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2005年《证券法》修订确立了非公开发行的合法地位,但在立法架构上缺乏一些核心制度安排,致使实践中监管陷入信息能力不足和发展市场受限的双重困境。由于正式制度供给不足,游离于《证券法》之外的场外市场发展迅速。非公开发行“入法”成为《证券法》完善的迫切课题。非公开发行入法须反思当前监管中的困境,厘清监管思路,谋定而后动。本文认为非公开发行监管嬗变的现实路径是构建多层次的监管体系,而突破口在于专门市场的建立。从非公开发行专门市场的一级发行与二级交易规范做起,借由专门市场的吸引力,突出示范效应。在多层次资本市场体系框架初步建立的背景下,非公开发行证券转售市场的设立应与三板市场建设相勾连,作为三板市场的一大功能定位。
The revision of the Securities Law in 2005 established the legal status of non-public issuance but lacked some core institutional arrangements in the legislative framework. As a result, supervision in practice fell into the double dilemma of insufficient information capacity and limited market development. Due to the lack of a formal system, the OTC market, which is free from the Securities Law, has developed rapidly. Non-public offering “entering the law ” has become an urgent issue of perfecting the “Securities Law”. Non-public offering of shares into the law to reflect on the current regulatory difficulties, to clarify the regulatory thinking, plan and move later. This paper argues that the realistic path for the evolution of non-public issuance regulation is to build a multi-level regulatory system, and the breakthrough lies in the establishment of specialized markets. From the non-public offering of a special issue of the market and secondary trading norms to start with the attractiveness of specialized markets, highlighting the demonstration effect. Under the framework of the initial establishment of a multi-level capital market system framework, the establishment of the resale market for non-public offering of securities should be linked up with the construction of the third board market as a major function of the third board market.