| In recent years,the investment and financing model of “fake equity,real debt”has often appeared in practice,especially in the real estate industry and basic industries.“Fake equity,real debt” is a hybrid financial instrument that combines the advantages of equity investment and financing and debt financing and financing,and is sought after by many participants.Investors can enjoy more stable and higher investment income,and the financing can obtain borrowing while reducing the asset-liability ratio.For example,other participants such as financial institutions as channel parties can obtain high service fees.However,“fake equity,real debt” will have a very negative impact on the healthy development of the entire society and the effective supervision of the regulatory authorities.Therefore,“fake equity,real debt” are strictly regulated by regulatory authorities and industry associations.The author takes the phenomenon analysis as the logical starting point,and summarizes the hidden dangers of the existence of the specific operation mode,production and development of the“fake equity,real debt” in practice,to prove the necessity of its regulation;The current status of supervision and judicial trials further discusses the problems arising in the process of “fake equity,real debt” and proposes corresponding solutions.This article is divided into the following four parts:The first part mainly reveals the basic connotation of “fake equity,real debt”.On the one hand,the author lists some official documents on the definition of “fake equity,real debt”,sums up the specific connotations of “fake equity,real debt” in different fields,and summarizes its connotations and characteristics.And by comparing similar concepts,such as gambling,preferred stocks,mezzanine financing,etc.,further clarify its connotation and extension.On the other hand,“fake equity,real debt” is a financial tool developed in practice,rather than a pure academic concept,so it is indispensable to pay attention to its specific operations in practice.The author makes a detailed classification of “fake equity,real debt” from the three perspectivesof safeguard measures,transaction structure and bond stocks,and explores the specific operation methods of“fake equity,real debt” from these three perspectives,with a view to The debt has a more intuitive understanding.The second part mainly analyzes the necessity of regulating the “fake equity,real debt”.On the one hand,it analyzes the motivations for the existence and development of “fake equity,real debt” to understand the root causes.Judging from the situation reflected in practice,in fact,the demand for the interests of all parties has prompted the emergence and development of “fake equity,real debt”.“Fundamental debts” not only have the consideration of making up for the inherent shortcomings of existing investment and financing methods,but also have the intention of circumventing current financial regulatory policies.Therefore,the “fake equity,real debt”itself has the motive for seeking additional benefits and the intention to circumvent the law.This is also an important reason for being regulated.On the other hand,it analyzes the potential risks of “fake equity,real debt” and understands the supervision of the regulatory authorities.From a macro perspective,“fake equity,real debt” has the risk of high financial leverage and liquidity risk and the out-of-control of capital supervision.From a micro perspective “fake equity,real debt” has the risk of false reduction of debt ratio and operational risk.Therefore,the multiple risks caused by “fake equity,real debt”are also important reasons for being regulatedThe third part mainly analyzes the status quo of the legal regulation of “fake equity,real debt”.There are two main lines for the analysis of the regulation of “fake equity,real debt”,which are the regulatory authorities,industry associations and judicial organs.In the analysis of the supervision of regulatory authorities and industry associations,the article first sorts out the rules and regulations issued by the regulatory authorities and industry associations.The regulatory authorities include the former CBRC,the former Insurance Regulatory Commission,the Ministry of Finance,the National Development and Reform Commission and the State-owned Assets Supervision and Administration Commission,and most of them The form of "Management Measures" is released.After the initial completion of the financial institution reform,the supervision mode was changed from the traditional separatesupervision of “one line of three sessions” to the functional supervision and behavior supervision of “one committee,one line and two sessions”.And for the “fake equity,real debt”with structural and cross-cutting characteristics,“penetrating supervision” is required,and the final investor of the product is identified upwards,and the underlying assets of the product are identified downward.In addition to the above traditional regulatory authorities,the author believes that the judiciary has also played a role in potential supervision.The article analyzes in detail the attitude of judicial trials on “fake equity,real debt”,and studies them from four angles: judgment factors,contract effectiveness,legal effects and attitudes towards relevant departmental regulations,with a view to exploring the judicial organs’ “fake equity,real debt”.The role played by legal regulation and the problems that exist.The fourth part mainly discusses the problems existing in the legal regulation of“fake equity,real debt” and provides ideas for the following suggestions.The analysis of the problem in this paper is mainly carried out from three aspects: the connotation understanding of “fake equity,real debt”,the setting of relevant financial regulations and the linkage between regulatory bodies.The author also mentioned in the first part that the definitions o “fake equity,real debt” are inconsistent in various departments,and some definitions are too simple and not operational.The author believes that the most important thing to regulate the “fake equity,real debt”is to clarify the connotation and define it uniformly.Moreover,the formulation of financial regulations and the development of “fake equity,real debt”are lagging behind.The author believes that it is necessary to further accelerate the formulation and revision of financial regulations to adapt to the process of financial reform and the development of “fake equity,real debt”.With regard to the linkage and coordination between regulatory bodies,this paper mainly refers to the need for the national ministries,financial regulatory departments and industry associations to further strengthen cooperation and cooperation with the judicial authorities on the regulation of “fake equity,real debt”,and to carry out legal regulation in multiple links..The fifth part mainly focuses on the improvement of the problems raised in the fourth part.The author believes that the regulation of “fake equity,real debt” needs to be considered at the same time from both the regulatory body and the market entity.It cannot be negated.It is necessary to consider the market’s need for financing and the actual situation of supervision.First of all,it is necessary to have a more accurate positioning of “fake equity,real debt”.On the one hand,it is necessary to clarify the connotation and extension of “fake equity,real debt”.On the other hand,it is necessary to clarify the regulatory boundaries of “fake equity,real debt”.Secondly,in view of how to improve the regulatory efficiency,the author believes that it is necessary to pay attention to the improvement of the supporting system and build a unified and diversified supervision system.At the same time,it is also necessary to pay attention to the supervision method and the optimization of supervision tools,and use technology to improve the financial supervision mode and improve Financial supervision efficiency.Thirdly,in addition to the traditional administrative supervision departments,the judicial organs also play a regulatory role in regulating the “fake equity,real debt”.The way in which the judiciary cooperates with the administrative supervision department includes finding the applicable space of local regulations and administrative regulations from the existing legal system and realizing the unification of the referee of the “fake equity,real debt” case through the formulation of judicial interpretation.Finally,the author believes that while regulating the “fake equity,real debt”,it is also necessary to consider the actual demand for investment and financing.Therefore,at the same time of regulation,it is necessary to pay attention to broaden the financing channels of enterprises,consider providing financial instruments that meet market demand and regulatory requirements,and guide the compliance and legalization of investment and financing activities. |
