| As the rapid development of internet technology, financial innovations are now somehow challenging the financial supervisory system world widely, where comparatively well-run supervisory system with “supervision scope” may have stronger response ability than the less mature and developed financial market and less “modern” financial supervisory system. As in China, “debt-based crowdfunding” meanwhile spreads “wildly”, as a result of which, the“Bad money drives out good” phenomenon began to appear in China, and it might even jeopardize the whole industry; on the contrary, “stock method” fails to fulfill its obligation,while the date of promulgating new administrative supervisory is still not clear. This dissertation explores the issues concerning what the really “problem” of supervisory is, what the current condition of local market and supervisory are, what the similarity and dissimilarity exist between operation modes home and abroad, what the foundation and legal characteristic of the stylization are, how about the “stock method”, how to confirm the realistic feature upon the framework of macro supervisory, and also covers the “supervisory revolution” of“financial innovation”, and the hypotheses of how to construct a “specified” debt-based crowdfunding supervisory system, as follows:Part I: “The Evolution and Inspiration of Modern Financial Supervisory”. In this part,it diachronically demonstrates the history of “modernization of financial supervisory”, and digs the “inner interactive” relations between market developing phase and financial supervisory, it then draws a conclusion of the reasons and the manifestations of institutional supervisory, divisional supervisory and “twin peaks supervisory”. Based on such evolutional history as a reference, combined with China's economic index and developing pattern, this part concludes that China now is at the primary stage of financial market towards transforming to “financial modernization” period, which is hopefully shortened by the thirty years' fortune collection, intense supply-demand relations, and up-coming “financial innovation” and “mixed operation”. Despite of the fact that the current industrial supervisory system and market base in China can be suitable for each other in general, the “breakthrough”will bring the “apparent urgency” of revolution, which cannot be done in just one day. Thus,the author makes a proposal that the earliest thing is to confirm the outline of the supervisory revolution, and then it can adopt a revolution path from “point to whole” “step by step”, for instance, the “financial crowdfunding supervision” which endures high complex feature can be used as an “experiment” and “option”, then it can be implemented in a limited range for the demonstration of “integration supervisory”.Part II: “The Analysis and Interpretation on Supervisory Target of Debt-based crowdfunding in China”. As an emerging industry, the legal connotation and categorization of crowdfunding do not have reached a consensus, so this part, based on comparison and analysis about the differences between financial crowdfunding and other financing ways, such as IPO financing, private lending, bank financing, private equity and traditional micro financing, it defines financial crowdfunding as “micro financing” category, exempt from the supervision of IPO. In addition, in view of “one-to-many” feature and “investment properties”of financial crowdfunding products, complexity of financier identity(such as the natural person, the partnership, the company and other organizations), which have a common demonstration in practice of industries at home and abroad, and diversity of services in crowdfunding platform(investment brokers, investment consultants, collective raising scheme and managers, and even multilateral trading occasions), this article characterizes “financial crowdfunding” products as “financial investment commodity” and positions crowdfunding platform as “financial services institution”, so as to facilitate “ integration supervisory”. At the same time, whereas regulatory focus were on crowdfunding platform, except different obligations imposed on financiers and crowdfunding platform due to rights differences of investors, it is not significant whether the issuer is a qualified securities issuer, and to distinguish whether the issuing way is in securities or "loan contract". Therefore, this article distinguishes the financial crowdfunding as equity-based crowdfunding and debt-based crowdfunding, and meanwhile has a detailed research on unsuitability of Anglo-American transplantation of thoughts on differences of consumer credit services and securities financing to “crowdfunding supervisory”, and makes the introduction, evaluation and analysis on “right standard” classification of New Zealand, India and International Organization of Securities Commissions. Finally, this part makes selections from legislative terms and product forms of“debt-based crowdfunding”, by abandoning the usage of terms, “peer-to-peer lending"( hereinafter to be referred as P2 P lending) and "loan-based crowdfunding", and explicitly acknowledges the legitimacy of P2 P lending products, debt assignment products of the investment realization in the platform and investment funds products of P2 P lending, and explicitly prohibits the usage of new hand standard, net value standard and general assignment of debts financing standard, and meanwhile by defining and negating “offline transactions”, it makes requirements that debt-based crowdfunding products must be brought into the scope of supervisory by online mode.Part III: "Local Ecology about Construction of Supervisory System of Debt-based crowdfunding in China". This part makes empirical research on the industry through direct participation in investment, telephone interview, data collection and analysis, and by making horizontal(against the abroad) and vertical(debt-based crowdfunding against the other domestic financing methods) comparison and analysis, and points out that domestic debt-based crowdfunding has seriously deviated from the category of "small exemption",which obviously becomes “dissimilarity” as IPO financing to scale. The large systematic risk is lurking in this “detached” financing to scale. In the meantime, same with this financing to scale, disguised guarantees to large scale of China is that through arranging cooperation between financiers and small loan companies, asset management corporation, factoring, and sales companies(the motor corporation and the real estate company), credit addition is provided by the latter in way of larger-scale and persistent "debt assignment + repurchase" or "debt assignment+ making up the difference". Whether from the perspective of formal financier or substantial financier, this kind of behavior may deal with financing to scale,occupational guarantees or occupational financing on-lending behavior. The essence on concentration of risks and free of supervision doesn't change, although this kind of companies mentioned above may "hidden" continuity. The two large problems mentioned above must draw more attention. Supervisory method is including limited financing, informational real-name(enterprise) disclosure, information storage and inquiry by investors and information reported to “central data bank”) In addition to the summary of the two most serious problems at macro level, this part also investigates the actual operation of the platform,and points out that from the legal point of view, regardless of how the product itself is full of "playful tricks", the platform is to play a major role in financial services as follows:investment brokers, investment consultants(including the entrusted financial management of deciding to invest by using investor accounts and names) and P2 P investment fund raiser and manager and to show typical operation modes of products mentioned above and the existing legal constraints and investment risks, by illustrative way of simulating the operation. First, it aims to provide a basis for the later regulatory response. The second purpose is to expose the overall status of worrying norms and by regarding the regulatory requirements as the basis,understand existing “inventory method”system. Finally, the conclusion is drawn that currently the existing financial supervisory system which takes securities, insurance and banking as objects is almost "zero coverage" to “debt-based crowdfunding”. Apart from taking stock of inventory method, this part also evaluates the existing regulatory response and points out problems that in the whole the existing regulatory ideas lack of domestic and international "live" grasp of industry, and there is no clear thinking of supervisory, and even problems,including how to distinguish and connect P2 P lending and equity-based crowdfunding under the supervision of China Securities Regulatory Commission and which kind of legislative mode to adopt and so on.Part IV: "Macro Construction of Regulatory System of Debt-based crowdfunding in China—The Establishment of Regulatory Institution, Legislation Model and Regulatory Thoughts.” This part, on the basis of reference to foreign regulatory agencies, legislation model choice, combined with our existing supervision system, and operational needs,recommends debt-based crowdfunding to be still supervised by China Banking Regulatory Commission and equity-based crowdfunding to be still supervised by China Securities Regulatory Commission, and that“ financial crowdfunding supervisory” of content integration should be made by the way of the two ministries jointly issuing the documents. The so-called"integration" is reflected in the fact that the two kinds of crowdfundings are under the same regulatory norms, so as to avoid the repetition of legislation and supervision injustice, and from the perspective of supervision content, both of them are more under the same platform adjustment in admittance, business nature and codes of conduct, and only a few articles reflect differences in investor protection; in addition, the "integration" is also reflected in the fact that in the absence of superior law in China, in the context in which "integration supervisory "norms are still put off to the indefinite future, the content of crowdfunding regulatory rules needs to first cover the access conditions and obligation norms of various businesses in platform, and namely makes adjustments on investment consultants, investment brokers and so on, so as to not only not limit the platform business freedom, without conflict with service functions and is consistent with the international practices, but also increase protection means in the lack of the credit system in our country. However, this article also demonstrates that this kind of design is indeed an expedient, not on the basis of the "superior law", and meanwhile achieves “killing two birds with one stone” effect—“industry regulation” and "integration start". Until the upper "integration law" in a mature situation, departmental rules and regulations should naturally return to its "specialized law" attribute, so as to be different from this two-in-one role of "general provisions and specialized rules". In addition, under the regulatory ideas, this article recommends that on the train of thoughts "strictness and standardized", it is significant to focus on making “behavior regulations” in crowdfunding platform, by taking "financial consumer protection" as clues. Strictness and standardization thoughts are mainly based on the realistic reason of our industry chaos, the poor market credit environment, the still limited platform risk control technology and data storage, and "little"supporting legal supervision. In addition, the standardization also helps to increase the platform index, industry data identification and operation of legislation; taking "financial consumer protection" as clues is mainly on the basis of the limit about debt-based crowdfunding originally without systemic risk and the major risk of crowdfunding business existing in violation against consumer rights by improper operation of platform. Therefore,we should regard "behavior standard system" of platform as the key content of system design and be less engaged in the operation of prudential and regulatory measures including the capital adequacy ratio. Meanwhile, this part also makes definition of "financial consumer"and teases out the objects which belong to "financial consumers" of debt-based crowdfunding platform.Part V: “Concrete Construction of Regulatory System of Debt-based crowdfunding in China”, this part analyses the operating condition of platforms overseas, makes comparative study in different angles, consequently discusses further subject qualifications and financial limitation, the method and condition of market admittance, and the legislative proposal for the responsibility of crowdfunding platform. As for the subject of equity trading, the author holds the view that both nature person and enterprise shall be qualified to be involved in, and it's not necessary to exclude traditional financial company, nor the real estate company, for those companies are deemed to be high risky ones, rather, the author suggests to build a market distribution channel through establishing equity limitation; the author divided the investment subjects into nature person, non-financial enterprise, and professional investor under the supervision of regulations(as in integrated plans, loan company with small amount, financial consumer company with qualifications of investment and loaning), the former two can be set with equity limitation in the hope of avoiding “professional” and “operational” loan behaviors,as the last one, the equity limitation shall vary in order to be convenient for the development of the P2 P fund(which is considered as the significant protection for individual investors),saving the provided in law otherwise, the said equity limitation shall obey the law; for the specific limitation, the foreign experiences and China's practical conditions shall be taken into account, this part advices 300 thousands RMB for the nature person's limitation, and 3 million RMB for enterprises, for which the time framework shall not be limited, and they shall play the role as the maxim of “equity finance”. Meanwhile, this part proposes that all the data shall be included in “central data base”, which can provide the debtor's credit report, and can also become an “alert” system to flag excess equity conditions. Additionally, the platform shall take measures to protect the consumer's privacy by controlling single investment, while the total amount of nature person's investment shall be controlled by the central database, and the platform will have no access to involve into the personal data, the total amount of enterprise's investment shall still be supervised by “central data base” with “alert” system so as to not get into the excess behaviors of “equity to loan”; the admittance of crowdfunding is recommended in this part to implement by “license” system which shall cover the minimal requirement for registered capital, competent human resource, competent IT resource and general competence which a platform is supposed to bear, plus, it shall also cover the proof of relevant system and protection procedure, and its competence to meet the needs of consultation, integration and planning services, moreover, the business permit. Besides,litigation should approve the financial institution to carry crowdfunding business, and consider the possibility of new service types in prospect(such as multi-lateral electronic transaction), which calls for institutional back-up; when it comes to the responsibility issues of the crowdfunding platform, this part presents a device combined of general supervisory and concrete regulation, which means all measures such as information disclosure, due diligence,client asset management, living will, professional insurance, regulated contract, information report, and regulated advertisement; general supervisory means the requirement of the“obedience of rules” for the platform; specific supervisory means that the information disclosure and report shall be clarified, while data calculation and disclosure standards shall be standardized and uniformed. At last, the end of this part focuses on the “characteristic” of the supervisory of the platform, makes further proposals for the responsibility on information disclosure and report in the view of litigation. |
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