With the accelerated development of private equity funds in China, trust platform as a way of private equity financing has attracted more and more attention. On June 25th, 2008, China Banking Regulatory Commission issued the Operational Guidelines for Private Equity Investment Trust Business of Trust Companies (hereinafter referred to as the Operational Guidelines), which provided a clear legal basis for trust companies to enter the field of private equity investment. Private equity trust, that is, private equity investment trust, refers to the trust business in which a trust company invests the funds under the trust plan in shares of unlisted enterprises, restricted shares of listed companies or other shares that can be invested with the approval of China Banking Regulatory Commission. In fact, this is a collective investment system that raises funds through trust mode, makes equity investment in enterprises that meet legal requirements and provide management services, and shares benefits and risks. Earn investment income by investing in unlisted enterprises' listing exit, asset reorganization or capital operation. As a brand-new investment variety, private equity trust provides investors with new investment channels, brings opportunities and challenges for trust companies to build a new profit model, but at the same time, it also puts forward new topics for the current relevant legal system.

(A) the operation mode of trust private equity funds

Private fund trust is a kind of fund trust, which operates according to the process of "raising money first" and then "investing". Article 2 1 of the Operational Guidelines clearly states that the trust company is the sole trustee of the private equity fund trust: "After the establishment of the private equity investment trust plan, the trust company shall personally handle the trust affairs, make investment decisions and control risks independently. If there is an agreement in the trust documents in advance, the trust company may engage a third party to provide investment consulting services, but the investment consultant may not carry out investment decisions on its behalf. The trust company shall conduct due diligence on the basic situation and past performance of the investment consultant management team and specify it in the trust documents. "

The basic operation mode and process of private equity trust are as follows: (1) As the trustee, the trust company raises funds and sets up funds through the trust platform according to the trust contract, and issues fund certificates; (2) As the trustee, the investor purchases the fund certificate and entrusts the property to the trustee for management. Once the trust contract is signed, all the ownership and management rights of the fund property are transferred to the trustee; (3) The fund custodian (often a third-party supervision bank) exercises custody and supervision over the fund property and handles the specific liquidation and settlement business of investment operation; (4) The trustee manages the fund property in his own name, invests in the invested company after discovering the investment target, and benefits from the listing or asset acquisition of the invested company, and distributes the investment results according to the trust contract; (5) The trustee engages an investment consultant to provide professional advice for project selection and project investment decision-making; (6) After the project is withdrawn, the trust beneficiary (trustor) shall enjoy the trust income or bear the risks according to the trust contract. The legal framework of private equity trust operation mode is shown in the following figure:

(2) General forms of trust private equity funds

1. Legal framework.

Trust private equity fund is an investment fund established according to the Trust Law, the Measures for the Administration of Collective Funds of Trust Companies and other relevant laws and regulations. Through trust deed, the rights and obligations of clients (investors), trustees (investment management institutions) and beneficiaries are clarified, and the combination of capital and professional management ability is realized.

Trust private equity fund is also called contract private equity fund. Its legal framework is not a company, but investors entrust funds to operators. The relationship between investors and operators is a trust relationship and a legal relationship with equal rights and obligations. The way of raising trust private equity funds is that the operator signs a trust deed with the investor, and the operator issues the fund beneficiary certificate to the investor. It can also be said that from the way of raising funds, both corporate private equity funds and trust private equity funds are subscribed through "investor purchase". However, the company's private equity fund buys shares, and the trust private equity fund buys fund beneficiary certificates. Trust private equity funds are not legal entities, but trust assets. Because the trust private equity fund is not a legal person, there is no "corporate governance structure", and there is no fund shareholders' meeting, board of directors and board of supervisors. Its governance structure is fund holders' meeting, fund custodian and fund custodian. In addition, because the beneficiaries of trust private equity funds can be designated by fund investors, that is, the separation of fund buyers and fund beneficiaries can be realized, the concept of fund beneficiaries sometimes appears in the organizational structure of trust private equity funds, but generally speaking, whether the fund beneficiaries are fund investors or not has nothing to do with fund management. It should be pointed out that although some trust private equity funds borrow the form of trust plan, trust companies do not really manage funds, but are entrusted by investors to professional investment institutions or other senior investors, and trust companies only serve as a bridge for trust plans. At this time, the trust company is still the trustee, but the management right of the fund has been replaced by the institutions and professionals entrusted by investors-"entrusted investment consultants"