model, the structured trust plan divides the beneficiaries into priority beneficiaries and inferior beneficiaries, which obviously violates the provisions of the Administrative Measures for Trust Companies' Collective Fund Trust Plans, but the regulatory authorities seem to have hinted at the existence of this model.
In terms of governance structure, how to protect the interests of investors, how to avoid moral hazard in trust legal relationship and insider trading that damages investors are always challenges that Sunshine Private Equity Fund needs to face.
In the Shenzhen model and the Shanghai model, because the trustor, trustee, investment consultant, fund and securities custodian are independent of each other, there are certain constraints in their operation, which is in line with the development direction of fund governance. However, in order to obtain higher income, the trustee still has insider trading behavior. In the Yunnan model, because the trustee and the fund manager are the same person, the principal-agent chain is shortened, which reduces the risk of information asymmetry, but at the same time increases the moral hazard of the trustee and easily damages the interests of investors. This is not the future development direction of Sunshine Private Equity Fund.
In order to effectively safeguard the interests of investors, improve the fund governance structure and avoid the occurrence of moral hazard of trustees and managers, it is necessary to take necessary measures, but it is impossible to completely eliminate moral hazard. However, the probability of moral hazard can be reduced from two aspects. First of all, give full play to the role of the beneficiaries' congress and strengthen supervision from the outside. In the trust plan contract, the functions and powers of the beneficiary's meeting, the way of convening the meeting, the voting procedure of the topic and its legal effect should be clearly stipulated. Important information such as the investment, proportion and income of Sunshine Private Equity Fund shall be regularly disclosed to the beneficiaries' meeting. The beneficiaries' congress has the right to supervise the investment, investment proportion, operation process and whether the measures taken in case of emergency are timely and necessary.
Second, increase the proportion of investment consulting companies with investment, and reduce the principal-agent risk from the inside. Only when the interests of investment advisers and investors are consistent to the greatest extent.
Third, establish a professional risk management team and a long-term risk early warning mechanism to reduce risks.