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
创业投资企业备案需满足哪些条件？
根据《创业投资企业管理暂行办法》规定，创业投资企业申请备案须同时满足多项实质条件。首先，企业必须已在工商行政管理部门依法完成设立登记，且经营范围符合创业投资相关业务要求，即实收资本中相当部分需投向未上市成长性企业。其次，实收资本或实际出资额存在双重标准：一种是实缴资本总额不低于3000万元人民币，另一种是首期实缴不低于1000万元，同时全体投资者须承诺在注册登记后五年内补足至不低于3000万元，这一安排为分期出资提供了空间，但必须严格履行承诺。第三，投资者人数有明确上限，有限责任公司形式下不超过50人，其他形式不超过200人，且单个投资者对创业投资企业的出资额不得低于100万元人民币，全部出资必须以货币形式缴纳，不得以实物、知识产权等非货币财产作价出资，目的旨在保障创投资本的流动性和可监管性。第四，企业须配备至少3名高级管理人员，该等人员须具有两年以上创业投资或相关业务经验，负责投资管理事务。若企业选择委托其他创投企业或管理咨询机构代管投资业务，则受托机构自身也必须配备至少3名符合上述经验要求的高级管理人员。此外，申请备案时还需提交企业章程、工商登记文件、投资者名单及出资承诺、高管名单及履历等材料，委托管理的还需提交管理协议等文件。实务中，备案机关会对材料进行形式与实质审查，存在虚假出资或经验证明不实的可能被拒绝备案。风险提示在于，备案条件属于行政管理门槛，若企业中途变更资本或人员导致不再符合条件，可能面临备案失效或监管处罚。常见争议焦点包括分期出资的补足时限起算点、高管的“相关业务经验”认定标准，以及多个投资人委托代持情况下人数边界如何判定。建议拟备案企业提前对照条件自查，确保合规。
创业投资企业备案后有何政策支持？不备案有何影响？
备案制度是创业投资企业获得政策支持的法定前置程序。按照《创业投资企业管理暂行办法》第三条的规则，完成备案的创业投资企业应当接受备案管理部门的监管，同时在其投资运作符合相关规定的前提下，可以享受国家及地方出台的税收优惠、财政补贴、引导基金配套投资、政府项目对接等政策支持。实践中，备案企业通常更容易获得创业投资引导基金的参股或跟进投资，也具备申请高新技术企业投资税收抵扣等优惠待遇的资格。未按照办法规定办理备案的创业投资企业，虽然可以依法开展投资活动，但不得接受创业投资企业管理部门的监督，也无法享受针对创投企业的专项政策扶持。这意味着，即使企业实际从事创业投资业务，若未备案，在税收减免、政府奖励、上市退出便利等方面将丧失制度红利，与其竞争对手产生显著成本劣势。此外，备案管理属于行政监管的重要抓手，已备案企业须履行信息报告义务，按照要求定期向备案部门报送投资运作、资本变动、高管变更等情况，接受合规检查。若不备案，则不承担这些报告义务，但同时也失去了政策确定的“合法身份”背书，可能在对外融资、与国有资本合作、参与政府引导基金子基金遴选时遇到障碍。值得注意的是，外资创业投资企业适用专门的外商投资创业投资企业管理规定，但依法设立且投资运作符合条件的外资创投企业，也可以享受与内资备案创投企业相同的政策支持，具体须参照专门程序办理。实务中常见误区是认为备案可有可无，或者先投资后备案，但实际上部分税收优惠政策要求企业在投资发生前即已具备备案资格，事后补备案可能无法追溯享受优惠。风险提示：未备案而擅自宣称享受政策支持可能引发虚假宣传或行政责任。建议创业投资企业设立后尽快申请备案，并持续保持备案条件，避免因股权变更或高管离职导致备案被撤销。
创业投资企业的设立形式及管理模式有何规定？
根据《创业投资企业管理暂行办法》的规定，创业投资企业可以采取有限责任公司、股份有限公司以及其他法律法规允许的企业组织形式设立。这一弹性设计既允许传统公司制运作，也为有限合伙等新型组织形态后续纳入留有空间。需要明确的是，不同组织形式适用不同的投资者人数上限：有限责任公司形式的创业投资企业，投资者人数不得超过50人；股份有限公司或其他形式则不得超过200人，这与公司法对有限责任公司股东人数上限和股份有限公司发起人数上限的底线要求保持一致。同时，所有投资者对创业投资企业的单个出资额不得低于100万元，且必须以货币形式出资，这有助于保证创投基金的资金充裕性和投资者适格性，避免实物出资带来的估值争议和流动性风险。在管理模式上，办法明确允许创业投资企业将投资管理事务委托给另一家创业投资企业或创业投资管理咨询机构，由受托机构作为其管理顾问机构负责具体投资决策和投后管理。这种委托管理模式实为创投行业中“有限合伙人加普通合伙人”或“基金管理人”结构的法律渊源之一。委托方与受托方之间的权利义务关系，适用民事法律中的委托代理规则，双方应当签订书面的委托管理协议，明确管理权限、投资范围、费用收取、违约责任等条款。还需注意，受托机构本身同样须具备至少3名具有两年以上创投经验的高管，且该机构自身应当依法设立并具备相应资质。创业投资企业或者受托管理机构的登记，应当直接向工商行政管理部门申请，无需事先取得前置审批，这体现了商事登记便利化原则。备案登记则另行向发改部门办理，与工商登记是两套程序。实务建议：选择委托管理时，务必核查受托机构的高管履历和经验证明，在协议中细化投资限制条款，并约定备案信息变更时的通知义务。常见争议点在于受托机构超越权限投资造成亏损时责任如何分担，以及部分投资者主张未收到充分信息披露是否影响委托协议效力。
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
