【作者】 吕锦峯；

【导师】 徐杰；

【作者基本信息】 中国政法大学 ， 经济法学， 2008， 博士

【摘要】 我国私募基金或类似私募基金之运作存在许多问题,潜在可能发生的危机不容忽视,解决私募基金相关问题的首要任务便是将其规范化,本文之研究目的在于能够建立一套私募基金规范化的理论体系以作为将来立法之参考。第一章绪论,说明本文研究动机、目的、方法、范围以及整体论文研究架构。第二章私募基金概论,系在进入私募基金规范化具体课题讨论前,先就私募基金基本概念提出说明,包括私募基金的基本认识、与公募基金的比较分析、私募基金的缘起与发展、私募基金的制度价值、及私募基金的风险分析等,希望透过本章的说明对于私募基金有基本的认识与了解。第三章私募基金在我国的发展过程与存在的问题,本文采历史的研究方法,要有效合理规范我国目前盛行的私募基金,势必要运用历史的研究方法发现形成的原因、分析其发展的轨迹,从而得以依规范的研究方法决定私募基金的应然规范方式。因此本章即分就私募基金在我国的发展过程、产生的原因、存在的问题进行说明与讨论。第四章私募基金规范化基本理论,按私募基金的规范化课题包罗万象,在就各个课题研究之前,应就私募基金规范化的客观环境先为叙明。本文认为应就私募基金规范化的必要性进行剖析以了解其急迫性与重要性,也要评估规范私募基金对金融市场的影响,另外与私募基金相关之法律如《公司法》、《证券法》、《信托法》、《合伙企业法》,在将来规范化时是否能与私募基金顺利衔接也是本章关切的重点,最后并提出私募基金规范化的策略作为本文立论的中心思想。第五章私募基金界定标准的规范化,私募基金规范化的首要课题就是如何界定私募基金,本文藉由美国、台湾地区立法例的介绍,并参考我国过去相类似的规范定义提出规范的建议。第六章私募基金组织形式的规范化,本文将依序介绍国际上私募基金通常采取之组织形式,有契约制、公司制、及有限合伙制,并对该等制度进行比较,最后并提出建议。第七章私募基金运作的规范化,本章分就私募基金份额转让之限制,私募基金的投资对象、范围与方法,及私募基金投资风险及利益的分配依序说明。私募基金发行后,基金份额若可自由转让而不加以限制,则私募基金实质上将变成公募基金,但完全禁止又令投资人裹足不前,因此应就基金份额转让明文规范,此外私募基金投资方式通常较公募基金灵活而有弹性,是否应采取完全放任的态度亦为本文讨论的重点,最后讨论私募基金投资风险与利益的分配。第八章私募基金行政监管的规范化,基于私募基金的特性及与公募基金的差异,私募基金的监管本应自成一格,而非全盘参照公募基金的监管方式,因此本章分节就私募基金行政监管原则、行政监管主体、及具体监管内容进行研究与说明,以作为私募基金行政监管规范化之参考。第九章结论,即就本文提出综合性的总结,建议我国立法机关应从速考虑私募基金规范化的必要性与迫切性,并对私募基金规范化的各个具体课题提出建议。更多还原

【Abstract】 Many problems exist in the running of privately offered funds or quasi-privately offered funds in China,and the potential dangers of these funds cannot be ignored.The most important task in solving these problems is to regulate and standardize the funds.The objective of this paper is to formulate a theoretical framework for standardization of privately offered funds for future legislative purposes.Chapter One is "Introduction",providing an explanation of the motivation for this paper,the objectives,methods,scope of study,and the overall structure of this study.Chapter Two is "Overview of Privately Offered Funds".Before embarking on substantive discussions about standardization of privately offered funds,this chapter first offers an overview of fundamental concepts of such funds,including basic characteristics of such a fund,comparisons with publicly offered funds,the background and development of privately offered funds,systematic value of privately offered funds,and risk analysis. It is hoped that this chapter will enable readers to acquire a basic understanding of privately offered funds.Chapter Three is "Development and Existing Issues of Privately Offered Funds in China".This paper adopts the historical analysis method.In order to regulate currently highly popular privately offered funds in a reasonable manner,it is necessary to apply the historical analysis method to uncover the reasons for the creation of such funds,analyze the path of their development,and thereby determine the reasonable structure of regulation based on the standardized method of study.This chapter therefore offers explanations and undertakes a discussion of the development process,reasons for creation,and existing problems regarding privately offered funds in China. Chapter Four is "Basic Theories for Standardization of Privately Offered Funds".There are innumerous issues relating to standardization of privately offered funds,and before studying these issues in detail,one should first describe the objective environment for standardization of privately offered funds.It is the view of the author that one must first consider the necessity of standardizing privately offered funds,and determine its urgency and importance,as well as evaluate the impact of standardizing privately offered funds on the financial market.This chapter also considers whether existing laws relevant to privately offered funds,such as the Company Act,Securities Act,Trust Act and Partnership Businesses Act,can be smoothly integrated with standardization of privately offered funds in the future.Finally this chapter proposes a strategy for standardization of privately offered funds as the central focus of this thesis.Chapter Five is "Standardizing Definition of Privately Offered Funds". The primary issue in standardizing privately offered funds is the definition of such funds.Using legislative examples from Taiwan and the United States,as well as examples of definitions previously used in China,this chapter offers a number of suggestions for standardization.Chapter Six is "Standardizing Organization of Privately offered funds". This chapter will describe the types of organizations commonly adopted by privately offered funds around the world,including funds by contract,by company,and by limited partnerships.The author also compares these different systems before offering suggestions for standardization.Chapter Seven is "Standardizing Operation of Privately Offered Funds".This chapter describes the limitations on transfer of privately offered fund units,investment subjects of such funds,scope and manner of investment,investment risk of these funds,and the distribution of gains. If units of a privately offered fund can be freely transferred without restriction after the initial issue,then they would effectively become publicly offered funds;on the other hand,a total ban on transfer would deter investors.It is therefore necessary to expressly regulate transfer of fund units.Generally investments made by privately offered funds also tend to be more flexible than publicly offered funds,and this chapter considers whether regulators should allow such complete flexibility. Finally this chapter also takes a look at investment risks and distribution of gains of privately offered funds.Chapter Eight is "Standardizing Administrative Regulation of Privately offered funds".Given the unique characteristics of privately offered funds and their differences with publicly offered funds,it is reasonable that their regulation would differ from that of publicly offered funds.Accordingly, this chapter studies and describes the principles,governmental authorities, and focus of administrative regulation of privately offered funds,as basis for standardization of administrative regulation for privately offered funds.Chapter Nine is "Conclusion",being an overall conclusion to the issues considered in this paper.It is recommended that legislative organs in China should study the necessity and urgency of standardizing privately offered funds as soon as possible,and this paper also offers suggestions for various substantive issues regarding standardization of privately offered funds.更多还原