论我国私募股权投资基金与证券投资基金一体规范

《私募投资基金监督管理暂行办法》对于私募股权投资基金设立、基金管理人和基金托管人权利义务等一系列重要问题未作出规范,由此导致法院在处理部分私募股权基金纠纷案件时只能选择参照适用我国《证券投资基金法》作为裁判依据。 我国《证券投资基金法》未将私募股权投资基金纳入其调整范围。 法院此举缺乏正当性。 事实上,私募股权投资基金与证券投资基金在行为性质上同属金融活动,在法律关系的构建上均主要以信托关系为基础,两者产生的法律风险亦具有同质性,将两者一体规范能解决司法裁判适法正当性的问题,既有必要性和可行性,也能提高监管效率、促进行业发展。 我国应当将私募股权投资基金纳入《证券投资基金法》,实现私募股权投资基金与证券投资基金的一体规范。

On the Integrated Regulation by Including the Private Equity Funds in Law on Securities Investment Funds in China

The Law of China on Securities Investment Funds does not include private equity investment fund into its governing scope and the Interim Measures for the Supervision and Administration of Privately-Raised Investment Funds hasn't provided for norms on a series of important issues such as whether the funds are established according to law what the rights and obligations of fund managers and depositories are.Thus in judicial practices of dealing with some cases concerning disputes over private equity funds the judges can only choose to refer to and apply the Law on Securities Investment Funds as adjudicative foundation but such practices lack legitimacy.In fact both the private equity funds and securities investment funds are financial activities in terms of the nature of act and mainly based on fiduciary relations in terms of the construction of legal relations and the legal risks produced by them enjoy the same nature so it is necessary and feasible to formulate uniform norms on both of them so as to solve the problem concerning the legitimacy of law application in judicial adjudication and the supervisory efficiency will be improved and the industry development will be promoted.In China the private equity investment funds should be included in the Law on Securities Investment Funds to realize the integrated regulation.