1. Who is the legal sponsor of the private equity fund?
Article 2 of the Measures for the Administration of the Raising Behavior of Private Investment Funds issued by China Asset Management Association stipulates that the raising subject of private equity funds can only be private equity fund managers and institutions that have obtained the fund sales license and become members of China Fund Industry Association, and no other institution or individual may engage in the raising activities of private equity funds. At the same time, it is also clearly pointed out that the fundraising activities include promoting private equity funds, selling fund shares (rights and interests), handling fund shares (rights and interests) subscription/subscription (subscription) and redemption (withdrawal). Therefore, if the institution does not belong to the two subjects stipulated by law, even with the help of institutions with private placement qualifications, it is still impossible to carry out related promotion activities.
The second is the legal risk of splitting and promoting private equity products by institutions that do not have the qualification to sell private equity funds.
The legal risk of splitting and promoting private equity products by institutions that do not have the qualification to sell private equity funds mainly lies in the crime of illegal fund-raising.
According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund-raising, if the following four conditions are met at the same time, unless otherwise stipulated in the Criminal Law, it shall be deemed as "illegally absorbing public deposits or absorbing public deposits in disguised form" as stipulated in Article 176 of the Criminal Law:
(a) without the approval of the relevant departments according to law or in the form of borrowing legal business to absorb funds;
(two) through the media, promotion meetings, leaflets, mobile phone messages and other means to promote to the society;
(3) Commitment to repay the principal and interest or pay the return in the form of currency, material object or equity. In a certain period of time;
(four) to absorb funds from the public, that is, the social unspecified objects.
The above are the four elements of the crime of illegally absorbing public deposits. First of all, the promotion of private equity products by institutions that do not have the qualification to sell private equity funds meets the first requirement. Secondly, if there is a split sale of private equity products, it is to promote private equity funds to unqualified investors, which meets the fourth requirement. Moreover, in practice, these institutions that illegally promote private placement products often meet the requirements of Articles 2 and 3. Illegal absorption of public deposits or disguised absorption of public deposits reaches a certain amount or number, which constitutes the crime of illegal absorption of public deposits. (For specific standards, please refer to Article 24 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Prosecution Standards of Economic Crime Cases).
For the purpose of illegal possession, if an institution illegally absorbs investors' funds through fraud and reaches a certain amount (unit fund-raising fraud, the amount is more than 500 thousand yuan), it may commit the crime of fund-raising fraud.
3. Is it feasible for institutions to evade the requirements of qualified investors by signing a holding agreement between investors?
Not feasible. Institutions buy funds recommended by institutions by signing a holding agreement between investors, which is a private split and breaks through the standards of qualified investors in disguise.
According to Article 9 of the Measures for the Administration of Private Equity Fund Raising, "No institution or individual may raise financial products with private equity fund shares or their income rights as investment targets in order to evade the standards of qualified investors, or illegally split and transfer private equity fund shares or their income rights, thus breaking through the standards of qualified investors in disguise. The fundraising institution shall ensure that investors know the conditions for the transfer of private equity funds. "
If the investor directly reaches an agency agreement in private, and the fund-raising institution has fulfilled its reasonable auditing obligation (the fund-raising institution should have a set of auditing procedures for qualified investors), but it is proved afterwards that the investor is not a qualified investor, then the fund-raising institution needs to prove that it is ignorant or not at fault before it can be exempted.