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The Legal Difficulties Of Venture Capital Enterprises Are Expected To Be Solved
The current Company Law is mainly applicable to processing trade companies, while venture capital companies are fundamentally different from ordinary companies, so the general provisions of the Company Law should not be applied. Liu Jianjun, Financial Department of the National Development and Reform Commission, said that the draft Interim Measures for the Management of Venture Capital Enterprises would solve the legal problems of venture capital enterprises, provide support for the private placement of venture capital enterprises, and facilitate the financing of venture capital enterprises. In terms of foreign investment, the Company Law stipulates in the second paragraph of Article 12 that the cumulative investment amount of the company in other companies "shall not exceed 50% of the net assets", which is a major obstacle for venture capital enterprises to invest abroad. However, considering that investment companies are mainly engaged in investment business with their own capital, the Company Law added "except for investment companies and holding companies prescribed by the State Council" in the front part of the second paragraph, so that the State Council and its relevant departments can formulate special administrative regulations or rules according to the particularity of investment companies such as venture capital enterprises. Therefore, the Interim Measures will cancel the above restrictions on outbound investment for venture capital enterprises, stipulate the debt mode and debt ratio of venture capital enterprises, and allow them to make outbound investment with moderate debt. The current Company Law mainly formulates corresponding regulations on the issuance of common shares by companies, but at the same time, it points out in Article 135 that "the State Council may make separate regulations on the issuance of other types of shares by companies other than those specified in this Law". In order to solve the problem of asymmetric rights and obligations of venture capital enterprises to the invested enterprises, the Interim Measures will stipulate that venture capital enterprises can invest in "convertible preferred shares", "convertible bonds" and other ways, so as to effectively protect the rights and interests of venture capital enterprises, so that venture capital enterprises can not only obtain preferential dividends and preferential rights to pay off, but also participate in enterprise operation and management. As for the taxation of venture capital enterprises, the Interim Measures will not only solve the problem of double taxation, but also give special preferential tax policies to venture capital enterprises. Since venture capital enterprises generally distribute their income to investors, and the enterprise itself is not the subject of income, taxation on venture capital enterprises increases the burden on enterprises. In foreign countries, there are two ways to solve the double taxation problem of venture capital enterprises, one is to tax according to the income subject, the other is to tax according to the nature of the enterprise (such as company or partnership). The Interim Measures will probably tax venture capital enterprises according to the former model. In addition, on the issue of capital sources of venture capital enterprises, Liu Jianjun believes that life funds and insurance funds are more suitable, because venture capital is a long-term investment, and more than half of foreign venture capital funds come from life funds and insurance funds. However, this requires changes in the policy for the use of insurance funds.
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