私募投资基金监督管理暂行办法（英文版）（2014-8-21）

 
Promulgating Institution:

China Securities Regulatory Commission

 
Document Number:

Decree No.105 of the China Securities Regulatory Commission

 
Promulgating Date:

08/21/2014

Effective Date:

08/21/2014

Validity Status:

Valid

Chapter 1: General Provisions

Article 1             These Measures are formulated pursuant to the Law of the People's Republic of China on Securities Investment Funds and the Several Opinions of the State Council on Further Promoting the Healthy Development of the Capital Market, with a view to regulating the activities relating to privately-raised investment funds, protecting the legitimate rights and interests of investors and the parties concerned, and promoting the healthy development of the industry of privately-raised investment funds.

Article 2             For the purpose of these Measures, privately-raised investment funds (hereinafter referred to as the "Privately-raised Funds") shall refer to the investment funds established by way of raising capitals from investors in a non-public manner within the territory of the People's Republic of China.

Investment that may be made with the assets of Privately-raised Funds shall include trading stocks, equities, bonds, futures, options, fund units and other underlying investments agreed upon in investment contracts.

These Measures shall apply to the registration, record-filing, fund raising, investment and operation activities of a company or partnership enterprise that is established by way of non-public fund-raising for the purpose of engaging in investment activities, if its assets are managed by a fund manager or general partner.

These Measures shall apply to the business of Privately-raised Funds of securities companies, fund management companies, futures companies and their subsidiaries. If otherwise stipulated under other laws or the relevant provisions of the China Securities Regulatory Commission (hereinafter “CSRC”) on the business of Privately-raised Funds of the above institutions, the provisions thereof shall be applicable.

Article 3             Whoever engages in the business of Privately-raised Funds shall follow the principles of voluntariness, fairness, honesty and good faith, safeguard the legitimate rights and interests of investors, and refrain from prejudicing national interests and public interests.

Article 4             The principles of strict adherence to duties, good faith, prudence and due diligence shall apply to the managers of Privately-raised Funds and institutions engaging in the custody business of Privately-raised Funds (hereinafter referred to as the "Custodian of Privately-raised Funds") in their management and use of the assets of Privately-raised Funds, and to institutions engaging in the sales of Privately-raised Funds (hereinafter referred to as the "Institution Selling Privately-raised Funds") and other service institutions for Privately-raised Funds in their service activities related to Privately-raised Funds.

Practitioners engaging in the business of Privately-raised Funds shall comply with laws and administrative regulations, and abide by professional ethics and code of conduct.

Article 5             The China Securities Regulatory Commission ("CSRC") and its local offices shall conduct supervision and administration of the business activities relating to Privately-raised Funds in accordance with the Law of the People's Republic of China on Securities Investment Funds, these Measures and other relevant provisions of the CSRC.

The establishment of management institutions of Privately-raised Funds and the issuance of Privately-raised Funds are not subject to administrative examination and approval. All types of issuers are allowed to issue Privately-raised Funds to a cumulative number of investors not exceeding the number specified by laws on the basis of compliance with laws and regulations. It is imperative to establish and improve the regulatory system for the issuance of Privately-raised Funds, effectively reinforce in-process and ex post regulation, and severely crack down on all types of illegal fund-raising activities under the disguise of Privately-raised Funds pursuant to the law.

Risk control and self-disciplinary management systems shall be developed to push business institutions to carry out the business related to Privately-raised Funds in a standardized manner, and a unified monitoring system shall be established for all types of Privately-raised Funds.

Article 6             The Asset Management Association of China (hereinafter referred to as the "AMAC") shall, in accordance with the Law of the People's Republic of China on Securities Investment Funds, these Measures, other relevant provisions of the CSRC and its own self-disciplinary rules, conduct self-disciplinary management of the industry of Privately-raised Funds, coordinate industry relations, provide industry services, and promote industry development.

Chapter 2: Registration and Record-filing

Article 7             A manager of Privately-raised Funds of any type shall, in accordance with the provisions of the AMAC, apply for registration to the AMAC and submit the following basic materials:

(1)          Photocopies of the originals and duplicates of its industrial and commercial registration certificate and business license;

(2)          Its articles of association or partnership agreement;

(3)          The list of its major shareholders or partners;

(4)          Profiles of its senior management personnel; and

(5)          Other materials required by the AMAC.

The AMAC shall, within 20 working days after a manager of Privately-raised Funds has submitted all required registration materials, complete the registration formalities therefor by way of announcing the list of managers of Privately-raised Funds and the profile of the said manager via AMAC's website.

Article 8             After the fund-raising of a Privately-raised Fund of any type is completed, the manager of the Privately-raised Fund shall, in accordance with the provisions of the AMAC, go through the record-filing procedures for the Privately-raised Fund, and submit the following basic materials:

(1)          Information on the main investment direction of the Privately-raised Fund and its fund category indicated according to the main investment direction;

(2)          The fund contract and the articles of association or partnership agreement of the company. The fund prospectus shall also be submitted if it has been provided for investors during fund-raising. Where the Privately-raised Fund is established in the form of an enterprise, such as a company or partnership, the industrial and commercial registration and photocopies of the original and duplicate of the business license shall also be submitted;

(3)          Where the Privately-raised Fund is placed under entrusted management, the agreement on entrusted management shall be submitted. Where the properties of the Privately-raised Fund are entrusted to a custodian, the agreement on custody shall also be submitted; and

(4)          Other materials required by the AMAC.

The AMAC shall, within 20 working days after all the required record-filing materials of a Privately-raised Fund have been submitted, complete the record-filing formalities for the Privately-raised Fund by way of announcing the list of Privately-raised Funds and the basic information of the said fund via AMAC's website.

Article 9             The record-filing and registration by the AMAC of Privately-raised Funds and their managers are not indicative of its recognition of the investment capacity and ongoing compliance of the managers of Privately-raised Funds, and shall not constitute any guarantee of the security of fund properties.

Article 10          Where a manager of Privately-raised Funds is dissolved, cancelled or declared bankrupt pursuant to the law, its legal representative or general partner shall report relevant information to the AMAC within 20 working days, and the AMAC shall promptly deregister the said manager and announce the deregistration on its website.

Chapter 3: Qualified Investors

Article 11          Privately-raised Funds shall be raised only from qualified investors. The cumulative number of investors of a single Privately-raised Fund shall not exceed that specified by the Law on Securities Investment Funds, the Company Law, the Partnership Law and other laws.

Where an investor transfers fund units, the transferees shall be qualified investors, and the number of investors after the transfer shall still be in compliance with the preceding paragraph.

Article 12          A qualified investor of Privately-raised Funds shall refer to an entity or individual that has the appropriate capability of risk identification and risk tolerance, that invests at least RMB 1 million in a single Privately-raised Fund, and that meets any of the following standards:

(1)          The qualified investor, if it is an entity, shall have net assets of not less than RMB 10 million; or

(2)          The qualified investor, if being a natural person, shall have financial assets of not less than RMB 3 million or average annual personal income of not less than RMB 500,000 in the past three years.

For the purpose of the preceding paragraph, financial assets shall include bank deposits, stocks, bonds, fund units, asset management schemes, bank wealth management products, trust schemes, insurance products, futures interests, etc.

Article 13          The following investors shall be deemed as qualified investors:

(1)          Social security funds, enterprise annuities and other pension funds, the charitable fund and other social non-profit funds;

(2)          Duly-established investment schemes that have been filed with the AMAC;

(3)          Managers of Privately-raised Funds and their practitioners who invest in the Privately-raised Funds under their management; and

(4)          Other investors prescribed by the CSRC.

Where the investment in the Privately-raised Funds is directly or indirectly made through pooling the funds of multiple investors in unincorporated forms such as partnership or contract, Managers of Privately-raised Funds and Institutions Selling Privately-raised Funds shall penetrate the investment to review whether the ultimate investor is qualified investor or not and calculate in a consolidated manner the number of investors, provided however the investment in the Privately-raised Funds made by the investors meeting the requirements in the above Item (1), (2), (3) and (4) will not be subject to the penetrating review on whether the ultimate investor is qualified investor or not and the consolidated calculation of the number of investors.

Chapter 4: Fund-Raising

Article 14          Managers of Privately-raised Funds and Institutions Selling Privately-raised Funds are not allowed to engage in any of the following activities: raising capitals from entities and individuals other than qualified investors; or, promoting Privately-raised Funds to non-specific investors through newspapers, periodicals, radio, television, the Internet and other public media, or by way of lectures, seminars or analysis forums, notices or blogs, leaflets, SMS or WeChat messages or emails, etc.

Article 15          Managers of Privately-raised Funds and Institutions Selling Privately-raised Funds shall not make commitments to investors that their investment is principal-protected or guaranteed with minimum returns.

Article 16          A manager of Privately-raised Funds that sells Privately-raised Funds on its own shall use questionnaires or adopt other means to assess the ability of an investor to identify and tolerate risks, let the investor undertake in writing that it meets the requirements of a qualified investor, and prepare a written risk disclosure which shall be signed by the investor as confirmation.

Where a manager of Privately-raised Funds entrusts a sales institution with the sales of Privately-raised Funds, the Institution Selling Privately-raised Funds shall take the assessment, confirmation and other measures prescribed by the preceding paragraph.

The guidelines on the contents and formats of the written risk disclosure and the questionnaire for assessing investors' capability of risk identification and tolerance shall be formulated by the AMAC according to the characteristics of different types of Privately-raised Funds.

Article 17          Regardless of whether it sells Privately-raised Funds on its own or by entrusting a sales institution, a manager of Privately-raised Funds shall conduct risk rating of the Privately-raised Funds by itself or by entrusting a third-party institution, and recommend Privately-raised Funds to investors with corresponding risk identification and risk bearing capability.

Article 18          An investor shall truthfully fill out the questionnaire for assessing investors' capability of risk identification and tolerance, issue a truthful undertaking on its assets or incomes, and be responsible for the truthfulness, accuracy and completeness thereof. An investor who fills out false information or provides false undertakings shall be held liable accordingly.

Article 19          An investor shall ensure that its investment funds come from legitimate sources, and shall not illegally pool the funds of others to invest in Privately-raised Funds.

Chapter 5: Investment Operations

Article 20          A fund contract and articles of association or partnership agreement (hereinafter collectively referred to as the "Fund Contract") shall be prepared and concluded in raising a privately-raised securities fund. The Fund Contract shall be in compliance with Article 93 and Article 94 of the Law of the People's Republic of China on Securities Investment Funds.

In raising Privately-raised Funds of other types, the Fund Contracts shall, by reference to Article 93 and Article 94 of the Law of the People's Republic of China on Securities Investment Funds, specify the rights and obligations of the parties concerned, and other related matters.

Article 21          Unless otherwise agreed upon in its Fund Contract, a Privately-raised Fund shall be placed under the custody of a fund custodian.

Where it is agreed in the Fund Contract that the Privately-raised Fund shall not be placed under custody, the systems and measures for safeguarding the security of the assets of the Privately-raised Fund and the dispute resolution mechanisms shall be specified in the Fund Contract.

Article 22          A manager of Privately-raised Funds that manages several different categories of Privately-raised Funds shall adhere to the principle of specialized management and a manager that manages different Privately-raised Funds which may lead to interest transfer or interest conflict shall set up the mechanism of preventing interest transfer and interest conflict.

Article 23          Managers of Privately-raised Funds, Custodians of Privately-raised Funds, Institutions Selling Privately-raised Funds and other service institutions for Privately-raised Funds, as well as their practitioners shall not commit any of the following acts when engaging in the business of Privately-raised Funds:

(1)          Mixing their proprietary assets or the assets of others with fund assets for investment activities;

(2)          Treating the assets of different funds under management in an unfair manner;

(3)          Taking advantage of fund assets or their positions to seek benefits for, or transfer benefits to, themselves or persons other than investors;

(4)          Encroaching on or misappropriating fund assets;

(5)          Divulging undisclosed information obtained by virtue of their positions, or making use of such information to engage in, or expressly ask or imply others to engage in, related trading activities;

(6)          Engaging in investment activities detrimental to fund assets and investor interests;

(7)          Neglecting duties, or failing to perform duties as required;

(8)          Engaging in insider trading, manipulating trading prices and conducting other improper trading activities; or

(9)          Committing other acts prohibited by laws, administrative regulations and the provisions of the CSRC.

Article 24          Managers of Privately-raised Funds and Custodians of Privately-raised Funds shall, in accordance with relevant contracts, truthfully disclose to investors fund investments, assets and liabilities, investment return distribution, the expenses borne by such funds and performance rewards, potential conflict of interest and other material information that may affect the legitimate rights and interests of investors, and shall not conceal the required information or provide false information. Information disclosure rules shall be separately formulated by the AMAC.

Article 25          A manager of Privately-raised Funds shall, in accordance with the provisions of the AMAC, promptly fill out and regularly update the information concerning itself and its practitioners and the information on the investment operations and use of leverage of the Privately-raised Funds under management, and ensure the truthfulness, accuracy and completeness of the information submitted. The said manager shall report any material event to the AMAC within ten working days.

A manager of Privately-raised Funds shall, within four months following the end of each fiscal year, submit to the AMAC the annual financial report audited by an accounting firm and the basic information on the annual investment operations of the Privately-raised Funds under management.

Article 26          Managers of Privately-raised Funds, Custodians of Privately-raised Funds and Institutions Selling Privately-raised Funds shall properly keep the records and other relevant materials in terms of the decision-making, trading, investor suitability management and other aspects of Privately-raised Funds for at least ten years upon the liquidation and termination of such funds.

Chapter 6: Industry Self-discipline

Article 27          The AMAC shall establish a management information system for the registration of managers of Privately-raised Funds and the record-filing of Privately-raised Funds.

The AMAC shall strictly keep confidential the information on managers of Privately-raised Funds and the information on Privately-raised Funds themselves, and shall not disclose such information to external parties unless otherwise prescribed by laws and regulations.

Article 28          The AMAC shall establish an information sharing mechanism with the CSRC and its local offices and other relevant institutions, regularly summarize and analyze the situations of Privately-raised Funds, and promptly provide information on Privately-raised Funds.

Article 29          The AMAC shall formulate and enforce self-disciplinary rules for the industry of Privately-raised Funds to supervise and inspect the practices of members and their practitioners.

Where a member and its practitioners violate laws, administrative regulations, these Measures or the self-disciplinary rules of the AMAC, the AMAC may take self-disciplinary management measures depending on the severity of the circumstances, and make public relevant illegalities and irregularities via its website. Where a member and its practitioners are suspected of violating laws and regulations, the AMAC shall promptly report relevant situations to the CSRC.

Article 30          The AMAC shall establish a complaint handling mechanism to accept investor complaints and mediate disputes.

Chapter 7: Supervision and Administration

Article 31          The CSRC and its local offices shall, pursuant to the law, conduct statistical monitoring and inspection of the business of Privately-raised Funds carried out by managers of Privately-raised Funds, Custodians of Privately-raised Funds, Institutions Selling Privately-raised Funds and other service institutions for Privately-raised Funds, and take relevant measures in accordance with Article 114 of the Law of the People's Republic of China on Securities Investment Funds.

Article 32          The CSRC shall include the credit information of managers of Privately-raised Funds, Custodians of Privately-raised Funds, Institutions Selling Privately-raised Funds and other service institutions for Privately-raised Funds into the database of securities and futures market credit files, and conduct differentiated regulation based on the credit standings of the managers of Privately-raised Funds.

Article 33          Where managers of Privately-raised Funds, Custodians of Privately-raised Funds, Institutions Selling Privately-raised Funds and other service institutions for Privately-raised Funds, as well as their practitioners violate laws, administrative regulations and these Measures, the CSRC and its local offices may order the parties concerned to make correction, arrange regulatory talks with, or issue warning letters to, the parties concerned, publicly reprimand the parties concerned, or take other administrative regulatory measures.

Chapter 8: Special Provisions on Venture Capital Funds

Article 34          For the purpose of these Measures, venture capital funds shall refer to the equity investment funds that mainly invest in the ordinary shares, preference shares convertible to ordinary shares by law, convertible bonds and other interests of unlisted start-up enterprises.

Article 35          Venture capital funds shall be encouraged and guided to invest in small and micro enterprises in the early stage of business start-up.

Article 36          The AMAC shall conduct industry self-disciplinary management of venture capital funds by ways different from those applicable to other Privately-raised Funds in terms of the registration of fund managers, the record-filing of funds, investment reporting requirements, member management and other aspects, and provide differentiated member services.

Article 37          The CSRC and its local offices shall conduct supervision and administration of venture capital funds by ways different from those applicable to other Privately-raised Funds in terms of investment direction inspection and other aspects, and provide convenient services for venture capital funds in terms of account opening, issuance and trading, investment exit, etc.

Chapter 9: Legal Liabilities

Article 38          Managers of Privately-raised Funds, Custodians of Privately-raised Funds, Institutions Selling Privately-raised Funds and other service institutions for Privately-raised Funds, as well as their practitioners shall be ordered to make correction, and be given a warning and concurrently a fine of up to RMB 30,000 if they violate Article 7, Article 8, Article 11, Article 14 through to Article 17, or Article 24 through to Article 26 herein, or if they commit any of the acts listed in Item (1) through to Item (7) or Item (9) of Article 23 herein; the principals directly in charge and other directly responsible personnel shall be given a warning and concurrently a fine of up to RMB 30,000; those who commit the acts listed in Item (8) of Article 23 herein shall be punished in accordance with the Securities Law and the Regulations for the Administration of Futures Trading; where criminal offenses are constituted, the cases shall be referred to judicial organs for investigation of criminal liabilities pursuant to the law.

Article 39          Where managers of Privately-raised Funds, Custodians of Privately-raised Funds, Institutions Selling Privately-raised Funds and other service institutions for Privately-raised Funds, as well as their practitioners commit grave violations of laws, regulations and these Measures, the CSRC may take the measure of barring the relevant responsible persons from market entry pursuant to the law.

Article 40          Managers of privately-raised securities funds and their practitioners that commit violations of the Law of the People's Republic of China on Securities Investment Funds shall be punished in accordance with the Law of the People's Republic of China on Securities Investment Funds.

Chapter 10: Supplementary Provisions

Article 41          These Measures shall come into effect as of the date of promulgation.

[1] Translated by Llinks Law Offices.