/ / 1、Yang Chunbao's lawyer team assisted Pudong Leading District Fund to invest 1.3 billion yuan to subscribe for shares of the Yangtze River Delta Phase II Fund

Recently, the second phase of the Yangtze River Delta Fund completed its first phase of fundraising, and Yang Chunbao's lawyer team represented Pudong to lead the district's industrial development fund to invest in the fund. The fund is managed by Guofang Capital. Entrusted by the Pudong Leading District Fund, Yang's team of lawyers conducted a comprehensive legal due diligence investigation on Guofang Capital and the proposed second phase of the Yangtze River Delta Fund. At the same time, they participated in the limited partnership agreement (LPA) of the fund and the negotiation of ancillary agreements (SL). The target scale of the second phase of the Yangtze River Delta Fund is 10 billion yuan, of which the Pudong Leading District Fund contributed 1.3 billion yuan.

/ / 2、Yang Chunbao's lawyer team assisted Baowu Green Carbon Fund in investing in a world-leading "turnkey project" supplier of liquid food equipment

Recently, Baowu Green Carbon Fund reached an agreement with a world-leading liquid food equipment "turnkey project" supplier to increase its capital by 200 million yuan. The lawyer team of Yang Chunbao assisted Baowu Green Carbon Fund in completing the investment. Based on the various considerations of both the investment and financing parties, this investment must be completed within a short period of time based on the premise of compliance. After accepting the entrustment, Lawyer Yang's team overcame the various negative effects caused by the strict prevention and control of the epidemic and the sudden release of the epidemic, and participated in ultra-high-intensity legal due diligence, negotiation of share subscription agreements and subsidiary agreements.

The Asset Management Association of China (hereinafter referred to as the "Association") issued an announcement on December 9, 2022 stating that 27 private equity fund managers including Chongqing Zhengyin Guanghui Equity Investment Fund Management Co., Ltd. have abnormal operating conditions, and If a special legal opinion that meets the requirements is not submitted within 3 months after the written notice is issued, the Association will cancel the registration of private equity fund managers of the 27 institutions and enter the above situation into the capital market integrity file database.

The Association released the "Green Investment Self-Assessment Report of Fund Managers (2022)" on December 13, 2022, stating that in July 2021, in accordance with the requirements of the "Green Investment Guidelines (Trial)", the Association launched the first asset management member institutions. Four self-assessment surveys. A total of 712 valid samples were obtained in this self-assessment survey. Among them, 320 valid questionnaires from private equity fund managers and 327 valid questionnaires from private equity fund managers were received. As far as private equity fund managers are concerned, in terms of green investment strategy management, 55 institutions have incorporated "green investment" into their corporate strategies, of which 31 institutions disclosed green investment strategies to investors; in terms of green investment system construction, 23 10 institutions indicated that they have the capabilities of green investment research, green performance evaluation, and environmental risk monitoring and disposal; in terms of green investment product operation, 10 institutions issued a total of 10 products targeting green investment. As far as private equity venture capital fund managers are concerned, in terms of green investment strategy management, 90 private equity institutions have explicitly incorporated "green investment" into their company strategies, of which 65 institutions disclosed to investors; in terms of green investment system construction , 214 private equity institutions conducted green investment research, 55, 36 and 22 respectively established positive, negative and "positive + negative" green performance evaluation methods, and 65, 70 and 39 established environmental Risk monitoring mechanism, emergency response mechanism and "monitoring + emergency response" mechanism; in terms of green investment product operation, 44 private equity institutions have issued a total of 70 products targeting green investment.

The association issued an announcement on December 30, 2022 stating that the existing nine managers including Tianjin Tianxin Equity Investment Management Co., Ltd. cannot continue to meet the manager registration requirements, and the association will cancel the registration of private equity fund managers of these nine institutions, and Enter the above circumstances into the capital market credit file database.

1. Measures for the Registration and Filing of Private Equity Investment Funds (Draft for Comment)

On December 30, 2022, the association issued the "Registration and Filing Measures for Private Equity Investment Funds (Draft for Comment)" ("Draft for Comment") and supporting guidelines, and publicly solicited opinions from the public. The opinion draft is a revision of the "Private Equity Fund Manager Registration and Fund Filing Measures (Trial)" ("Trial Measures") issued in January 2014, and plans to change the name of the Trial Measures to "Private Equity Fund Registration and Filing Measures". Specifically, the main amendments to the trial measures in the opinion draft are reflected in the following aspects: First, clarify the registration and filing principles of "compliance with laws and regulations, openness and transparency, convenience and efficiency", and emphasize the principle of "sellers are responsible and buyers are responsible" The origin of the private equity fund industry; second, clarify the registration standards for managers, and moderately increase the normative requirements; third, clarify the institutional arrangements for the entire life process of private equity funds "raising, investing, managing, and withdrawing", and clearly define venture capital funds; Fourth, add a special chapter on "Information Change and Submission" to emphasize continuous information disclosure and reporting obligations; fifth, strengthen self-discipline management throughout the process, and further enrich self-discipline management methods.

In addition, there are 3 supporting guidelines in the opinion draft, which are aimed at the basic operating requirements of private equity fund managers (“Guideline 1”), shareholders/partners/actual controllers (“Guideline 2”), legal representative/senior management personnel/executive partners and their designated representatives (“Guideline No. 3”). Among them, the No. 1 guideline puts forward requirements for private equity fund managers in terms of subject qualification, name, business scope, capital, executives' shareholding, financial status, business place, personnel, internal control system, emergency plan, business plan, and business prohibition. Clear and specific requirements, and stipulates the conflicting businesses that private equity fund managers are not allowed to engage in, the foreign shareholding ratio of private equity fund managers, and the situation where private equity fund managers' accounts in the association's registration and filing electronic system are locked. The No. 2 guideline has specific requirements and restrictions on the capital contribution structure of private equity fund managers and the composition of shareholders/actual controllers (shareholders/actual controllers of listed companies and financial institutions; asset management products must not become actual controllers and have shareholding Proportion restrictions; restrictions on the shareholding ratio of conflicting business contributors) put forward the requirements; elaborated on the circumstances in which the manager "Dong Jian Gao" and the executive partner and their appointed representatives are not allowed to act as managers in the opinion draft; clarified the company type, The criteria for the identification of actual controllers of partnership-type, state-owned, and foreign-funded private equity fund managers stipulates the joint actual controller and the situation of no actual controller; specific requirements are put forward for the actual controller of securities and equity fund managers respectively; Circumstances of transfer of actual control; the corresponding disclosed related parties and conflicting business related parties shall be clarified. Guidelines No. 3 clarifies the requirements for senior managers of securities and equity fund managers, including the work experience of the legal representative/executive partner, the performance of the senior managers responsible for investment, and the specific requirements for the person in charge of compliance and risk control. Matters such as the quiet period, part-time jobs of senior executives and no affiliation are clarified.

2. Measures for the Implementation of Self-Regulatory Management and Disciplinary Measures of the Asset Management Association of China

The association issued the "Measures for the Implementation of Self-Discipline Management and Disciplinary Measures of the Asset Management Association of China" on December 30, 2022. The implementation measures are divided into general principles, types of measures, discretionary factors, implementation procedures, review of disciplinary actions, service, recusal and publicity, and supplementary rules, totaling seven chapters and 49 articles. It is worth mentioning that nearly half of the provisions (Articles 17 to 38, a total of 22) are used in the Implementation Measures to focus on the implementation procedures. Specifically, the implementation procedures are divided into three subsections: filing and inspection, implementation procedures of self-regulatory management measures, and implementation procedures of disciplinary measures. The subsection of case filing and inspection stipulates the source of clues of violations, conditions for filing a case, handling results, and circumstances where the case filing procedure is not applicable. The section on the implementation procedures of self-regulatory management measures introduces several self-regulatory management measures, including: talking reminders, written warnings, requiring corrections within a time limit, increasing the number of internal compliance inspections, and requiring participation in compliance education and other measures. The implementation procedure of disciplinary action measures specifies the main content that should be stated in the prior notice of disciplinary action, the relief rights of the subject of self-regulatory management (the right to appeal, the right to hold a hearing, and the hearing procedure), and the main content that should be included in the disciplinary action decision letter. content etc.

1. If the investment decision involved in the case is approved by the investment committee of the fund involved in the case, and the fund investor cannot prove that the executive partner of the fund involved in the case has obvious faults in the process of capital investment and post-investment management of the investment project involved in the case, Therefore, it cannot be determined that the fund manager involved in the case has neglected to perform the duties of the executive partner of the fund involved in the case

Case：Gansu Science and Technology Investment Group Co., Ltd., Qingdao Yuanrong Financial Investment Co., Ltd., and other disputes over violations of the rights and interests of corporate investors [(2022) Lu Min Zhong No. 1882] 

Main facts：In October 2017, Gansu Science and Technology Investment Co., Ltd. signed the "Partnership Agreement of Gansu Low Carbon Industry Technology Development Investment Fund (Limited Partnership)" with Qingdao Yuanrong Company and Gansu Low Carbon Industry Technology Development Investment Fund Management Center (Limited Partnership). It is agreed that all partners will jointly establish the Gansu Low Carbon Fund. Gansu Science and Technology Investment Company and other three companies are limited partners; Qingdao Yuanrong Company and Gansu Low Carbon Industry Technology Development Investment Fund Management Center (Limited Partnership) are general partners. Qingdao Yuanrong Company acted as the executive partner. In November 2017, Gansu Low Carbon Fund Investment Decision-Making Committee formed a resolution to invest 30 million yuan in Jupeng Food Company; on the same day, Gansu Low Carbon Fund and Zhang Xiuling signed the "Share Transfer Agreement" and "Share Transfer Agreement" for the target company Jupeng Food Company Supplementary Agreement to the Agreement. On November 14, 2017, the Gansu Low Carbon Fund Investment Decision-Making Committee made a resolution to invest 100 million yuan in Baofeng Commander Company. In November 2021, Gansu Science and Technology Investment Company sent a letter to Qingdao Yuanrong Company, requesting Qingdao Yuanrong Company to take corresponding legal actions against Zhang Xiuling's loan and collect it. In November 2021, Gansu Science and Technology Investment Company sent a letter to Qingdao Yuanrong Company, requesting Qingdao Yuanrong Company to take corresponding legal actions, and proposed to Baofeng Holding Company and Feng Xin to perform repayment and guarantee obligations to Gansu Low Carbon Fund. In December 2021, Gansu Science and Technology Investment Company filed a lawsuit with the court of first instance, arguing that Qingdao Yuanrong Company, as an executive partner, neglected to exercise its power as an executive affairs partner and violated Gansu Science and Technology Investment Company’s legal rights as a partner. Qingdao Yuanrong Company made compensation to Gansu Low Carbon Fund. The court of first instance ruled to reject Gansu Science and Technology Investment Co., Ltd.'s claim, and Gansu Science and Technology Investment Co., Ltd. lodged an appeal.

Referee point of view：The court of second instance held that Gansu Science and Technology Investment Co., Ltd. should produce evidence to prove that Qingdao Yuanrong Co., Ltd. was negligent in performing its duties as an executive partner. The two investments involved in the case were made by Qingdao Yuanrong Company in accordance with the resolution of the Investment Decision-Making Committee of Gansu Low Carbon Fund, and the members of the Investment Decision-Making Committee appointed by Gansu Science and Technology Investment Co., Ltd. also signed and agreed in the resolution, and there is no evidence to prove that The two investments involved in the case exceed the agreed direction and business scope, and should be deliberated and resolved by the general meeting of partners. Regarding the issue of whether Qingdao Yuanrong Company was lazy in claiming creditor’s rights in a timely manner, after the two investments involved in the case expired, Qingdao Yuanrong Company took appropriate measures such as reminders and coordinating extensions, and the reason why it did not file a lawsuit against the two investments involved in the case , based on comprehensive considerations such as litigation costs, Gansu Science and Technology Investment Co., Ltd. cannot prove that Qingdao Yuanrong Co., Ltd. has subjective faults. Therefore, the existing evidence in this case is not sufficient to prove that Qingdao Yuanrong Company was negligent in performing its duties as an executive partner, that is, Gansu Science and Technology Investment Company could not prove that Qingdao Yuanrong Company made the investment and post-investment of the two investment funds involved in the case. There are obvious mistakes in the management process.

2. There is no loan relationship between the fund investor and the fund manager, and the distributable income of the fund investor has not been determined before the fund is liquidated (that is, its claim to the manager cannot be determined), so the fund investor has no right to exercise The creditor's right of subrogation to claim the claims of the fund involved in the case against the third party

Case: Liu Lu v. Beijing Lihua Zhenyuan Technology Co., Ltd. Creditor Subrogation Dispute [(2022) Jing 03 Min Zhong No. 10389]

Main facts：In May 2018, Liu Lu signed the "Fund Contract" with Huazhen Company and Bank of Shanghai Co., Ltd. Beijing Branch, agreeing that: Liu Lu invested in the No. 1 income right private equity fund managed by Huazhen Company. All the assets of the fund are used to transfer the 16% limited partnership share income right of the partnership legally held by Lihua Company, and then indirectly hold the 0.5792% equity income right of CRRC. In September 2019, Lihua Company issued to Liu Lu the "Confirmation Letter of Subscription Shares of Private Equity Fund Clients of State-owned Enterprise Mixed Reform No. 1 Income Rights", proving that Liu Lu subscribed for this fund in May 2018, and the investment amount accounted for 2.5% of the total fund raised. %, and indirectly owns 0.0289% of the equity interest in CRRC. In addition, the "Limited Partnership Share Income Rights Transfer and Repurchase Commitment Letter" issued by Lihua Company to Huazhen Company stated: Our company promises to repurchase the limited partnership share income rights held by your company when it expires. After that, Huazhen Company did not propose a repurchase to Lihua Company. Liu Lu then sued the court of first instance on the grounds that Huazhen Company failed to claim due creditor's rights to Lihua Company, demanding that Lihua Company pay Liu Lu the principal of the investment and investment income. The court of first instance ruled to dismiss all of Liu Lu's claims. Liu Lu refused to accept and lodged an appeal.

Referee point of view：The court of second instance held that the focus of the second-instance dispute in this case was whether Liu Lu had the right to exercise the creditor's right of subrogation. In this case, Liu Lu exercised the creditor's right of subrogation to Lihua Company, provided that Liu Lu had a legal and valid due creditor's right to Huazhen Company, and the creditor's right had to be determined. The "Fund Contract" signed by Liu Lu and Huazhen Company reveals the relevant risks of fund investment in many places, and also agrees on different plans for fund income, and there is no commitment or agreement by Huazhen Company to guarantee Liu Lu's principal and income. Liu Lu used this as an excuse to claim that he formed a loan relationship with Huazhen Company, but the basis is insufficient. Secondly, the fund involved in the case has expired, but has not been liquidated. Liu Lu's distributable income as an investor has not been determined, and his creditor's rights to Huazhen Company have not been determined. Therefore, Liu Lu's exercise of the creditor's right of subrogation in this case to request Lihua Company to pay him the investment principal and investment income has no legal basis, and the court of first instance did not support it, which is not inappropriate, and this court upheld it.