The corporate finance legislation is very complicated in China. From the perspective of efficacy hierarchy, it is composed of: (a) the laws promulgated by the People’s Congress of China, including its Standing Committee, e.g., the Civil Code, the Company Law, the Securities Law, and the Securities Investment Fund Law; (b) the regulations promulgated by the State Council of China, e.g., the Regulations on Administrating and Supervising Securities Companies, and the Regulations on Administrating Futures Trading; (c) the judicial interpretations promulgated by the Supreme People’s Court of China, e.g., the Fifth Provisions on the Issues Applying the Company Law, and the Interpretation on Applying the Security Provisions of the Civil Code; (d) the rules promulgated by different ministries or ministerial organs of China, e.g., the Interim Rules on Administrating Private Investment Funds by the China Securities Regulatory Commission, and the Rules on Administrating and Supervising Insurance Asset Management Companies by the China Banking and Insurance Regulatory Commission; (e) the guidance and discipline rules promulgated by industrial associations or organs, e.g., the Measures on Private Fund Managers’ Registration and Funds’ Filing by the Asset Management Association of China, and the Trading Rules by the Shanghai Stock Exchange. In addition, there are also rules and regulations promulgated by local congresses and governments, e.g., the Regulations on Administrating and Supervising State-owned Asset of Shandong by the People’s Congress of Shandong Province. All the above may affect your corporate finance cases, either from the legal-effect perspective or from the regulatory perspective.
For their application in practice, the first is to study the proposed corporate finance case and identify the applicable legal provisions. The second is to evaluate the effect of such provisions on the case. In general sense, if the activity therein breaches the laws and regulations promulgated by the People’s Congress or the State Council, it will be invalid; and if it breaches the rules and regulations promulgated by other authorities, it may be valid but may be fined or punished in other ways. What shall be noticed is the judicial interpretation, as it may imply how the judicial outcome will be in the future. The third is to advise and complete the documentary work according to the evaluation, including the procedures for and after the closing.