Various announcements and reports of the Fund Industry Association

The Asset Management Association of China (hereinafter referred to as the "Association") released the "2022 Private Fund Registration Summary" on January 3, 2023. The report includes the following sections: 1. Optimize registration and filing, facilitate business development in compliance with regulations, publish a list of institutional registration application materials and typical cases of registration and filing, update the focus points of private equity fund filing, release registration and filing guidelines, insist on supporting the good and limiting the bad, and solve one problem. 2. Promote risk resolution, strengthen investor protection, and clean up risky institutions in a safe and orderly manner; 3. Further optimize the industry structure, support the real economy with remarkable results, and private equity funds develop steadily. In order to increase direct financing, promote the formation of innovative capital, The role of supporting technological innovation and industrial restructuring has become increasingly prominent.

The association announced the relevant examination plan for 2023 on January 9, 2023: 1. The qualification examination for fund practitioners is planned to be held four times in 45 cities across the country; Shanghai, Chengdu (only held the high-level evaluation test for directors and supervisors), and Shenzhen held 12 times. The specific registration time, test time, test admission ticket printing time and test location are subject to the current test announcement.

The Association issued an announcement on January 13, 2023, stating that 50 private equity fund managers including Chongqing Chenghua Equity Investment Fund Management Co., Ltd. had abnormal operating conditions and failed to submit compliance documents within 3 months after the written notice was issued. The association will cancel the registration of private equity fund managers of the 50 institutions and enter the above situation into the securities and futures market integrity file database.

Association self-regulatory rules

1. "Affordable Asset Management Association of China Whistle-blowing Measures (Trial)"

   
   

   On January 18, 2022, the Association issued the "Reporting Measures of the Asset Management Association of China (Trial)" (hereinafter referred to as the "Reporting Measures"). There are a total of 19 reporting measures, and nearly half of the articles (Articles 6 to 13) are used to focus on the reporting procedures. Reporting procedures are divided into material identification, registration, and publicity. In addition to the different requirements for individual reporting and entrusting others to report materials, the identification of materials also stipulates the common content that materials should contain. Provide certain remedies for situations that do not meet the material identification rules, and stipulate the limitations of remedies. The association will register the reports that meet the requirements of the materials, and will punish them in accordance with the "Measures for the Implementation of Self-Disciplinary Management and Disciplinary Sanction Measures of the Asset Management Association of China", and publicize the punishment results. In addition, the reporting measures also stipulate the storage of reporting materials, the protection of whistleblowers and the effect of withdrawing reports.

Typical case

1. The judiciary should prudently intervene in the affairs of partnership enterprises. The loss of contact with the fund manager is not enough to determine that the partners of the partnership fund have lost their humanity. Judgment on the substantive conditions for the dissolution of the partnership enterprise.

Case: Partnership dispute between Xinyu Hanjia Investment Management Center (Limited Partnership) and Beijing Zhongtou Hanfu Win-Win Investment Center (Limited Partnership) [(2022) Jing 03 Min Zhong No. 10369]

Main facts: In November 2015, Xinyu Hanjia Center and other entities contributed capital to CIC Hanford Center as limited partners, and CIC Hanfort Center had Hanfort as the executive partner. On January 20, 2020, due to the violations of Hanfor Company, the Beijing Bureau of the China Securities Regulatory Commission issued the "Decision on Taking Administrative Supervision Measures to Order Correction against Hanfor Company". According to the "Announcement on the Submission of Special Legal Opinions by Private Equity Fund Managers under Abnormal Operation Situations", Hanfor Corporation is in an abnormal operation state (during the period of abnormal operation, the institution's fund filing application and the institution's application for major event changes are suspended. and relevant related parties’ applications for new private equity fund managers).

Xinyu Hanjia Center believes that Hanfort, the executive partner of CIC Hanfort, is in a state of being out of contact, which leads to the loss of the relationship between the partners and the failure to realize the purpose of the partnership, so it appeals to the court for the dissolution of CIC Hanford rich center. The court of first instance rejected its petition, and it appealed against the appeal.

Judgment's point of view: The court of first instance held that the judiciary should prudently intervene in the affairs of partnership enterprises, and that partnership enterprises should not be dissolved easily if there are other ways to maintain the existence of the partnership enterprise. Only when the partnership enterprise falls into a persistent deadlock, which cannot be resolved by exhausting other means, and the partnership enterprise does not meet the conditions for continued operation, and the continued existence will cause significant losses to the interests of the partners, the court should promptly rule to dissolve the partnership enterprise.

The partnership agreement of CIC Hanfort Center stipulates the removal and replacement of the executive partner. Xinyu Hanjia Center can, in accordance with the above provisions, remove the executive partner through an arbitration award or unanimously agreed by all partners, and elect a new one. Executive partner. Xinyu Hanjia Center's proposal to dissolve CIC Hanford Center does not exhaust other remedies. To sum up, the court could not find that CIC Hanford Center met the substantive conditions for adjudicating the dissolution of a partnership enterprise. Therefore, the court did not support Xinyu Hanjia Center’s request to dissolve CIC Hanford Center. Based on the opinion of the court of first instance, the court of second instance held that the existing evidence is not sufficient to determine that the partnership purpose stipulated in the partnership agreement of China Investment Hanfort Center cannot be realized, and that Hanfort is currently in a state of being out of contact, which is not sufficient to determine that the partners have lost the relationship. Compatibility. Therefore, the court of second instance finally rejected the appeal and upheld the original judgment.

2. The fund property is independent of the fund manager, and fund investors can retrieve all or part of their investment funds through fund liquidation. Therefore, when the fact of their fund financial loss is uncertain, fund investors expressly waive The recovery of fund investment profit and loss funds only claims that the guarantor should return all investment funds, which lacks basis and is not supported

Case: Contract disputes between Wei Guoqing and Bai Jiaming [(2022) Yue 19 Min Zhong No. 9600]

Main facts: In December 2017, Wei Guoqing recommended a contractual private equity fund to Bai Jiaming, saying that the contract is the seal of the China Securities Regulatory Commission for the record, Hengfeng Bank is in custody, the fund company is responsible for the bottom line, and the group guarantees the income. Dividends, and said that Hezhong Group and Wei Guoqing's company Dongguan Jucai Asset Management Company are the guarantors. In addition, Wei Guoqing himself also said that he can write a 1.15 million IOU with Bai Jiaming, and Wei Guoqing is responsible for all issues. In July 2018, through the introduction of Wei Guoqing, Bai Jiaming, as a fund investor, signed a "Huian Ecological Agriculture Tourism Industrial Park No. At the end of the month, 1 million yuan was transferred to the No. 1 fund raising account of Shenzhen Saikebeisi-Huian Ecological Agriculture Tourism Industrial Park. Since then, Bai Jiaming has not received any dividends. On December 31, 2018, Wei Guoqing informed Bai Jiaming through WeChat that Secbes Company and Hezhong Holding Group Co., Ltd. could not pay dividends and principal due to financial problems.

After the expiration of the private equity fund contract, Sekbes Company did not return the investment principal to Bai Jiaming as agreed. Bai Jiaming failed to negotiate with Wei Guoqing many times, so he sued the court and demanded that Wei Guoqing return his investment principal and dividends. The court of first instance ordered Wei Guoqing to return the investment principal, but Wei Guoqing appealed against it.

Judgment's point of view: The court of second instance held that although Wei Guoqing made a promise to Bai Jiaming to guarantee the investment and promise fixed income, according to the fund contract, Bai Jiaming, as a fund investor, should bear the loss of fund investment according to the contract, and Bai Jiaming can only determine his investment loss. Afterwards, Wei Guoqing claimed that Wei Guoqing should share the losses reasonably in accordance with the law in accordance with his guarantee commitment. Although Seikebeisi Company is involved in many debts, the fund property is independent of the fund manager and does not belong to the company's property. Bai Jiaming can recover all or part of the investment funds through fund liquidation, and the fact that his fund's financial management lost Sure. Bai Jiaming categorically renounced the recovery of fund investment profits and losses from Seikebeis Company, and only claimed that Wei Guoqing should return all the investment funds, which lacked basis and this court did not support it. The court of second instance finally revoked the judgment of first instance and rejected all of Bai Jiaming's appeals.