At present, the so-called "private fund" in China is not a real private fund, and a considerable part of it is actually a "private contract fund". There are obvious differences between the two:
First, the organization is different. Standardized private equity funds, whether contractual or corporate, are legally independent legal entities, and the fund holders' meeting is the highest authority of the institution. Private placement contract fund is not an independent legal person organization, but a business entrusted by the fund, and there is no authority such as fund holders' meeting.
Second, the formation methods are different. The formation process of private equity funds is roughly as follows: the sponsors draw up various legal documents related to private equity funds, such as fund articles of association, fund contracts, fund custody books, etc. , and then send an investment invitation to specific investors and hold an investor meeting to determine their respective investment intentions and investment amount, and decide to pass various legal documents, and investors will hand over the promised investment funds to the fund manager within the agreed time limit. In contrast, the formation of private equity contract funds is roughly as follows: investors or managers look for each other through various channels (such as friend introduction, industry reputation, etc.). ), and negotiate the conditions of entrusted investment of funds, and implement fund custody after reaching the basic intention. Then the investor and the manager directly sign the fund entrustment investment contract, and then the investor and the manager sign the fund custody contract with the custodian. In addition, the signing of private equity fund contracts is collective, and the number of investors usually reaches dozens or even hundreds; In quite a few cases, the signing of private equity contract funds is carried out by managers and different investors at different times.
Third, the capital relationship is different. The relationship between managers and investors of private equity funds belongs to fund trust relationship. Therefore, the manager not only does not promise to guarantee a certain fixed investment return to investors, but also should withdraw the prescribed management fee from the net assets of the fund according to the trust rules regardless of whether the operation is profitable or not. In contrast, the relationship between investors and managers of private equity contract funds is the private entrusted investment relationship of funds, and most investors require managers to ensure a certain fixed rate of return.
Fourth, the operational consequences are different. Private equity funds are established and operated according to law, and the signed documents are legally binding and specific. Therefore, from the actual situation abroad, there are few disputes between investors and managers. Although the contract signed by private contract funds is binding on the parties to a certain extent, it lacks legal effect, the specific terms of the contract are often not detailed enough, and interest disputes in court often occur. In particular, some fund managers, driven by interests and under the pressure of the lowest income level, often adopt operational strategies such as "sitting in the village" and collusion, which seriously affect the normal operation of the stock market and even become underground "gambling sources".