論中國大陸有價證券私募之法制

Regulating Private Placements in China: A Principled Approach

本文旨在分析中國大陸目前有價證券私募法制，並提出修法建議。中國經濟發展在過去十年獲得高速增長。經濟發展提高了市場對於商品與服務的需求，也帶動了企業籌集資金之需求。同時，經濟發展創造了一批尋求投資機會的投資人。新興的投資人與經濟的高速增長促進了中國私募市場的發展。而中國於此之規範尚難稱完備，二○○五年證券法僅有基本規範，本文認為相關規範確有改進空間。本文認為，私募規範之設計必須權衡投資人保護、尋求投資機會與企業籌資效率等因素。藉由美國私募相關規範之優缺點分析，本文提供中國大陸制定相關規範之建議：──私募相關規範必須審慎評估損益。──私募規範必須明確清晰，使公眾容易理解以降低法規遵循成本。──法規解釋必須具有合理性，以符合文義解釋與立法解釋的邏輯性。本文認為，二○○五年中國證券法的私募相關規範過於模糊，國務院辦公廳於二○○六年所發布的「關於嚴厲打擊非法發行股票和非法經營證券業務有關問題的通知」並未解決問題。本文建議可從增加規範的可親近性、投資人教育、完善證券市場，以及避免資本市場管轄的多頭馬車等方向，創造更有效率的規範架構最後，本文從私募投資人資格之限制、籌資金額上限與資訊揭露與申報規範等面向，分析私募規範的成本與效益。

This article explores how China regulates private placements – the nonpublic sale of securities from issuers to investors. China's legal regime governing its private-placement market is still in its early stages. The 2005 Securities Law provides only a rudimentary legal framework for private placements, but market realities will require China to carefully consider whether it needs more detailed regulations of private placements. Over the past decade, China's economy has experienced remarkable growth. This economic prosperity has created an increased demand for goods and services, which generates the formation of businesses that require capital. Economic prosperity has also produced an investor class in China that seeks opportunities to invest its wealth. The rise of an investor class and the creation and growth of businesses with needs for capital are the underlying fundamentals of an active private-placement market. The regulation of private placements is no easy task. Ultimately, it requires balancing the benefits of protecting investors against the social costs of placing barriers between businesses seeking capital and investors looking for opportunities. However, these costs and benefits cannot be quantified regulators, this article briefly examines the strengths and weaknesses of U.S. private-placement regulation and suggests three general principles for approaching the regulation of private placements in China: Private-placement laws and interpretations must be based on a careful understanding and balancing of the costs and benefits of the proposed regulation. Private-placement laws must be drafted clearly and made easily accessible to the public to reduce compliance costs. Interpretations of laws must be intellectually legitimate – they must logically follow from the language and purpose of the law. This article also makes specific suggestions for Chinese securities regulators to consider. The most important of these suggestions is to clarify the current law. Unfortunately, the treatment of private placements in the 2005 Securities Law created ambiguities and uncertainties. To complicate matters, in 2006 a poorly conceived interpretive release by the Office of the State Council produced even more uncertainties. This article explores the source of the confusion in the law and makes concrete suggestions to remedy the problem. This article also suggests several other measures to help promote a more efficient private-placement market, including creating accessible regulation, providing education for investors, improving the public stock market, and preventing the development of multiple securities regulators. Finally, this article explores the benefits and costs of more traditional private placement regulatory approaches such as investor qualifications, limitations on the amount of capital that can be raised, and information and filing requirements.