There is no direct and clear definition of "private equity fund" in the relevant laws of the United States, and there is no direct regulation. American law mainly regulates "private placement fund" in the context of China by judging "private placement behavior" and obtaining "exemption from registration". For the exemption of private placement, American law mainly requires three aspects: the number of investors, the qualification restriction of investors and the way of private placement. In terms of the number of investors and the qualifications of investors, initially, the Federal Securities and Exchange Commission (SEC) was based on the number of fundraisers. In the sexual opinion of 1935, the SEC believes that under normal circumstances, issuing securities to less than 35 people does not constitute a public offering and enjoys registration exemption. However, in 1953, when hearing the case of SEC v. Ralston Purina Co, the Supreme Court of the United States pointed out that judging private placement must stand at the height of the legislative purpose of securities law. Exemption from registration is "to promote the full disclosure of information to protect investors and enable them to make investment decisions on the basis of mastering information". Exempted transactions refer to those transactions that do not actually need to be protected by the securities registration system. Therefore, "whether to use the private placement system depends on whether the issuer needs the protection of the securities law". When applying for exemption from registration, the number of issuers is not the decisive factor, and comprehensive factors should be considered. (1) Number of issuers and buyers and their relationship with issuers; (2) The number of issuing units; (3) the scale of issuance. (4) the mode of issuance; (5) Whether investors are mature. Subsequently, the US Securities Regulatory Commission promulgated Regulation D, according to Rule 506 of Article D, only two types of investors are eligible to subscribe for privately issued securities.
Americans have also experienced a process from simple to complex, from shallow to deep. Initially, Article 4 (2) of the Securities Law of 1933 stipulated that the so-called private placement means that only "transactions that do not involve the public issuer" can be exempted from registration. However, because this provision is too principled, it does not solve the problem of "not involving public offering". During the period of 1935, the director of CSRC expressed his opinions on the elements of private placement. According to this opinion, whether the issuance involves public offering can not only depend on one factor, but also consider the overall environment including the relationship between the underwriter and the issuer, as well as the nature, mode, scale, scope and types of the issuance. However, due to the complex conditions involved and the low efficiency of system design, this opinion is not operational. In order to simplify the requirements and improve the approval rate of private placement of securities, the United States also stipulated in 1982 the criteria for the identification of private placement in Article 506 of Regulation D:
The number of buyers (non-offerees) of any offering (including private offering) in the 1.506 rule shall not exceed 35. 2. The above-mentioned buyer does not include qualified investors, but only refers to the person who himself or his agent has knowledge and experience in finance and commerce, can evaluate the feasibility and risk of the investment plan, or the issuer has reasonable reasons to believe that the buyer has this ability when selling. Such people are called mature buyers or representatives. 3. The issuer shall provide sufficient enterprise content information to the acquirer within a reasonable time before selling the securities. 4. It is forbidden for issuers or agents to engage in advertising or persuasion activities during the recruitment period, including meetings and seminars. 5. The issuer shall take reasonable and prudent measures to ensure that the securities purchaser complies with the resale restrictions. 6. Where an issuer enjoys exemption according to law, it shall submit five notices to the Securities and Exchange Commission in the form of Form D within 15 days from the date of the first sale of securities. In practice, in order to avoid the obligation of public offering, the issuer may divide public offering into multiple private offerings. Therefore, the SEC has determined the rules of "consolidated calculation" and put forward five factors that must be considered in consolidated calculation according to the specific situation in "Rule 502". Whether 1. belongs to the same financial plan; 2. Whether the same securities are involved; 3. Whether at the same time or at short intervals; 4. Whether to obtain similar consideration; 5. Is it for the same purpose?
Regarding the mode of information dissemination, Article 502 of Regulation D stipulates that private placement is prohibited from publishing the following forms of advertisements: 1. Carry out any form of general advertising in any newspaper, magazine and similar media, as well as through television, radio and computer communication; 2 seminars or other meetings held through calls or advertisements. At the same time, it also stipulates that if one of the buyers is a unqualified investor, the securities issuer shall disclose some information to all buyers, but if all buyers are qualified investors, it is not required to provide some information to any buyer.
American law has no strict qualification restrictions on the sponsors of private equity funds. The sponsors can be natural persons or various legal persons. The only restriction is that the promoters, the main members of the promoters, must not commit fraud or be ordered by the Securities and Exchange Commission not to become promoters.
In terms of organizational form, in the United States, private equity funds generally implement limited partnership. Limited partnership private equity fund organization form, the promoter is the general partner and the investor is the limited partner. Legally, limited partners bear legal liabilities limited to the amount of capital contribution, while general partners bear unlimited legal liabilities. Usually, the manager of the fund is the general partner. In the United States, there are also private equity funds organized as companies.
Due to the problem of "double taxation", most sponsors of corporate private equity funds will choose to register their companies in States with lower tax rates, and some overseas companies will also be set up as fund organizations. Depending on the scope or direction of investment, sponsors often take the British Virgin Islands, Cayman Islands and even some unknown countries as their registration places. Due to the adoption of corporate system, private equity funds must face higher tax and management costs while obtaining legal forms, and the procedures for changing investors are complicated. Therefore, there are not many private equity funds in this form. Another common form of American private equity organizations is trust-based contractual funds. Contractual private equity funds are generally monopolized by trust companies with specific qualifications. At the same time, trust companies are generally not responsible for fund management, but entrust special fund managers, who charge management fees and performance commissions. Therefore, if the private equity fund wants to adopt the trust method, it must entrust the trust company to raise funds by selling the trust share of the fund, and then the private equity fund manager will sign a contract with the trust company for management.
(B) the legal supervision of private equity funds in the UK
The "private fund" in Britain mainly refers to the "unregulated collective investment plan", that is, all other collective investment plans that are not issued to the general public in Britain except the regulated collective investment plan, and also refer to investment plans that are not subject to the provisions of the Financial Services and Markets Act 2000 (1). The Financial Services and Markets Act of 2000 defines the promoters and managers of collective investment plans as "authorized persons" and "persons exempted by the Ministry of Finance", and stipulates in Articles 2 1 and 238 that these persons shall not invite others to participate in investment activities or collective investment plans unless otherwise stipulated (exempted).
The supervision of private equity funds in Britain mainly adopts the mode of industry self-discipline. In Britain, there is no legislation specifically for private equity funds, which mainly relies on some relevant laws and regulations to manage the market, and participants are self-disciplined. The unified financial services authority (FAS) supervises the financial industry. Under the background of China, the regulation of private equity funds is mainly based on Financial Services Law 1986, Financial Services and Markets Law 2000, Financial Promotion Regulation 200 1 and Collective Investment (Exemption) Initiation Regulation 200 1. The regulatory principles of "private placement of private equity funds" in Britain are mainly embodied in the ways of "qualified buyers" and "communication and advertising". In the British "200 1 Collective Investment Initiation (Exemption) Regulation", the "unregulated collective investment plan" is restricted from the perspective of information dissemination.
First of all, it is understood that "communication" refers to "the licensee invites or requests to join an unregulated plan in the course of business", which is divided into "communication with someone" and "communication with someone". "Real-time communication" and "non-real-time communication"; Among them, "real-time communication" is divided into "requested real-time communication" and "unsolicited real-time communication" The so-called "communication with someone" and "non-real-time communication" are generally not allowed to become the communication methods of private equity funds. Secondly, according to the object and mode of communication, the non-control plan that can be exempted from the restriction of Article 238 (1) is specified in detail. If "non-real-time communication" or "real-time communication upon request" is adopted, the following objects may be exempted from the application of Article 238 (1): (1) Overseas people; (2) Former overseas customers (the invitation letter must be an overseas investment plan); (3) Have joined the unadjusted plan (12 months); (4) investment experts; (5) Existing participants in unregulated schemes; (6) wealthy individuals; (7) High-asset companies or unincorporated companies; (8) Skilled investors; (9) Federation of wealthy investors or skilled investors; (10) The promoter, trustee or other representative of the trust; (1 1) Trust, will and other beneficiaries. (12) Other people who can read this newsletter for work reasons.
In the process of communication, it is generally required to provide (1) investor qualification certificate; (2) the investor's own statement; (3) The communicator issues a warning in the communication process and has the necessary mechanism to prevent other non-target personnel from participating. For "real-time communication", it is limited to (1) overseas people spreading overseas investment plans to overseas people; (2) investment experts; (3) High-asset companies and unincorporated companies; (4) Skilled investors; (5) the promoters, trustees and other representatives of the trust. Beneficiaries of trusts and wills.
(3) Legal supervision of private equity funds in Taiwan Province.
In Taiwan Province Province, China, the Private Equity Fund Law passed the Investment Trust Investment Law in February 2004, and its private equity fund adopts the filing system without prior approval. Since June 5438+ 10, 2005, private equity investment trust funds have been opened one after another. At present, there are many legal restrictions on private equity funds. By March 2007, the scale of private equity funds in Taiwan Province Province of China was about 654.38+0.5 billion US dollars, and the scale of mutual funds was about 60 billion US dollars, accounting for about 2.5% of the market.
As for the judgment of private placement, the core norm of the scope of application in Taiwan Province is Item 1 and Item 2 of Article 43 sexies of the Securities Exchange Law. In short, in the first paragraph, it is stipulated that companies that publicly issue shares "1, banks, ticket industry, trust industry, insurance industry, securities industry or other legal persons or institutions approved by the competent authorities; 2. A natural person, legal person or fund that meets the requirements prescribed by the competent authority; 3. The company is only a director, supervisor and manager of an affiliated enterprise. " Private placement of securities by personnel is not restricted by the disclosure obligation in the Company Law, but stipulated in the second paragraph. Meanwhile, the number of private placements is limited. "The total number of subscribers in items 2 and 3 of the preceding paragraph shall not exceed 35."
In order to prevent the company from making a public offering in the name of private placement, the Securities Exchange Law clarifies the prohibition and resale restrictions of publicly induced private placement. Article 43 septies prohibits general advertising or public seduction. In case of violation, the issuer shall undertake the obligation of public offering. In Article 8 of the Detailed Rules for the Implementation of the Securities Exchange Law, general advertisements or public persuasion are also listed.
(D) Legal supervision of Japanese private equity funds
Except for a few overseas funds and regional funds, more than 6,000 funds in Japan are contractual funds, which are under the unified supervision of the Securities Investment Trust Law and the resulting Securities Investment Trust Association. At the same time, the Investment Trust and Investment Company Law revised and promulgated by 1998 12 1 clearly stipulates: "Except for securities investment funds, no one may sign a trust deed whose purpose is to use the trust property mainly for securities investment, but there is no restriction on the act of dividing the income right so that the unspecified majority can obtain it." It can be seen that Japan is a "private fund" that explicitly prohibits securities investment in the above sense. However, for collective investment funds that do not focus on securities, private placement is allowed. In the following years, the scale of Japanese private equity funds expanded rapidly. In addition to some rich people, a large number of pension and insurance companies have also become investors in private equity funds.
For the way of private placement, the provincial order defined in Article 2 of the Securities Exchange Law of the Ministry of Finance of Japan stipulates a series of standards, which can be summarized as: 1 The standard of public offering is to induce more people. That is, whether the number of recipients exceeds 50 is the artificial identification standard. However, if only institutional investors are induced to subscribe for shares, even if there are more than 50 people, it is considered private placement. 2. There is no monopoly. Some situations, such as not listing, not disclosing, and prohibiting face value, can be considered as "private placement". 3. Time limit. In order to avoid evading the obligation of disclosure by installments, the number of people who are induced to issue similar securities within half a year must be calculated together. Involving more than 50 people, it is regarded as "providing".