中國私募基金法律問題研究 —— 以近五年中級以上法院民事訴訟裁判文書為樣本

Abstract

As a financial activity originated in the west, private equity fund has developed rapidly in China in recent years. As an important financing tool, it not only plays a strong role in the capital market, but also shows high risk. The author searched and analyzed all 6591 civil and commercial adjudication documents including "private funds" on the China adjudication document network. In the past five years from 2017 to 2021, private fund cases accounted for 97% of all cases. Especially after 2018, cases increased explosively, accounting for 79.6% in recent three years, showing the characteristics of high incidence of litigation disputes, regional concentration, diversified distribution of causes of cases and typical disputes. The basic legal relationship of private placement fund is trust relationship. Its operation involves multiple links of raising, investment, management and withdrawal, and multiple subjects of investors, fund managers, fund custodians, target companies and fund service institutions. The legal relationship presents complexity and diversity. In reality, the system of laws and regulations on private equity funds is not perfect, the judgment views on many issues in judicial practice are not unified, and the relationship between administrative supervision and judicial judgment needs to be clarified, which brings difficulties to the judicial judgment of private equity funds. Taking the civil judgment documents of intermediate and higher courts in recent five years as the analysis sample, the author combs the relevant legal issues and judicial views in the stages of raising, investment, management and withdrawal. In the stage of raising, the author believes that the concept of appropriateness obligation should be clearly introduced into the law, the connotation should be clear, and the contracting fault, tort liability should be borne respectively in different cases of violating this obligation; Different violations and different situations of violations in the raising concentration can lead to the termination or invalidity of the contract respectively; The raising and sales institution, the manager and the custodian shall bear their respective responsibilities according to their respective obligations. In the investment stage, focusing on the "famous shares and real debts" involved in the foreign investment of private equity funds, this paper puts forward five steps to distinguish the nature of equity and creditor's rights; For the "gambling clause", it is considered that the signing subject and the type of agreement have different effects on the effectiveness of the contract; The effectiveness of the "minimum guarantee clause" should be recognized differently from its subject, content and nature. In the management stage, it is considered that the fiduciary duty and management responsibility should be systematically constructed, and the responsibility boundary should be delimited according to the different positions, responsibilities and responsibilities of managers and custodians in fund operation; The custodian and the manager are not in a joint fiduciary relationship. In principle, they are responsible for their respective actions. In the withdrawal stage, it is proposed to be divided into two stages: the withdrawal of private equity funds from investment projects, the private equity investors from the withdrawal of private equity funds, and the withdrawal of three types of funds: contract type, partnership type and company type. The withdrawal of each type of private equity funds needs to be analyzed separately according to their respective organizational structure. The current prominent problems are first reflected in the procedural problems, which need to be solved from the perspective of the improvement of laws and regulations. Finally, the author believes that we should improve the construction of civil legal liability system of private equity funds, and suggest improving legislation and updating the concept of trial; In the trial of the case, respond to the regulatory policy in a legal way.

Date of Award	10 May 2023
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Chi Hin Peter CHAN (Supervisor)