I. Concept definition
According to Article 2 of the Interim Measures for the Supervision and Administration of Private Investment Funds promulgated by China Securities Regulatory Commission, private equity funds are investment funds set up by raising funds from investors in a non-public way, and their investment scope includes buying and selling stocks, equity, bonds, futures, options, fund shares and other investment targets agreed in investment contracts. In the specific operation mode, investors usually set up entity enterprises in accordance with the Company Law or the Partnership Enterprise Law, and once they contribute, they become shareholders or partners, and the raised funds are generally invested and used by private fund management companies. The crime of illegally absorbing public deposits is stipulated in Article 176 of China's current criminal law, especially the act of illegally absorbing public deposits or absorbing public deposits in disguise, disrupting financial order. Generally speaking, the work of absorbing public deposits can only be done by banks. If you rob a bank, you may be labeled as illegally absorbing public deposits. Conceptually speaking, legal private placement and illegal absorption of public deposits belong to different fields, but it is precisely because private placement enterprises have the industrial function of legal fund-raising, in practice, there are often some cases of illegal absorption of public deposits under the guise of private placement enterprises or some private placement enterprises operate irregularly.
Second, the difference of concrete expression.
1. Ways of raising funds Article 2 of the Interim Measures for the Supervision and Administration of Private Equity Investment Funds stipulates that private equity enterprises can only raise funds in a non-public way, and Article 14 stipulates: "Private equity fund managers and private equity fund sales institutions shall not raise funds from units and individuals other than qualified investors, nor through newspapers, radio, television, the Internet and other public media or lectures, reports, analysis meetings, notices, leaflets and so on. The illegal absorption of public deposits is often through publicity and promotion to the society to induce investors to invest. As for what is meant by "publicity to the society", article 1 of the Supreme People's Court's Interpretation on Several Legal Issues in the Trial of Criminal Cases of Illegal Fund-raising (hereinafter referred to as "Several Explanations") lists publicity through the media, promotion meetings, leaflets, mobile phone messages and other means. In addition, Article 2 of the Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Illegal Fund-raising (hereinafter referred to as the Opinions) jointly issued by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security further points out that "opening to the public" includes spreading the information of absorbing funds to the public through various channels and letting it spread while knowing that the information of absorbing funds has been spread to the public. This general description is actually an open attitude towards "making it public".
2. The non-public nature of the fundraising methods of private equity enterprises with minimum standards for fundraising objects and investments determines that they can only target specific qualified investors. Article 12 of the Interim Measures for the Supervision and Administration of Private Equity Funds stipulates: "Qualified investors of private equity funds refer to units and individuals with corresponding risk identification and risk-taking ability, with the investment amount of a single private equity fund not less than10 million yuan and meeting the following relevant standards: (1) The net assets are not less than10 million yuan. (2) Individuals whose financial assets are not less than 3 million yuan or whose average annual income in the last three years is not less than 500,000 yuan. " In other words, only investors who meet the above conditions can become legal private investors. The openness of illegally absorbing public deposits determines that it is open to the public, and there is often no investment threshold, and everyone comes. As for what is "social public", Article 1 of Several Explanations defines it as "socially unspecified object", and points out that "what has not been publicized to the society does not belong to illegally absorbing public deposits or absorbing public deposits in disguised form", but Article 3 of Several Opinions makes an exception to this kind of "specific object", which stipulates that "(1) and (2) are 3. Risk-taking model In legal private placement, the fundraiser and the investor are the same subject of interest risk, and the fundraiser must fully disclose the investment risk to the investor and must not promise fixed income. However, in the act of illegally absorbing public deposits, fund-raisers often try their best to avoid the risk warning, promise or sign an agreement with investors, promise to repay the principal at maturity with high interest and fixed income returns, so as to induce investors to contribute, and investors do not need to bear risks at least in name. 4. Number of investors According to the current company law in China, a limited liability company is established with less than 50 shareholders and 2-200 promoters. However, according to the provisions of the Partnership Enterprise Law, the number of partners in a partnership enterprise shall not exceed 50, and the legal private investors shall not exceed the above-mentioned restrictions on the number of companies and partnerships. However, investors who illegally absorb public deposits often have no upper limit, and the actors pursue the effect of "the more the better". For example, the above-mentioned case of Shuohua illegally absorbing public deposits from China Equity Investment Fund Management Co., Ltd. involved more than 4,000 investors, and the amount of illegally absorbing public deposits reached 580 million yuan.
Third, joint illegal private placement and its boundary with the crime of illegally absorbing public deposits.
The similarity between legal private placement and illegal absorption of public deposits lies in fund-raising behavior, and the key to the boundary between them depends on whether the behavior mode and degree are prohibited by China's criminal law and related judicial interpretations. The common behaviors that easily constitute the crime of illegally absorbing public deposits mainly include the out-of-control publicity scope and publicity target in the process of fund-raising, the behavior of holding shares on behalf of multiple shareholders or partners, and the promise of paying returns in disguise.
(1) Expand the scope and target of publicity and transform it into public publicity. It is forbidden to publicize to the society through media promotion meetings, leaflets, mobile phone text messages, etc. In the act of illegally absorbing public deposits, in practice, private fund managers or marketers often use online publicity, exchanges between relatives and friends, lectures and seminars. , making it difficult for fund managers to fully control the scope and object of publicity. Once they get out of control and meet the behavioral characteristics of public propaganda to unspecified objects, it is possible.
(2) The number of shareholders or actual investors in the "parent fund" exceeds the limit. Holding shares on behalf of investors refers to the situation that an investor gathers the funds of multiple investors to participate in private placement in his own name in order to avoid the number limit of companies and partnerships or meet the minimum capital contribution standard. The form of "parent fund with fund" generally means that the fund manager first establishes a fund company or partnership (parent fund) to absorb funds, and at the same time, in order to avoid the limitation of the number of companies and partnerships, several other fund companies or partnerships (sub-funds) are established to absorb funds. On the surface, the parent fund and the sub-fund have not exceeded the number limit alone, but the total number of investors has exceeded the upper limit. The above two forms are common in practice, but they also bring huge legal risks to the operation of private equity enterprises. Once the number of investors exceeds the upper limit, it is easy to be suspected of raising funds from unspecified objects, which may constitute the crime of illegally absorbing public deposits.
(3) Commitment to pay a fixed return in disguised form is one of the necessary conditions for the crime of illegally absorbing public deposits. In practice, in order to expand capital under the background of financing difficulties, some private investors often make a fuss about fixed income, which shows the past income performance of the fund to investors or uses words such as "expected income". However, in criminal judicial practice, judicial organs generally emphasize substance over form. Once the disguised practice of promising to pay a fixed return is confirmed, it is very likely to violate the illegal absorption of the public. Of course, there is not an either-or relationship between legal private placement and the crime of illegally absorbing public deposits. Based on the principle of lighter punishment, Article 3 of Several Explanations stipulates that if an individual illegally absorbs more than 200,000 deposits, involving more than 30 people, resulting in direct economic losses of more than 654.38+million, and a unit illegally absorbs public deposits of more than 1 10,000, involving more than 150 people, resulting in direct economic losses of more than 500,000, criminal responsibility shall be investigated for the crime of illegally absorbing public deposits. If it fails to meet the above-mentioned prosecution standards, Article 38 of the Interim Measures for the Supervision and Administration of Private Investment Funds stipulates the punishment measures of ordering correction, warning and fine, which belongs to the category of administrative responsibility.