Chapter I General Provisions
Article 1 For the purposes of promoting the development of startup investment enterprises, regulating their investment operations and encouraging them to invest in small and medium-sized enterprises, especially the small and medium-sized high and new tech enterprises, these Measures are formulated in accordance with the Company Law of the People's Republic of China, Law of the People's Republic of China on the Promotion of Small and Medium-sized Enterprises, and other laws and regulations.
Article 2 The term "startup investment enterprise" as mentioned in these Measures refers to any enterprise organization registered and established within the territory of the People's Republic of China for the purpose of mainly engaging in startup investment activities. The term "startup investment" as mentioned in the preceding paragraph refers to the investment mode that any stock right is invested into a startup enterprise for expectation of profits of capital increment by way of stock right transfer after the invested startup enterprise becomes mature or relatively mature. The term "startup enterprise" refers to any growing enterprise registered and established within the territory of the People's Republic of China and is during the course of establishing or re-establishing , excluding those enterprises that have listed in the open market.
Article 3 The state adopts archival filing management for startup investment enterprises. Where any startup investment enterprise has gone through the archival filing formalities in accordance with these Measures, it shall accept the supervision of the administrative organ for startup investment enterprises and may enjoy the policy support when it carries out investment operations in conformity with the relevant provisions. Where any startup investment enterprise fails to go through the archival filing formalities according to these Measures, it shall not subject to the supervision of the administrative organ for startup investment enterprises, nor does it enjoy the corresponding policy support.
Article 4 The archival filing administrative departments are classified into two levels, i.e. administrative department of the State Council and administrative departments of the provinces (including sub-provincial cities). The administrative department of the State Council shall be the National Development and Reform Commission. The administrative departments of a province (including sub-provincial city) shall be determined by the people's government at the same level, perform the corresponding archival filing administration functions after it has gone through the archival filing formalities in the administrative department of the State Council, and accept the guidance of the administrative department of the State Council on the archival filing administration work of the startup investment enterprises.
Article 5 The Provisions on the Administration of Foreign-funded Startup Investment Enterprises shall be applied to foreign-funded startup investment enterprises. If the investment operations carried out by a lawfully established foreign-funded startup investment enterprise accord with the relevant conditions, this enterprise may enjoy the relevant policy support granted to startup investment enterprises under these Measures.
Chapter II The Establishment and Archival Filing of Startup Investment Enterprises
Article 6 A startup investment enterprise may be established in the form of a limited liability company, joint stock limited company, or any other enterprise organization as prescribed by law. A startup investment enterprise established in the form of a company may entrust another startup investment enterprise or startup investment management consulting enterprise to act as its management consulting institution, which shall be responsible for the management of its investments. The General Principles of the Civil Law of the People's Republic of China, the Contract Law of the People's Republic of China, and other relevant laws and regulations shall be applied to the relationship between the consigner and the attorney.
Article 7 To apply for establishing a startup investment enterprise or startup investment management consulting enterprise, the applicant shall register directly in the administrative department for industry and commerce according to law.
Article 8 A startup investment enterprise registered in the administrative department for industry and commerce of the state shall apply the archival filing formalities in the administrative department of the State Council. A startup investment enterprise registered in the administrative department for industry and commerce at the province level or below shall apply the archival filing formalities in the local administrative department of the province (including sub-provincial city).
Article 9 To go through the archival filing formalities, a startup investment enterprise shall provided with the following conditions:
(1) It has been registered in the administrative department for industry and commerce;
(2) Its business scope conforms to the provisions of Article 12 of these Measures;
(3) The amount of its actual paid-in capital is no less than RMB 30 million yuan, or the amount of the down payment of its paid-in capital is not less than RMB 10 million yuan, and all investors make a commitment to make up the balance of actual paid-in capital in a sum of not less than RMB 30 million yuan within 5 years after the registration;
(4) The number of investors shall not exceed 200 persons. For a startup investment enterprise established in the form of a limited liability company, the number of investors shall not exceed 50 persons. The amount of investment made by a single investor into a startup investment enterprise shall not be less than 1 million yuan. All investors shall make investments in monetary form.
(5) It shall have at least 3 senior managers who have 2 or more years of startup investment experience or other relevant business experience to take charge of the investment management. If it entrusts another startup investment enterprise or startup investment management consulting enterprise as a management consulting institution to undertake its investment management responsibilities, this management consulting institution shall have at least 3 senior managers who have 2 or more years of startup investment experience or other relevant business experience to undertake the investment management responsibilities. The term "senior managers" as mentioned in the preceding paragraph refers to the administration personnel who hold the position of vice manager or higher positions or equivalent positions.
Article 10 To go through the archival filing formalities in the administrative department, a startup investment enterprise shall submit the following documents:
(1) The articles of association and other legal documents that regulate the organizational procedures and acts of the startup investment enterprise;
(2) The photocopies of the industrial and commercial registration documents and business license;
(3) The name list of the investors, commitments to contributed capital, and certificates for the already paid contributed capital; and
(4) The name list and resumes of the senior administration personnel.
If it entrusts a management consulting institution to be responsible for its investment management, it shall submit the following documents besides those as listed above:
(1) The articles of association and other legal documents that regulate the organizational procedures and the acts of the management consulting institution;
(2) The photocopies of the industrial and commercial registration documents and business license of the management consulting institution;
(3) The name list and resumes of the senior administration personnel of the management consulting institution
(4) The entrusted management agreement .
Article 11 After the administrative department receives an archival filing application of a startup investment enterprise, it shall, within 5 working days, examine whether or not the archival filing application documents are completed, and shall decide whether or not to accept the application. After it accepts the application, it shall, within 20 working days, examine whether or not the applicant meets the archival filing requirements and issue to it a written notice of "Archival Filing Completed" or "Archival Filing Rejected". If the archival filing application is rejected, the reasons shall be stated in the written notice.
Chapter III The Investment Operations of Startup Investment Enterprises
Article 12 The business scope of a startup investment enterprise is limited to:
(1) to make startup investments;
(2) to act as an agent in the startup investment business of other startup investment enterprises or individuals;
(3) to provide startup investment consulting services;
(4) to provide startup management services to startup enterprises; and
(5) to participate in the establishment of startup investment enterprises and startup investment management consulting institutions.
Article 13 No startup investment enterprise may engage in any guaranty business or real estate business except for the purchase of real estate for its own use.
Article 14 A startup investment enterprise may make investments with its all assets, of which the investments to enterprises shall be limited to the unlisted enterprises. However, after an unlisted enterprise it invests in gets listed, its unassigned shares as well as the allocated shares are not subject to this restriction. It can only deposit its other funds in a bank, and use them to purchase government bonds or other securities with fixed proceeds.
Article 15 A startup investment enterprise may, by signing an investment agreement with the enterprise it invests in, make investments in the unlisted enterprise by way of its stock rights, preferred stocks, convertible preferred stocks and other quasi stock rights.
Article 16 The investments made by a startup investment enterprise into a single enterprise shall not exceed 20% of its total assets.
Article 17 A startup investment enterprise shall, in the articles of association, agreement on entrusted management, and other legal documents, specify the methods for the calculate and deduct method of management and operational fees, or management consulting expenses of the management consulting institution, so as to establish a management cost control mechanism.
Article 18 A startup investment enterprise may draw a certain proportion of investment proceeds as performance-based remuneration to the managerial personnel or to the management consulting institution so as to establish a performance incentive mechanism.
Article 19 A startup investment enterprise may determine a limited time period of existence in advance, but which shall not be less than 7 years.
Article 20 A startup investment enterprise may enhance its investment capacity by way of creditor's right financing in the scope of the clauses of the law..
Article 21 A startup investment enterprise shall, in accordance with the relevant enterprise financial and accounting provisions of the state, establish and improve a sound financial management system and accounting measures.
Chapter IV The Policy Support to Startup Investment Enterprises
Article 22 The state and local governments may establish startup investment direction funds so as to support the establishment and development of startup investment enterprises by way of holding their shares, providing financing guaranties, etc. The concrete management measures shall be formulated separately.
Article 23 The state shall adopt tax preferential policies to support the development of startup investment enterprises and direct them to increase investments to small and medium-sized enterprises, especially the small and medium-sized high and new tech enterprises. The concrete measures shall be separately formulated by the finance and taxation department of the State Council jointly with other relevant departments.
Article 24 A startup investment enterprise may withdraw its investments by transfer of listed equities, transfer of equities by agreement, repurchasing by the invested enterprise or by other means. The relevant departments of the state shall actively push ahead the construction of the multi-level system of market and perfect the investment dropout mechanism for startup investment enterprises.
Chapter V Supervision and Administration over Startup Investment Enterprises
Article 25 A startup investment enterprise and its management consulting institution that have gone through the archival filing formalities in the administrative department shall, in accordance with the provisions of all the articles in Chapters II and III of these Measures, carry out investment operations and shall accept the supervision and administration of the administrative department.
Article 26 A startup investment enterprise and its management consulting institution that have gone through the archival filing formalities in the administrative department shall, within 4 months after the end of each fiscal year, submit their annual financial statements and business reports audited by certified public accountants to the administrative department, and shall report to it the significant events during its investment operation course. The "significant events" as mentioned in the preceding paragraph refers to:
(1) revisions to the articles of association and other important legal documents;
(2) increase or reduction of capital;
(3) split-up or merger,
(4) change of senior management personal or management consulting institution; and
(5) liquidation and termination of business.
Article 27 The administrative department shall, within 5 months after the end of each fiscal year, conduct an annual inspection over the startup investment enterprise and its management consulting institution so as to determine whether or not it complies with the provisions of all the articles in Chapters II and III. Where necessary, it may, within the range as prescribed by the relevant articles of Chapters II and III, irregularly carry out inspections over its investment operations. If it fails to carry out investment operations by following the provisions of all the articles in Chapters II and III of these Measures, it shall be ordered by the administrative department to make corrections within 30 working days. If it fails to make corrections, its archival filing shall be canceled and its new application for archival filling during the coming 3 years shall be rejected.
Article 28 The administrative departments of all provinces (including sub-provincial cities) shall timely report the information about the archival filing of startup investment enterprises within their respective jurisdiction to the administrative department of the State Council and shall, within 6 months after the end of each fiscal year, report the information about the investment operations of the startup investment enterprises that have been listed in the scope of archival filing administration.
Article 29 The administrative department of the State Council shall strengthen the guidance to the administrative departments of all provinces (including sub-provincial cities). If any of them fails to fulfill the administrative functions or fails to manage properly, it shall propose it to make corrections. If any bad consequences are caused, it shall propose it to hold the relevant managerial personnel liable for their negligence of duties.
Article 30 The startup investment associations shall, according to these Measures, relevant laws, rules and regulations, carry out self-disciplinary management over the startup investment enterprises and maintain the rights and interests of this sector.
Chapter VI Supplementary Provisions
Article 31 The power to interpret these Measures shall remain with the National Development and Reform Commission jointly with other relevant departments.
Article 32 These Measures shall come into force as of March 1, 2006.
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杨春宝一级律师简介
杨春宝一级律师，大成上海高级合伙人、资本市场部主任、国资基金研究中心主任，大成中国区私募基金专业带头人、科技与文化法律研究中心联合牵头人。执业30余年，长期从事私募基金、投融资、并购重组法律服务，尤其对对赌研究颇深且具有非常丰富的实战经验，并专注于金融机构股权投资业务。2004年起多次入选The Legal 500"私募基金"和"公司与商业"等境内外各类律师榜单，代理的中国法院首例适用外国法律审理外国公司的董事损害小股东权益纠纷案入选上海高院发布的《上海法院域外法查明典型案例》和威科先行"要案头条"。入选上海涉外法律人才库、上海市司法局鼎新法治人才库、上海国有企业改制法律顾问团，具有上市公司独立董事任职资格，系多家知名高校的兼职教授或兼职研究生导师及上海市商务委跨国经营人才培训班讲师。出版《私募股权投资基金风险防控操作实务》等16本投融资法律专著。了解更多常见法律问题
创业投资企业的备案条件有哪些？
根据现行管理规范，创业投资企业完成工商注册后，如需办理备案，须满足以下核心条件：第一，已依法在工商行政管理部门登记注册，且经营范围符合关于创业投资业务的规定，即主要投资于未上市的高成长性创业企业。第二，实缴资本要求为不低于人民币3000万元，或者首期实缴资本不低于1000万元且全体投资者承诺在注册后五年内补足至不低于3000万元，但全体投资者均须以货币形式出资。第三，投资者人数有限制，若采取有限责任公司形式，投资者人数不得超过50人；其他形式不得超过200人，且单个投资者对创业投资企业的投资金额不得低于100万元，以确保投资者具备相应的风险承受能力。第四，企业须配备至少3名具有2年以上创业投资或相关业务经验的高级管理人员，负责投资管理；若委托其他创业投资企业或管理咨询机构担任管理顾问，则该受托机构同样须具备至少3名符合经验要求的高级管理人员。高级管理人员一般指副总经理及以上职务或同等职级人员。备案时应提交公司章程、工商登记证明、投资者名单与出资承诺、高管名单及履历等材料；若委托管理，还需提交管理协议及受托机构的相关文件。需注意，备案并非强制要求，但未备案的创业投资企业将不受监管部门监督，也无法享受国家给予的税收优惠、引导基金支持等政策红利。实务中，企业应确保备案材料真实完整，避免因资本未按期到位或高管资格不符而被驳回。
创业投资企业未备案会有什么法律后果？
创业投资企业未办理备案，最直接的法律后果是不得以备案企业的身份开展投资运营，也无法享受国家针对创业投资企业出台的各项政策支持，包括税收优惠、财政补贴、政府引导基金参股等激励措施。从监管层面看，未备案企业不属于创业投资企业备案管理部门的监督对象，因此其投资活动不受该行政部门的日常监管和合规指导，但这并不意味着其可以规避其他法律法规的约束。具体而言，未备案的创业投资企业仍然必须遵守公司法、合同法等基础民商事法律，其设立、变更、投资交易及内部治理等行为仍受工商行政管理部门、证券监管部门等其他机关依法监管。如果企业形式上符合创业投资特征但故意不备案，可能无法被认定为法律意义上的创业投资企业，进而影响其在税收上的优惠资格。例如，享受创业投资企业投资中小高新技术企业按一定比例抵扣应纳税所得额的税收优惠，通常以已备案为前提条件。此外，某些地方政府出台的配套扶持政策也明确将备案作为申报门槛。因此，未备案的创业投资企业在融资、退出、后续合规检查中可能面临实质障碍。实务中，监管部门与引导基金在尽职调查时也会核查备案文件，若企业缺失备案，可能导致合作机会丧失或已签署的投资协议无法适用相关优惠条款。企业应在设立后及时评估自身条件，尽快完成备案，以保障合规权益。
创业投资企业可以采取哪些组织形式？
创业投资企业在我国现行法律框架下，可以依法采取有限责任公司、股份有限公司以及其他法律允许的企业组织形式。所谓其他组织形式，实务中包括有限合伙企业等，但需符合相关法律法规关于企业设立的一般要求。管理规范特别明确，采取公司制的创业投资企业，可以将投资管理事务委托给另一家创业投资企业或专门的创业投资管理咨询机构负责，委托方与受托方之间的关系适用民法典及合同法律规范调整，双方通过签订委托管理协议明确权利义务。选择组织形式时，企业应综合考虑税收负担、治理结构、资本流动性和投资者责任承担方式等因素。有限责任公司和股份有限公司具有独立的法人资格，股东以其认缴出资或所持股份为限对公司承担责任，适合追求规范治理和长期稳定投资的创业投资基金。有限合伙企业则具有税收穿透、管理激励灵活等优势，也是目前创业投资市场上普遍采用的组织形式，但需遵循合伙企业法相关规定。无论采取何种形式，备案条件中对实缴资本、投资者人数、单个投资者最低出资额以及高级管理人员经验的要求均需满足。特别是投资者人数若采用股份有限公司形式不超过200人，有限责任公司不超过50人，合伙企业则需符合合伙企业法对合伙人数的限制。实务中，创业投资企业应在设立前提前规划资本安排与管理团队配置，若拟委托管理，还须确保受托机构同样具备相应资质，避免因组织形式选择不当而导致备案受阻。
以上内容仅供参考，不构成法律意见。如需专业法律服务，请联系杨春宝一级律师：chambers.yang@dentons.cn
