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证券私募发行制度源于美国1933年《证券法》,私募发行是一种在保障投资者权益前提下的效率安排,通过行政审核豁免制度来降低发行成本、提高融资效率;通过高标准的发行对象准入与弹性化的信息披露制度来保障投资者理性投资。私募发行制度的核心在于发行审核豁免,而豁免的前提是发行对象具备较高的投资价值判断能力和风险承担能力。私募发行制度的建立依赖于法律对发行对象的条件与范围作出合理的规制,既能保证发行人得以借助私募发行高效融资,又能保护投资者权益、维护投资市场的秩序与安全。我国当前私募发行法律规范的位阶低、缺乏系统性,只有在法律层面完善以私募发行对象准入为核心的法律制度才能使证券私募发行走上法治的轨道。
The private placement system of securities originated from the Securities Law of the United States of 1933. Private placement is an efficiency arrangement under the precondition of protecting the rights and interests of investors. Through the administrative examination and approval exemption system, the issuance costs are reduced and the financing efficiency is raised. Access and flexible information disclosure system to protect investors rational investment. Private placement system is the core of the issuance audit exemption, and the premise of exemption is the issue of objects with high investment value judgment and risk appetite. The establishment of private placement system relies on the law to reasonably regulate the conditions and scope of the object of issuance, which not only ensures that issuers can make efficient financing through private placement, but also protects the rights and interests of investors and safeguard the order and security of the investment market. At present, the legal norms of private placement in our country are of low rank and lack of systematicness. Only by perfecting the legal system with the admission of private placement as the core can the private placement of securities take the track of the rule of law.