契约型私募股权投资基金：Setup steps、合格投资者标准与登记备案要求

current，Domestic equity crowdfunding platforms are relatively more inclined to choose limited partnerships as investment entities，However, the rapid development of limited partnerships has also given rise to a lot of chaos.：The industrial and commercial departments in various places regulate the names of limited partnerships.、普通合伙人资格和有限合伙人入退伙条件等方面的认定标准不一，导致实践中存在大量利用阴阳两套合伙协议分别用于工商登记以及固定领投人与跟投人真实意思表示的情形；And in some areas，For example, Shenyang，工商部门已经不予受理含”invest”等字样的有限合伙企业的注册申请；Because local governments have different understandings and attitudes towards limited partnerships，The tax incentives granted to limited partnerships also vary widely.。With the "Notice on Cleaning up and Standardizing Preferential Policies such as Taxation" issued by the State Council in 2014 (Guofa [2014] No. 62), it has gradually exerted its efforts.，These local policies are in a very uncertain position。

Limited partnerships, which have been under a regulatory vacuum for a long time, have begun to face many restrictions.，And this restriction will become more and more stringent。But standardizing supervision cannot be achieved overnight.，It will take some time to digest these issues，this also means，Established at the present stage、Running a new limited partnership will face many uncertainties。In addition, the limited partnership is being established、manage、The costs of various aspects such as changes and cancellations are relatively high，Therefore, since the China Securities Regulatory Commission promulgated the "Interim Measures for the Supervision and Administration of Private Investment Funds" on August 21, 2014,，Contractual investment models have gradually become the focus of attention among industry insiders。

actually，The contractual investment model is not a new thing。The public funds adjusted under the "Securities Investment Fund Law" are established in accordance with the contract.，Trust plans account for most of the private equity investment funds、Fund company asset management plan、The same is true for brokerage asset management plans；Limited partnerships are only common among PE investment funds and nested investment funds.。

therefore，Contractual investment model is the normal form of various funds，Companies and partnerships are a special form of funds.。

From a legal perspective，The contractual investment model is established by leading investors、Based on the investment agreement signed by the investors and the equity crowdfunding platform。According to the investment agreement，Follow-up investors purchase private equity fund shares issued by the lead investor on the equity crowdfunding platform, etc.，After entrusting investment funds to the equity crowdfunding platform，loses the right to dispose and vote，Only enjoys the beneficial rights of the fund as a beneficiary；Lead investors serve as investment consultants for project funds，Playing the role of fund manager，The right to use contracted collective property for equity investment in one’s own name；Equity crowdfunding platform as custodian，Open independently accounted bank and securities accounts in the name of a single contract fund and conduct custody，And be independent from other fund property accounts。

Steps to set up a contractual private equity investment fund on an equity crowdfunding platform

证券投资基金业协会关于领投人登记和基金备案制度

根据《私募投资基金监督管理暂行办法》第五条规定，There is no administrative approval required for the establishment of private equity fund management institutions and the issuance of private equity funds.，Allow all types of issuers to issue products in compliance with laws and regulations，Issuance of private equity funds to a cumulative number of qualified investors not exceeding the number prescribed by law。

However, private equity fund managers must comply with the relevant provisions of laws and regulations such as Chapter 2 of the "Private Investment Fund Manager Registration and Fund Filing Measures (Trial)" and the "Interim Measures for the Supervision and Administration of Private Equity Funds"，Complete the registration of the manager and the filing of the fund，That is, apply for registration with the Asset Management Association and become a member of the association.，And after the fund raising is completed，Go through the filing procedures with the Asset Management Association。In addition, relevant information about managers and their employees must be updated regularly，Submit the investment operations and annual financial reports of the private equity funds under management, etc.。

Before the lead investor on the equity crowdfunding platform issues a contractual private equity investment fund to follow-up investors，It is also necessary to go through the registration procedures for fund managers on the official website of the Asset Management Association；After fund raising is completed，The lead investor should register the contractual equity investment fund with the Asset Management Association。

领投人必须满足合格投资者的条件

根据《私募投资基金监督管理暂行办法》第十二条的规定，Qualified investors are：Have corresponding risk identification capabilities and risk-taking capabilities，Units and individuals who invest no less than 1 million yuan in a single private equity fund and meet the following relevant standards：

1. Units with net assets of not less than 10 million yuan；
2. Individuals whose financial assets are not less than 3 million yuan or whose average annual income in the past three years is not less than 500,000 yuan。

Article 14 of the "Measures for the Administration of Private Equity Crowdfunding Financing (Trial) (Draft for Comments)"：私募股权众筹融资的投资者是指符合下列条件之一的单位或个人：

1. 《私募投资基金监督管理暂行办法》规定的合格投资者；
2. Units or individuals whose minimum investment amount in a single financing project is not less than RMB 1 million；
3. social security fund、Enterprise annuities and other pension funds，Charitable funds and other social welfare funds，and investment plans established in accordance with the law and registered with the Securities Investment Fund Industry Association of China；
4. Units with net assets of not less than RMB 10 million；
5. Individuals whose financial assets are not less than RMB 3 million or whose average annual income in the past three years is not less than RMB 500,000，In addition to being unable to provide relevant property, the above-mentioned individuals、In addition to proof of income，It should also be able to identify、Judge and bear corresponding investment risks；
6. Other investors specified by the Securities Industry Association。

The lead investor serves as the main investor of a single private equity investment fund，These conditions should be met。

关于跟投人的合格投资资格

由于《私募投资基金监督管理暂行办法》的监管对象主要是以投资组合为核心内涵的传统基金模式，Therefore, when defining standards for qualified investors,，没有兼顾股权众筹领域”领投+跟投”模式的特殊性，No differential treatment for qualified investors。

"Private Equity Crowdfunding Financing Management Measures (Trial) (Draft for Comments)" simply applies current practices on this issue，There is no distinction between the qualification standards for lead investors and follow-up investors.，This creates a real dilemma where standards are not only too high but also unreasonable，It is really a shortcoming in the technical aspects of supervision and legislation.。

but in practice，Classifying the eligibility criteria for lead investors and follow-up investors has become a common practice among equity crowdfunding platforms.，And this distinction is not limited to differences in financial status，It’s about the business philosophy of each platform、management mode、Target object and other parameters，Develop qualified investor standards that meet your own positioning。

This approach obviously has a greater potential for violation of regulations，A relatively realistic choice is，In setting the standards for qualified lead investors, we adhere to the provisions on qualified investors in the "Interim Measures for the Supervision and Administration of Private Equity Investment Funds" and the "Administrative Measures for Private Equity Crowdfunding Financing (Trial) (Draft for Comments)"，In setting the standards for qualified investors, we should appropriately incorporate the reasonable focus parameters of each platform.，In order to achieve the purpose of balancing practical effects and regulatory principles。

领投人与跟投人签订投资协议

仅需通过投资协议中的约定就能确定各方法律关系是契约型投资模式的最大优势，therefore，The investment agreement signed by the lead investor and all follow-up investors has become a top priority.。The specific content of the investment agreement needs to refer to Article 93 of the Fund Law and the relevant provisions of the Trust Law。

Through such a contract，The rights and obligations between the lead investor and follow-up investors are clarified，Contractual funds were legally born，investment decision、Post-investment management and exit mechanisms are determined，The principles and methods of benefit distribution are reflected，领投人的管理费用也得以约定。It is worth mentioning here that，契约型私募基金通常都采用类似承包的方式支付给领投人一笔固定的年度管理费用，如果领投人的年度管理费用超过了这笔数额，Investors will not pay additional。

Such an important legal document，Only by treating every detail carefully，To ensure that the entire investment plan is implemented legally and compliantly。

Lead investor、跟投人与股权众筹平台签订托管协议

Normally，The custody agreement exists in the form of custody clauses in the investment agreement，即投资协议由领投人、Signed jointly with investors and equity crowdfunding platforms，The scope of the platform’s rights and obligations as a custodian is directly listed in the investment agreement.；Of course, it can also be obtained with the consent of the investors in the individual contract-type investment plan.，The lead investor and the platform sign a separate custody agreement。

After signing the custody agreement，The platform should open independently accounted bank and securities accounts in the name of a single contract fund and conduct custody，And be independent from other fund property accounts。Although Article 21 of the "Interim Measures for the Supervision and Administration of Private Investment Funds"，”除基金合同另有约定外，Private equity funds should be managed by fund custodians。The fund contract stipulates that the private equity fund will not be held in custody，Institutional measures and dispute resolution mechanisms to ensure the safety of private equity fund property should be clearly stated in the fund contract.。”即可以通过投资协议排除托管，However, custody is an important way to distinguish the collective assets of a single investment plan from the assets of the lead investor.。If not hosted，Collective assets can easily be confused with the lead investor’s assets by regulators，thus denying the independence of collective property，And what this will mean for lead investors is，Whether investment risks can be effectively isolated between collective property and its own property，And whether the collective property and its investment income will be taxed as the property and income of the lead investor.，will be in a state of uncertainty。

From the perspective of maintaining capital security and protecting the interests of investors，The principal can be set in the contract structure、Institutional arrangement of three-party separation of trustee and custodian。As a trustee, the lead investor can issue instructions to use the funds，But it must comply with the provisions of the investment agreement，Otherwise, the custodian has the right to refuse any transfer of funds；on the contrary，If there is no special instruction from the lead investor，The custodian has no right to use the funds。

also，Supervisors can also be set up to supervise and restrict the management and use of funds.，This is another important institutional arrangement to ensure the safety of funds.。

Flexible exit mechanism，Strong liquidity

契约型投资模式的一大优势就是拥有灵活便捷的组织形式。Within the scope of legal compliance，Lead investors and co-investors are free to make various stipulations in the investment agreement，to meet the specific needs of both parties。实践中往往会将这一优势用于解决极为重要的退出机制上，That is, the investment agreement can have special clauses stipulating the investors’ flexible exit methods.，Because there is no mutually restrictive relationship between different investors in the same investment plan，Changes in some of the investors will not affect the validity of the investment plan.。

The original investors can transfer the beneficial rights at the purchase price through the equity crowdfunding platform.，to terminate the investment agreement，Withdraw funds；New investors can also invest on the platform by buying the beneficial shares from the original investors at the selling price.，Establish investment agreement relationship with lead investor。It is also more likely that shares of contractual funds will be allowed to be transferred through trading platforms in the future.，Will further improve the liquidity of fund shares。

关于税收

契约型私募股权投资基金同其他资产管理业务一样，There is currently no unified and clear tax policy on personal tax collection.，At present, we mainly refer to the "Notice on Tax Policies for Securities Investment Funds" (Finance and Taxation [2004] No. 78)、"Notice on Certain Preferential Policies for Corporate Income Tax" (Finance and Taxation [2008] No. 1)、"Ministry of Finance、State Administration of Taxation、Notice of the China Securities Regulatory Commission on Issues Concerning the Implementation of Differentiated Personal Income Tax Policies on Dividends and Bonuses of Listed Companies (Finance and Taxation [2012] No. 85) and other relevant laws and regulations.。

Contractual private equity investment fund as a collective property，No legal personality，Not considered a taxable entity，In practice, we always compare it with the asset management products issued on the market.，Including various trust products、Brokerage Asset Management Plan、Futures Asset Management Plan、Asset management plans of fund subsidiaries, etc.，Personal income tax is levied at a rate of 20%。due to trust company、Securities company、Futures Company、Fund subsidiaries, etc. will not withhold and pay personal income tax.，Instead, individual investors adopt the tax payment method of self-declaration.，Therefore, contractual private equity funds only need to distribute investment income，It is up to the beneficiary to declare and pay income tax on their own。

It is worth mentioning that，Tax blind spots for various asset management products，It is reported that the China Securities Regulatory Commission is also cooperating with the finance and taxation departments，It is hoped that this can promote the introduction of unified and clear tax policies.。

关于登记备案的若干维度

契约型股权众筹投资模式涉及四种不同类型的登记备案制度：Equity crowdfunding platforms need to register with the Securities Industry Association，Lead investors and funds need to register with the Asset Management Association，Investors, including lead investors and follow-up investors, need to register on the equity crowdfunding platform，also，It also involves the much-watched industrial and commercial registration filing.。

If investors’ registration on the equity crowdfunding platform solves the internal rights and obligations of investors,，Then the industrial and commercial registration filing solves the status issue of investors making external equity investments.。at present，Officials from the China Securities Regulatory Commission and the Asset Management Association have proposed in the public media，The China Securities Regulatory Commission is working hard to promote solutions for industrial and commercial registration of contractual funds as shareholders of unlisted companies.。

In practice, Suzhou、Industrial and commercial departments in Yancheng and other places learn from the practices of asset management plans and trust plans，Register the manager of the contractual fund as a shareholder of the unlisted company in which he invests，But it is the fund, not the manager, that actually enjoys shareholder rights.。This approach can certainly be replicated in the contractual equity crowdfunding investment model.，But we need to solve two problems：one，是否会给领投人带来潜在的税务风险？即如果工商部门将领投人登记为项目公司的股东，When a contractual investment plan receives dividends, interest or capital gains from the project company and exits，Will this part of the income be considered the income of the lead investor? Article 5 of the "Fund Law" has clearly stipulated that fund property is independent of the manager's own property.，The investment income obtained by the manager from the use of fund assets shall belong to the fund assets.，and cannot be attributed to the manager。therefore，As long as it can be ensured that the collective assets are not confused with the assets of the lead investor,，That's not a problem。Second，是否构成股权代持关系？是否适用隐名股东和显名股东的相关规定，Who has the final shareholder rights?

关于股权代持

in fact，The above method is not a typical equity holding relationship as defined by the Company Law.，Because the basic legal relationship of the contractual equity crowdfunding model is essentially a trust relationship。According to the definition of fiduciary relationship，The lead investor in the contractual equity crowdfunding model can completely raise funds in his or her own name，For the benefit of the beneficiary (investor) or for a specific purpose，Manage or dispose of entrusted property (contractual funds)。

therefore，The lead investor in his or her own name，Represent the contractual fund to hold the equity of the project company or the partnership share of the partnership，and exercise corresponding shareholder rights or partner rights in their own name on the premise of protecting the interests of investors.，Equity holdings based on contractual legal relationships，There are essential differences in the basic legal relationship。

Currently used by some industrial and commercial bureaus，A plan in which the contractual fund manager represents the contractual fund as a shareholder of a company or a partner of a partnership，does not violate trust law、company law、Legal rules determined by partnership law，Worth promoting in practice，And then copied to the field of equity crowdfunding。

If the name of the industrial and commercial registration can be expanded to：Contractual fund manager (held on behalf of contractual funds)，Intuitively, it is closer to the real legal status。This form has been adopted by industrial and commercial bureaus in some regions in the field of asset management planning and investment in private equity.，The asset management plan manager holds the company's equity on behalf of the asset management plan，The registered shareholder name is：Manager (held by the asset management plan)。

关于投资者人数上限

如果我说这个问题是最令私募投资从业者头痛的，I guess no one will object。

但这恰恰是契约型投资模式的优势所在。According to the guidance of the Asset Management Association on the registration and filing of private equity funds，The maximum number of investors in a contractual private equity fund is 200，The maximum number of investors in a limited partnership is only 50，This gap in the scope of fundraising is already quite large.，But compared with the essential characteristics of small-amount decentralization of Internet finance,，But it’s insignificant。

How to legally and compliantly exceed the final limit on fundraising，Probably the secret that all Internet financial practitioners most hope to get.，May as well make some friendly reminders here：According to the provisions of Article 13 of the "Interim Measures for the Supervision and Administration of Private Investment Funds"，”as a partnership、Contract and other unincorporated forms，Directly or indirectly invest in private equity funds by pooling funds from a majority of investors，Private equity fund managers or private equity fund sales agencies should conduct thorough verification to see whether the final investor is a qualified investor.，And combined to calculate the number of investors。but，Comply with paragraph (1) of this article、(two)、Investors specified in item (4) invest in private equity funds，No more penetrating verification of whether the final investor is a qualified investor and a consolidated calculation of the number of investors。”

前述三项规定的具体内容为：

1. social security fund、Enterprise annuities and other pension funds，Charitable funds and other social welfare funds；
2. An investment plan established in accordance with the law and registered with the Asset Management Association；
3. Other investors specified by the China Securities Regulatory Commission。

therefore，Contractual private equity investment funds registered with the Asset Management Association，Invest in private equity funds，No more penetrating verification and combined head count calculations。