Take Sichuan as an example. 20 14,10126 On October, Sichuan Fortune Alliance Financing Co., Ltd., the largest investment company in Sichuan, closed down and was investigated for illegal fund-raising. 20 14 12 10 The head of Chengdu Zhonghe Investment Management Co., Ltd. ran away, and many investors came to collect debts. A series of events, such as the bankruptcy of the investment company, the person in charge running away or being taken criminal compulsory measures, have dealt a blow to investors immersed in high returns.
Based on the practical problems encountered by the author, this paper takes the limited partnership private equity fund as an example to analyze the relevant investment models, so that investors can understand the specific reasons for the losses caused in the investment process.
First, the concept and legal basis of limited partnership private equity investment fund
The author believes that to define the concept of limited partnership private equity investment fund, we need to start with its concept composition. Limited partnership private equity investment fund contains two legal concepts, one is limited partnership and the other is private equity investment fund.
(A) the concept and legal basis of limited partnership
Limited partnership is the main operation mode of venture capital (VC) and private equity fund (PE). According to the United States Joint Limited Partnership Act, a limited partnership refers to a partnership consisting of two or more people according to the laws of a certain state. Include one or more general partners (GP) and one or more limited partners (LP). China revised the Partnership Law on August 27th, 2006, and introduced the concept of limited partnership for the first time. The first paragraph of Article 2 of the newly revised Partnership Enterprise Law stipulates: "Partnership enterprises mentioned in this Law refer to general partnership enterprises and limited partnership enterprises established in China by natural persons, legal persons and other organizations in accordance with this Law." Paragraph 3 of Article 2 stipulates: "A limited partnership consists of a general partner and a limited partner. The general partner shall be jointly and severally liable for the debts of the partnership, and the limited partner shall be liable for the debts of the partnership to the extent of the capital contribution subscribed. " Therefore, China has established the legal status of limited partnership.
(B) the concept and legal basis of private investment funds
Speaking of private equity funds, everyone is most familiar with private equity funds. Private equity investment funds can be divided into broad sense and narrow sense. Private equity investment funds in a broad sense cover the investment rights and interests of enterprises in all stages before the initial public offering (Pre-IPO), that is, the investment made by enterprises in seed stage, initial stage, development stage, maturity stage and before IPO. Private equity investment fund in a narrow sense mainly refers to the private equity investment part of mature enterprises that have formed a certain scale and generated stable cash flow. On August 2 1 2004, the CSRC promulgated the Interim Measures for the Supervision and Administration of Private Investment Funds. Article 2 of the Measures stipulates: "The private investment funds referred to in these Measures (hereinafter referred to as private investment funds) refer to investment funds established by raising funds from investors in a non-public manner in People's Republic of China (PRC). Investment in private equity funds includes buying and selling stocks, equity, bonds, futures, options, fund shares and other investment targets agreed in investment contracts. "
Through the relevant provisions of the Interim Measures for the Supervision and Administration of Private Investment Funds, it can be seen that compared with private investment funds, private investment funds in China's current laws and regulations can engage in equity investment and other investments such as creditor's rights.
To sum up, private equity funds established in the form of limited partnership can be called limited partnership private equity funds.
Second, the operation mode and legal risks of limited partnership private equity investment funds
(A) Limited partnership private equity investment fund operation mode analysis
The emergence of limited partnership private investment funds is the product of capital innovation. As an organizational form of venture capital fund, limited partnership was originally born in the United States, which is the product of organizational innovation and institutional innovation of American venture capital. According to statistics, in 1980, the investment of venture capital funds of limited partnership in the United States was US$ 2 billion, accounting for 42.5% of the total venture capital, reaching US$143.2 billion, accounting for 8 1.2% of the total venture capital. With the implementation of the newly revised "Partnership Enterprise Law" in China, limited partnership private investment funds have been introduced into China. Limited partnership private equity investment fund avoids the shortage that enterprise investment funds have to pay both corporate income tax and personal income tax, and at the same time, based on its flexible income distribution system, it has gradually become a mainstream financing method.
Through the analysis of the cases encountered in the actual case handling process, the author extracts the following general operation mode of limited partnership private equity investment fund, which is illustrated in detail below:
In the course of trading, the main trading procedures are as follows:
(1)A (generally Company A) is the initiator and general partner (GP) of the private equity investment fund, B is the limited partner (LP), and * * * establishes D Limited Partnership as the investment institution of this transaction;
(2)A and D promote investment fund products through sales channels such as banks, and call on investors with economic strength (such as C) to join D Limited Partnership as limited partners;
(3) inject capital into E project company through D limited partnership, generally through entrusted loans or equity investment;
(4) Project E will invest the funds raised through D Limited Partnership into the agreed project of this transaction;
(5) The target of F guarantee is that E project company provides guarantee to D limited partnership.
(B) the legal risks of limited partnership private equity investment funds
Although the limited partnership private equity investment fund has many advantages for the financier, it is difficult for ordinary investors to clarify the legal relationship because of its complicated transaction structure compared with traditional equity and creditor's rights investment, and the sellers of fund products usually don't clearly tell investors how much risk they have to bear when purchasing related products, so it often makes ordinary investors make wrong judgments. Through the actual case I participated in, the author summed up that the limited partnership private equity fund is mainly prone to the following problems:
1. There are procedural defects in adding limited partners.
According to Article 13 of the Partnership Enterprise Law of People's Republic of China (PRC): "If the registered items of a partnership enterprise are changed, the partners who carry out the partnership affairs shall apply to the enterprise registration authority for registration of change within 15 days from the date of making the change decision or explaining the reasons for the change." Article 18 of the Measures for the Administration of Partnership Enterprise Registration in People's Republic of China (PRC) stipulates: "If the registered items of a partnership enterprise are changed, the partners who carry out the partnership affairs shall apply to the original enterprise registration authority for registration of change within 15 days from the date of making the change decision or explaining the reasons for the change." However, in practice, investors often only sign subscription agreements for private investment funds with newly established limited partners and occupancy agreements with general partners. However, due to the large number of limited partners and other reasons, the general partners are often too lazy to change the industrial and commercial registration afterwards, resulting in investors not becoming real limited partners.
2. The degree of risk warning is not enough, and there is false propaganda in the sales process.
Limited partnership private equity funds are often sold as wealth management products through bank channels. However, due to the huge sales commission of this kind of wealth management products, when recommending this kind of private investment funds to customers, most bank account managers will call this kind of products capital-guaranteed wealth management products and promise bank guarantees, which makes many investors convinced.
In addition, due to the complexity of the transaction structure of such products, many times the bank financial manager in charge of sales may not be fully aware of the risks. In addition, the subscription agreement and occupancy agreement signed by investors only require investors to undertake the overall risks, but do not clearly put forward what risks exist and how big the risks are. Investors usually mistakenly think that this is a wealth management product issued by banks to ensure income, so they can buy it with confidence.
3. The general partner dereliction of duty
The operation of limited partnership private equity funds depends entirely on general partners. After the fund raising is completed, the general partner is generally responsible for the handover with the project company, and after signing a series of agreements, the funds will be put into use in the project. For investors who know little about the project and lack legal and financial knowledge, the due diligence of the general partner as a manager is particularly critical. Once the general partner fails to perform due diligence on the project to be invested, or the general partner directly misappropriates the raised funds, it is difficult for the limited partner to understand and collect relevant evidence in time and safeguard its own rights and interests.
Through the above analysis, it is not difficult to find that when investors subscribe for limited partnership private equity investment funds, due to the complex transaction structure of limited partnership private equity investment funds, it is difficult for ordinary investors to make a correct judgment on their potential risks when subscribing. Therefore, intermediaries should change the trend of "fudge" when recommending relevant wealth management products to investors, and do a good job of informing them in advance. At the same time, investors should also raise their awareness of risk prevention, especially before making a large investment, it is best to consult lawyers and other professionals in order to get the risk tips of related investment products, and then judge whether they have the ability to bear the above risks.