展望2019 · 《国际资本市场评论》中国章节：回顾与预测

世界著名法律媒体法律商业研究有限公司（Law Business Research Limited）出版的The Law Reviews丛书中《国际资本市场评论（第八版）》（The International Capital Markets Review (Eighth Edition)，以下简称“资本市场评论”）一书于2018年12月出版。天元律师事务所合伙人石磊律师受邀撰写了资本市场评论的第四章——中国章节。

石磊律师撰写的中国专章主要从债券和证券发行的发展、证券衍生品和其他证券化产品的发展、相关案例和争议解决等角度对中国法下的资本市场进行了独到和深入的总结和分析，以帮助全球公司法律顾问及法律从业者进一步了解中国资本市场的监管框架。最后，石磊律师结合了对中国资本市场现状的最新观察，对中国资本市场的未来总体发展趋势做出了分析和预测。本章可以作为企业法律顾问和国际从业者了解中国资本市场的实用指南。

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Law Business Research Limited是一家总部设在英国的全球领先法律媒体，面向全球公司高管、法务人员、律所和政府机构提供深度法律分析和行业解决方案。The Law Reviews是专为公司律师、内部法律顾问、政府和公司官员打造的法律信息指南。The Law Reviews邀请了各个国家（地区）公司法领域领先的律师分享了他们对其所在的国家（地区）的法律环境现状和发展的看法。

The International Capital Markets

Review - Edition 8

CHINA

China's capital markets have gone through decades of development since the economic normalisation. It was not initially an attractive financing option for most private Chinese enterprises. The Shanghai Stock Exchange (SSE) and Shenzhen Stock Exchange (SZSE) were established in the 1991 as arms of the central government to solve the capital shortage problems of state-owned enterprise (SOEs) and sell shares to outside investors, thereby raising the value of the government's stake in these companies. However, China's capital markets have sped past various milestones. In 2016, Chinese companies raised US$20 billion of equity capital, more than the combined amount raised in the United States and Europe that year. As of June 2018, China has the world's second largest stock market, even excluding Hong Kong, with a combined aggregate market capitalisation of US$7.5 trillion. Having grown to be among the largest in the world in just over two decades, China's capital markets are usually cited as a counterexample to the significance of law for financial market development. However, a thorough examination of the development of China's capital markets will reveal that the law is actually critical to sustaining growth. Just as the experience of China suggests, law and market growth exhibit a bidirectional rather than a unidirectional causal relationship, and the course of development is more like 'growth-law-further growth'.

The legislation of the capital markets includes, first, several fundamental laws, most importantly the Company Law of the PRC and the judicial interpretations of that law made by the Supreme Court of the PRC (together, the Company Law), and the Securities Law of the PRC (the Securities Law), followed by a fiddly series of rules promulgated by central government (including the State Council and its delegated departments). Laws and regulations of the capital markets in China, originally borrowed largely from the legislation of developed economies, have the skeleton of a regulatory set-up supervising equity market (mainly shares), fixed income products (mainly government bonds, central bank bills, financial bonds and corporate bonds), derivatives (including futures, yuan interest rate swap and share index futures), securitisation products (mostly asset-backed securities), and foreign exchange in a broader sense.

However, the laws and regulations have many distinctively Chinese characteristics, inevitably, among which the most notable is the structurally inward-looking feature, which is evident in two ways in particular:

（a）the restricted access to and unequal treatment of foreign participants (issuers, investors and intermediaries) into China's domestic capital market; for instance, foreign issuers have been always barred from offering shares in the PRC and security firms are still subject to strict foreign ownership limitation; and

（b）the regulatory regimes concern not just the domestic capital market but also share-and-bond issuance of the 'red-chip' companies. Red-chip (market-created business jargon rather than a legal term) generally refers to the corporate structure in which the business interests are mainly within the PRC but are owned by holding companies established overseas, which are in turn controlled by Chinese citizens or state-owned bodies. Since shares and bonds issued by red-chip companies are sold to international investors rather than within China, and the companies are only listed on overseas exchanges, if they are listed at all, the government should not have bothered about regulating this kind of operation too much, if at all. However, owing to the Chinese government's near-paranoid prejudice against foreign ownership, the red-chip structure is seen more as a way of getting round government supervision, and thus is subject to a series of complicated and less-transparent requirements.

Only the central government is involved in the legislation of the capital market. Within central government, the regulatory bodies are mainly the one bank and two commissions (formerly one bank and three commissions) that regulate the financial sectors,2 but also include a few departments and self-regulatory industry organisations delegated with certain administrative functions. Under the motto 'Stability conquers all', the Chinese regulators place a great emphasis on maintaining the stability of the capital markets by intervening and reasserting control of both the primary and secondary markets. Inevitably, people cast doubt on the effects of this intervention. For instance, it is widely believed that policies pursued by the government in search of new sources of growth are at least partly to blame for the creation of the bubble that burst in the summer of 2015; even worse, in early 2016, the China Securities Regulatory Commission (CSRC) suspended the rule introducing a circuit breaker to the stock market after only four days because it was working in completely the opposite way to what was intended and fuelling massive trading losses. China's dramatic and short-lived experience with a circuit breaker revived the debate about whether existing financial systems in China are able to accommodate the growth of capital markets so as to support a sustainable economy. Nonetheless, despite some unsatisfied government interventions, China is determined to reform its capital markets in its own way to better serve its own purpose, for example, most recently, by returning to the basics of supporting a 'real economy' or non-financial economy.

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