| After more than four years of development,the PPP model has played an active role in promoting construction of infrastructure and major people's livelihood projects.The investment scales of PPP projects are mostly more than one billion,so without financing,the projects' capital only depends on the social party's own capital investment cannot meet the demand.However,with the strict control from ministries and commissions(the Ministry of Finance,the State-owned Assets Supervision and Administration Commission,and the financial supervisory authorities)over the debt funds using as projects' capital and the central enterprises introducing the “debt in the name of equity” funds,supply of funds is continuously reduced,investment and financing of capital for PPP projects are strictly limited.In fact,no matter fake equity-real debt or small equity-large debt,their existence are reasonable in the actual financing environment.Starting from analyzing the impacts of relevant policies(Document No.92 by the Ministry of Finance,Document No.192 by the State-owned Assets Supervision and Administration Commission,Document No.23 by the Ministry of Finance and new asset management regulations)on the capital financing for PPP projects which are debt in the name of equity,and combining the court sentences of three pertinent cases(“the case of additional share dispute between Gansu Shiheng Nonferrous Resources Reuse Co.,Ltd.,Hong Kong Diaco Co.,Ltd.and Suzhou Industrial Park Haifu Investment Co.,Ltd.,Lubo”,“the loan contract dispute case that Chongqing New China Trust&Investment Co.,Ltd.resorted Zhucheng Jiangfeng Real Estate Development Co.,Ltd.”,and “Objection to execution case between Jiangmen Jiangjian Construction Company Ltd.and Jiangmen Jinhua Property Investment Management Ltd.and so forth”),the paper summarizes the general rules for settling legal disputes on capital financing of debt in the name of equity.Furthermore,the paper analyzes the rationale behind the occurrence and existence of such deformation patterns of capital financing as fake equity-real debt,small equity-large debt and so forth in the actual financing environment.Thus,on the basis of these analyses,this paper puts forward opinions on the PPP projects' capital system and financing with debt in the name of equity.The whole paper is divided into introduction and four parts,almost 28,000 characters.The first part introduces the regulation of the capital financing by debt in the name of equity for PPP projects under the current institutional framework,focuses on the impacts ofthe fixed asset investment projects' capital system on the PPP project,and on the restrictions of investment and financing for PPP projects' capital after the policies(Document No.92 by the Ministry of Finance,Document No.192 by the State-owned Assets Supervision and Administration Commission,Document No.23 by the Ministry of Finance and new asset management regulations)were announced.Through the analysis above,this part reveals the dilemma caused by the above-mentioned regulatory documents on the investment and financing of PPP projects' capital under the background of macroscopically de-leverage and microscopically strong supervision.The second part summarizes general rules for settling legal disputes on capital financing of debt in the name of equity through by analyzing the court sentences of three cases such as the case of additional share dispute between Gansu Shiheng Nonferrous Resources Reuse Co.,Ltd.,This part also reveals many conflicts between the numerous regulations and judicial guidelines in the capital financing of PPP projects,provids a legal basis for the legality of PPP project financing by debt in the name of equity and the qualitative problem of shareholders' borrowings to cover the projects' capital.The third part analyzes the reasons and the rationality of deformation patterns of capital financing of PPP project such as debt in the name of equity.Among which,the mismatch between the respective characteristics of the PPP model and the projects' capital system,combining with the demand of the central enterprises to reduce the asset-liability ratio,have spawned the model of financing by debt in the name of equity.And the blockage of capital withdrawals and some other reasons have indirectly led to the emergence of small equity-large debt.From the degree of rationality,in practise,there are indeed PPP projects in the form of fake equity-real debt or small equity-large debt,showing that these models can optimize the allocation of resources through the automatic adjustment function of the market mechanism,thus achieving the balance of interests between the parties.The last part puts forward advises on the PPP projects' capital system and the regulations of financing by debt in the name of equity,including: Through the comparison of the statutory capital system and the discretionary capital system,it is proposed to refine the minimum capital ratio requirement on the basis of retaining the statutory capital system,taking into account factors such as payment mode and investment scale;Strengthen the risk management of debt in the name of equity,implement prudent pre-investment risk assessment and effective post-investment risk management;Strengthen the construction and application of financing bydebt in the name of equity withdrawal mechanism,broaden the limits of repurchase entities,improve the equity transfer mechanism,promote the use of existing approaches,accelerate the exploration of innovation,and etc,for instance. |
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