A Research On The Legal Systems Of The Private Placement Funds In Our Country

Regarding the supervising systems upon private placement funds, the USA and UK are respectively the typical representatives of government supervision and self-discipline regulation.The different supervision models imposed on private placement funds by nations reflect the background of formation of different systems.Based on the historical origin, USA adopts a supervising model that combines balance and harmonious moderate supervision, i.e., balancing convenience and investor protection, balancing performance and fairness, balancing market and supervision, and at the same time it coordinates issuance and circulation, and finally promotes the benign running of private placement funds.By researching the overseas private placement funds legal system represented by USA, in combination with the actual situation of our country, and conducting concrete system establishment work, growth of the private placement funds in our country will be benefited.The research in this thesis on the legal systems of our country about private placement funds chiefly comprises 5 parts as follows:Chapter I, private placement funds overview. This part defines private placement funds and anatomizes its characteristics and sorts out its types through analyzing overseas laws.Regarding the essence of private placement fund, this thesis holds that it has two kernel factors: first, it is set up by non-public rising, and its raising method and means are restricted to an extent; second, it is issued to particular subjects, and the investors have rather strong economic strength and risk judgment ability. To accurately understand the connotation of private placement funds, and regulate its operation, this thesis make a deep anatomy into the legal nature of private placement funds, and holds that it belongs to a special trust relationship, and is essentially different from public placement funds and consigned financing service and illegal raising of fund.Chapter II, the development status of private placement funds in our country. This part scrutinizes the growth process of private placement funds in our country, and summarizes its forms of representation. On the basis of combining the economic growth of our country and the capital market growth in particular, the author thinks that, from the viewpoint of growth, private placement funds can play an active promoting role in streamlining the financial structure and internationalizing the financial market of our country. However, because the legal status of private placement funds is still not demonstrated so far, and it lacks an operational mechanism and regulatory mechanism, so actually the private placement funds of China still stands between actuality and regulation. The lack of systems becomes the main hindrance to the benign growth of private placement funds.Chapter III, Analysis of the private placement funds legal systems in USA, UK and Taiwan region of China. This part mainly studies the growth of private placement funds in USA and its legal systems, and combines the regulatory systems in UK and Taiwan region of our country. It give a rather comprehensive introduction to the establishment procedures, organizing structure, investor, raising fashion, profit distribution mode and regulatory systems of private placement funds. Guided by the comparative study method, this chapter summarizes the private placement funds legal systems in the three countries or regions, and concludes that the private placement funds have high risk, and the regulatory body shall focus on requiring the capital strength from the investor, and regulating the information communication of private raising method, and , at the same time, take reference from the balanced supervising principles of USA, and realize balance between convenience and protection of investor, efficiency and fairness, market and supervision.Chapter IV, overall conception of legislation in our country on private placement funds. At present, our country has no particular law on private placement funds. The related legal systems are scattered in laws about trust, security, company, partnership enterprise, and investment funds, etc. The promulgation of"Trust Law"in 2001 sort the legal relations of contract type security investment funds , and play active function to the private placement funds, but it still does not expressly regulate the meaning of private placement fund, its fund origin, organizing method, operating mode etc, and as a result, the related regulation in"Trust Law"seems to be crippled.This thesis holds that, to correctly guide the normalized growth of private placement funds, we must include private placement fund in our legal system framework, and establish necessary legal foundation for the long term growth of this sector. This thesis fully demonstrates the legalization of private placement funds on the basis of in-depth analysis of our country's economic growth status quo, and believes that, during legislation for private placement funds, the principle and basic guiding idea shall be balance between market behavior qualification and efficiency, equal legal standing of parties concerned, independence of fund property , and combination between our country's situation and foreign countries'legislation experiences . Chapter V, specific establishment of legal systems on private placement funds in our country. These chapters establish the specific systems of private placement funds from four kernel levels: market access permission, risk management, supervising mechanism, investor interest protection. Regarding the condition of qualified investor, the qualification requirement on sponsor of private placement funds, the manager and the custodian, this chapter designs the systems. It also analyzes the risk representation forms and roots of current private placement funds in our country, and gives solution plan from the viewpoint of information revelation system, risk prompting system, etc. After deeply anatomizing the defect and shortcoming of our country's current supervising mechanisms, it establish the basic idea and concept for supervision, and define the key links of the supervision. Regarding the"consigned financing","assets management"and other behaviors existing in our current market, this thesis thinks they are contrary to the legal nature of private placements funds, and shall be subject to regulation.