Original title: Ten no! Just now, the China Securities Regulatory Commission has expanded its recruitment, 16 trillion private equity has welcomed the blockbuster new regulations, and the interpretation of the 15 core points has come!
At the beginning of the new year, nearly 16 trillion private equityfundThe industry ushered in the implementation of heavy new regulations.
On the evening of January 8, the China Securities Regulatory Commission issued the “Regulations on Strengthening the Supervision of Private Equity Investment Funds” (referred to as the “Regulations”). There are 14 articles in total, forming private equity fund managers andPractitionersAnd other subjects’ “ten must not” prohibitive requirements. The main content includes: First, regulate the name and business scope of private equity fund managers, and implement new and old divisions; second, optimize the supervision of group private equity fund managers, and achieve support for advantages and disadvantages; third, reiterate that private equity funds should invest in qualified funds The fourth is to clarify the property investment requirements of private equity funds; the fifth is to strengthen the regulatory requirements of private equity fund managers and practitioners, and to regulate related transactions; the sixth is to clarify legal responsibilities and transitional arrangements.
Statistics show that as of the end of 2020, there are 24,600 registered managers, 96,800 private equity funds have been filed, and the scale of management is 15.97 trillion yuan.The fund manager found that the official draft was more complete in many respects than the draft released on September 11 last year.product、QFII, RQFII is regarded as a qualified investor, etc., and at the same time, the regulations for private equity registration and office locations to be in the same provincial administrative region are deleted.
The China Securities Regulatory Commission stated that the “Regulations” this time is one of the important measures to implement the requirements for preventing and dissolving risks in the private equity industry. It will further guide the private equity industry to establish a sense of bottom line and compliance, and it is also important for optimizing the private equity industry ecology. Positive meaning.
Based on the content of the official draft, the Fund Manager compiled the fifteen key points of the new regulations for your reference.
1. It is clear that the target of supervision is the private equity fund manager registered by the association
The “Regulations” first clarified the applicable object, namely, in ChinaStock investmentThese regulations shall apply to private equity fund managers registered by the fund industry association in accordance with the law to engage in private equity fund business. However, these regulations do not apply to securities companies, fund management companies, futures companies and their subsidiaries engaging in private equity fund business.
It is clearly required that private equity fund managers should complete the registration with the fund industry association in accordance with regulations before conducting private equity fund business activities such as fund raising and fund management for the first time.
Interpretation: The new regulations clarify that this time is mainly for private equity fund managers registered with the association, including securities, equity and venture capital, other types, asset allocation managers, etc., but clearly pointed out that it does not includeBrokerage、fund companyAnd futures companies, etc.
2. The name and business scope of private equity must be marked with words such as “private equity fund”
The “Regulations” point out that without registration, no unit or individual may use the words “fund” or “fund management” or similar names to conduct private fund business activities, unless otherwise provided by laws and administrative regulations.
At the same time, the private equity fund manager shouldWinning bidSpecify the words “private equity fund”, “private equity fund management”, “venture investment”, and indicate “private equity investment fund management”, “private securities investment fund management”, “private equity investment fund management”, and “venture investment fund management” in the scope of business. Characters of entrusted management of private equity funds.
Interpretation: The official draft of the requirements for the name, business scope and business scope of the private equity manager is more detailed than the draft for comments. The words “private securities investment fund management” and “private equity investment fund management” are marked to reflect entrusted management The business attributes of private equity funds. It is worth noting that, in response to the above requirements, the “Regulations” implement “new and old division”, which means that more than 20,000 private placements that have been filed do not need to change their names.
3. Private placement is not allowed to engage in private lending, off-site fund allocation and other businesses
The “Regulations” emphasize that private equity fund managers shall not directly or indirectly engage in private lending, guarantees, factoring, pawning, financial leasing, online lending information intermediary, crowdfunding, over-the-counter fund allocation, etc., which conflict or have nothing to do with private equity fund management. business.
Interpretation: Supervision requires private equity fund managers to focus on the main business of investment management, and can carry out fund raising, investment management, advisory services, and provide management consulting services for invested companies around private equity fund management, but they must not “sell their heads” to In the name of private equity, private lending, online lending, and over-the-counter capital allocation are used.
4. Investors are strictly prohibitedCross-holding, Revolving investment, etc.
The “Regulations” point out that the contributors of private equity fund managers shall not have such situations as holding, revolving capital, cross-financing, excessive levels, complicated structures, etc., and shall not conceal the associated relationship or make the associated relationship unlinked.
Interpretation: Supervision requires that the equity structure of private equity fund managers should be clear and stable. Private equity fund managers are required to truthfully disclose their capital contribution structure during registration and must not conceal related relationships. Investors are strictly prohibited from holding, cross-holding, and revolving capital contributions. This is mainly to prevent risks. For example, some private equity structures overlap and hide their actual controllers, and there are many problems.
5. The rationality and necessity of controlling two or more private equity should be explained
The “Regulations” stated that if the same entity or individual controls or actually controls two or more private equity fund managers, it should be reasonable and necessary to establish multiple private equity fund managers, and disclose each private equity fund manager comprehensively, timely and accurately. Division of business and establishment of a comprehensive compliance risk control system.
Interpretation: The new regulations optimize the supervision of group private equity fund managers, allowing the same entity to establish more than two private equity managers, but require them to truthfully explain the rationality and necessity of establishing multiple managers, and disclose the division of work of each manager. Establish and improve the compliance wind control system to ensure that the group can explain clearly, control, and take responsibility for the managers under its control. It can be seen that it is not a one-size-fits-all for group private equity, but for group private equity fund managers who can establish a good internal governance and risk control system, differentiated supervision can be given to support the advantages and limit the disadvantages.
6. “Ten Not” prohibitive requirements for private equity managers and practitioners
The Regulations specify that private equity fund managers, private equityFund sales10 types of behaviors that institutions and their practitioners must not directly or indirectly exist in the private equity fund raising process, that is, the “ten must not” prohibitive requirements:
(1) Raising funds from entities and individuals other than qualified investors specified in the “Private Equity Measures” or providing investors with conveniences such as multi-person pooling and fund lending to meet the requirements of qualified investors;
(2) Through newspapers, radio, television,the InternetPublic media such as lectures, report meetings, analysis meetings, etc., media such as announcements, leaflets, short messages, instant messaging tools, blogs, and e-mails, to promote to unspecified objects, but the official website and customers of the program are determined by setting specific objects Except for the case where Internet media such as mobile terminal promotes to qualified investors;
(3) Orally, in writing, or through short messages, instant messaging tools, etc., to directly or indirectly promise to investors to guarantee capital and return, including situations where the investment principal will not be lost, a fixed percentage loss, or the promise of a minimum return;
(4) Exaggerating and one-sided publicity of private equity funds, including safe use, capital preservation, zero risk, guaranteed returns, high returns, and worry-free principal, etc. that may cause investors to fail to accurately understand the risk of private equity funds, or to publicize expectations to investors Similar expressions such as rate of return, target rate of return, and benchmark rate of return;
(6) The promotional materials contain false records, misleading statements or major omissions, including untrue, accurate and complete disclosure of private placementsFund transactionStructure, main rights and obligations of all parties, income distribution, expense arrangements, related transactions, entrusted third-party institutions, and private equity fund managers’ investors, actual controllers, etc.;
(7) Misleading publicity and promotion in the name of registration and filing, financial institution custody, government funding, etc. as credit enhancement means;
(8) Entrust units or individuals not qualified for fund sales to engage in fund-raising activities;
(9) The establishment or disguised establishment of branches for the purpose of engaging in fund-raising activities;
(10) Laws, administrative regulations andChina Securities Regulatory CommissionOther prohibited situations.
Interpretation: The fund manager compared the specific provisions of the “ten must not” prohibitive requirements. The official draft is similar to the draft for soliciting comments. Only the “WeChat” in the promotion carrier is changed to “instant messaging tool”.
The China Securities Regulatory Commission stated that, based on the nature of private equity funds’ “non-public offering”, it adheres to the cornerstone of “qualified investors” unswervingly, and reiterates the requirements for prohibited behaviors in the process of private equity fund raising, including not violating the requirements of qualified investors to raise funds and not passing Carriers such as the Internet promote and promote to unspecified targets, and must not promise investors to guarantee capital and return, exaggerate publicity, false publicity, establish branches for the purpose of fundraising activities, and break through the number of investors.
7. Private equity actual controllers, related parties, etc. are not allowed to raise funds for publicity and promotion
The “Regulations” also point out that the investors, actual controllers, and related parties of private equity fund managers shall not engage in the publicity and promotion of private equity fund raising, or engage in or engage in disguised conducts as listed in the preceding paragraph.
Interpretation: The regulation clarifies that if the contributors, actual controllers, and related parties of private equity fund managers are not qualified for fund sales and are not entrusted by the private equity fund managers to engage in fund sales, they shall not engage in fund raising activities.
8. Treat asset management products, QFII, RQFII as qualified investors
The “Regulations” clarify that the cumulative number of investors in private equity funds shall not exceed the specific number prescribed by laws such as the Securities Investment Fund Law, the Company Law, and the Partnership Enterprise Law. Where an investor transfers fund shares, the transferee shall be a qualified investor and the number of investors after the transfer of the fund shares shall comply with the provisions of this Article. Asset management products issued by institutions under the supervision of the State Council’s financial supervision and administration department, qualified foreign institutional investors,RMBQualified foreign institutional investors are regarded as qualified investors as stipulated in Article 13 of the “Private Equity Measures” and will no longer penetrate the final investors.
Interpretation: Compared with the draft, the official draft deletes “private equity funds established in the form of a joint stock company or contract shall not exceed 200 in total, and private equity funds established in the form of a limited liability company or partnership enterprise shall not exceed 50 in total. “
At the same time, the official draft added asset management products, QFII, and RQFII issued by regulated institutions in accordance with the law, as qualified investors, and no longer penetrating and verifying final investors. This responds to the new QFII/RQFII regulations issued in September last year, QFII And RQFII can invest in domestic private equity investment funds.
The China Securities Regulatory Commission also stated that the “Regulations” further refine the scope of qualified investors in the “Interim Measures for the Supervision and Administration of Private Investment Funds”, and no more penetrating inspections of asset management products under the supervision of the State Council’s financial supervision and management department, and no combined calculation of the number of investors. The introduction of long-term funds for private equity funds removes institutional barriers.
9. The property of private equity funds shall not be invested in real debts or similarCreditAssets etc.
The “Regulations” point out that private equity fund managers shall not directly or indirectly use private equity fund assets in four investment activities:
(1) Non-private fund investment activities such as borrowing (depositing) loans, guarantees, and real debts on public stocks, except for private equity funds that provide equity investment for the purpose of providing loans and guarantees for invested companies within one year according to the contract;
(2) Investing in factoring assets, financial lease assets, pawn assets and other credit assets, equity, or their right to receive (receive) benefits;
(3) Engaging in investment with unlimited liability;
(4) Other investment activities prohibited by laws, administrative regulations and the China Securities Regulatory Commission.
Interpretation: The new regulations prohibit the use of fund assets to engage in non-private fund investment activities such as borrowing (depositing) lending, guarantees, and real stock debts, investing in credit-like assets or the right to receive (receiving) benefits, and investing in unlimited liability investments. Do not engage in state prohibition of investment, restriction of investment, andindustryPolicies, environmental protection policies, land management policies, etc. This is mainly to guide the return of private equity funds to securities investment, equity investment and other industries, emphasizing the essence of “benefit sharing and risk sharing” in investment activities.
10. Private equity funds can provide equity investment companies with loans within one year, etc.
However, the “Regulations” also provide exceptions. Private equity funds use equity investment as their purpose and provide investment companies with loans and guarantees within one year as agreed in the contract. Private equity fund assets can be used. The requirement is that the due date of the loan or guarantee shall not be later than the exit date of the equity investment, and the balance of the loan or guarantee shall not exceed 20% of the actual paid amount of the private equity fund; unless otherwise specified by the China Securities Regulatory Commission.
Interpretation: The China Securities Regulatory Commission stated that this regulation is in compliance with business practices and allows private equity funds to provide short-term loans or guarantees for invested companies for the purpose of equity investment. The balance of loans or guarantees shall not exceed 20% of the actual paid amount of the private equity fund.
11. 13 “not permitted” behaviors of private equity practitioners
Private equity fund managers and their practitioners shall not engage in private equity fund business in 13 acts:
(1) Failing to separately manage, set up accounts, and conduct separate accounting for different private equity funds, mix its inherent property and other people’s property with private equity fund assets, mix and operate different private equity fund assets, or treat different private equity fund assets unfairly;
(2) Using the names and accounts of private equity fund managers and their affiliates to collect and pay fund assets on behalf of private equity funds;
(3) Carrying out or participating in fund pool business with features such as rolling issuance, collective operation, maturity mismatch, and separate pricing;
(4) For the purpose of arbitrating private equity fund assets, using private equity fund assets to directly or indirectly invest in private equity fund managers, holdingsshareholder, Self-integration behaviors such as the actual controller and the enterprise or project actually controlled by it;
(5) Treating different investors of the same private equity fund unfairly and harming the legitimate rights and interests of investors;
(6) The income of private equity funds is not linked to the assets, returns, risks, etc. of the investment project, including the actual operation that does not follow the investment targetPerformanceOr the income situation to investorsDividends, Payment of income, etc.;
(7) Direct or indirect embezzlement or misappropriation of private equity fund property;
(8) Fail to conduct investment operations or disclose information to investors in accordance with the contractual agreement;
(9) Taking advantage of the property or position of private equity funds, in the name of collecting consulting fees, handling fees, financial consulting fees, etc. from private equity funds, private equity fund investment targets and their related parties, to seek illegal benefits for themselves or for persons other than investors, Transfer benefits;
(10) Divulge undisclosed information that is conveniently obtained due to their position, use the information to engage in or express or imply that others are engaged in related trading activities;
(11) Engaging in insider trading, manipulating securities and futures markets and other improper trading activities;
(12) Dereliction of duty and failure to perform duties in accordance with regulatory provisions or contractual agreements;
(13) Other acts prohibited by laws, administrative regulations and the China Securities Regulatory Commission.
Interpretation: Compared with the draft for comments, the official draft has more detailed improvements, such as “paying interest” instead of “paying income”. The China Securities Regulatory Commission stated that the “Regulations” require private equity fund managers, custodians, sales agencies, other service agencies and practitioners to fulfill the obligations of honesty, credibility, prudence and diligence, uphold the principle of giving priority to investors’ legitimate interests, regulate related transactions, and prohibit funds Confusion of property, operation of fund pool, self-financing in violation of regulations, unfair treatment of fund property and investors, and other violations of laws and regulations.
12. Regulate related transactions of private equity funds
The “Regulations” state that private equity fund managers shall not engage in investment activities such as affiliated transactions that damage the property of private equity funds or the interests of investors.
Private equity fund managers shall establish and improve related-party transaction management systems, and regulate related-party transaction pricing methods and transaction approval procedures.
When using private equity funds to conduct transactions with related parties, private equity fund managers shall abide by laws, administrative regulations, China Securities Regulatory Commission and private equity fund contracts, prevent conflicts of interest, and obtain decisions approved by all investors or investors before investing The decision of the mechanism agrees that information should be fully disclosed to investors in a timely manner after investment.
Interpretation: Some private equity related transaction behaviors are not standardized, and there may be interest transmission, etc., which infringe on the interests of investors. Therefore, the supervision of related transaction behaviors should be regulated.
13. Emphasize the basic requirements of private equity information disclosure
The “Regulations” emphasize that the registration and filing information and other information materials submitted by private equity fund managers, their investors and actual controllers, private equity fund custodians, private equity fund sales institutions and other private equity fund service institutions shall not contain false records or misleading information Sexual statements or major omissions, and shall continue to perform information disclosure and reporting obligations in accordance with regulations to ensure that the information materials submitted are timely, accurate, truthful and complete.
Interpretation: timely and accurate information disclosure of private equity funds has always been a basic requirement for investors. This regulation emphasizes this content, which is conducive to safeguarding the interests of investors.
14. Clarify legal responsibilities and severely crack down on private equity violations
The “Regulations” stated that the China Securities Regulatory Commission and its dispatched agencies shall strictly supervise the private equity fund business activities of private equity fund managers, private equity fund custodians, private equity fund sales agencies, other private equity fund service institutions and their practitioners, and severely crack down on all types of private equity fund business activities. Violations of laws and regulations. For violations of these regulations, the China Securities Regulatory Commission and its dispatched offices may, in accordance with the provisions of the “Private Equity Measures”, take administrative supervision measures, market ban measures, impose administrative penalties, and record them in the Chinese capital market integrity information database; suspected crimes, Transfer to judicial organs for investigation of criminal responsibility in accordance with the law. If there are other provisions in the Securities Investment Fund Law and other laws and administrative regulations, they shall be handled in accordance with those provisions.
At the same time, the Fund Industry Association has carried out the registration of private equity fund managers and the filing of private equity funds in accordance with the law to strengthen self-discipline management and risk monitoring. The fund industry association can deal with violations of these regulations in accordance with laws and regulations.
Interpretation: The “Regulations” reiterate that private equity fund managers and practitioners should actively cooperate with supervision when engaging in private equity fund business. For those engaged in private equity fund business in violation of regulations, they shall comprehensively use administrative, self-discipline, judicial and other means to pursue relevant institutions and personnel legal liability.
15. Set up transition period arrangements and require deadline rectification
The “Regulations” point out that the registered private equity fund managers before the implementation of these regulations do not meet these regulations and shall be implemented in accordance with the following requirements:
(1) Those who do not comply with Article 4, Article 5, Article 6 (1) (9), and Article 11 of these regulations shall complete rectification within one year from the date of implementation of these regulations;
(2) Those who do not comply with the third paragraph of Article 6 of these regulations shall complete the rectification within six months from the date of implementation of these regulations, and suspend the raising and filing of new private equity funds during the rectification period;
(3) Those that do not comply with Article 6, Paragraph 1 (1) to (8), Article 6, Paragraph 1 (10), Article 7, Article 9, Article 12 , The China Securities Regulatory Commission and its dispatched offices can deal with it in accordance with Article 13 of these regulations, and the fund industry association can deal with it in accordance with laws and regulations;
(4) Those that do not comply with Articles 8 and 10 of these regulations shall not add new investments of this kind, increase the scale of fundraising, or add new investors, or extend the period, and liquidate the contract after it expires.
Interpretation: The formal draft is more detailed than the transition period arrangements in the draft. In order to smooth the transition, the “Regulations” classify and deal with the existing private equity fund managers who do not meet the requirements by implementing a division between the old and the new and setting a transition period. At the same time, appropriate differentiated supervision and self-discipline arrangements will be given to private equity fund managers who actively complete rectification ahead of schedule in light of the rectification situation.
(Source: China Fund News)
(Editor in charge: DF512)
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