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我国《证券法》、《上市公司证券发行管理办法》等规定了证券发行都要经过证监会的批准,这使得在美国证券法中原本与非公开发行核准豁免相配套而设立,《证券法》第十条第三款非公开发行一般性劝诱禁止的规定失去了继续存在的逻辑基础和实际效用。从发行核准制度设立的立法目的与行政监管收益成本两方面衡量,说明了我国建立证券非公开发行核准豁免的必要性。并结合国外立法和我国实际,对公开发行的界定标准提出了重构意见。
China Securities Law and Measures for the Administration of the Issuance of Securities by Listed Companies stipulate that the securities issuance must be approved by the CSRC. As a result, the securities law of the United States was originally set up with the approval exemption for non-public issuance. The Securities Law Article 10, paragraph 3, of the non-public offering of the general prohibition of the prohibition of the provisions of the loses the logical basis for the continued existence and practical utility. The legislative purpose of establishing the issuance approval system and the cost of administrative supervision are two aspects to measure, indicating the necessity of setting up an exemption approval of non-public offering of securities in our country. Combined with the foreign legislation and the reality of our country, put forward the reconstructing opinions on the definition standard of the public offering.