Corporate/Commercial Guangdong: Reform Highlights and Expectations of Relevant Rules for Full Implementation of Stock Issuance Registration System
Reform Highlights and Expectations of Relevant Rules for Full Implementation of Stock Issuance Registration System
On 17 February 2023, the China Securities Regulatory Commission (the "CSRC") issued the relevant rules for the full implementation of the stock issuance registration system (the "SIR System") with immediate effect. The supporting rules of the stock exchanges and NEEQ Co., Ltd. were released and took effect simultaneously. The full implementation of the SIR System is a milestone for China's capital market with plenty of implications. It not only means that the registration system will apply to the stock issuance on the Main Board previously subject to the approval system, but also indicates that the STAR Market, the ChiNext Market and the Beijing Stock Exchange which have already piloted the registration system, will truly respond to the relationship between the market and the government through learning from the lessons and experience during the pilot phase, so that the provisions on the SIR System under the Securities Law of the People’s Republic of China can be fully put into practice. The full implementation of the SIR System involves a wide range of regulations and has far-reaching effects, certain highlights and expectations of which are summarised below.
I. Transformation of the CSRC's functions: the review by stock exchanges and the registration with the CSRC have their respective focuses but are coherent
As stated in the Answers of the CSRC’s Relevant Persons in Charge to the Questions Raised by Reporters on the Full Implementation of the Stock Issuance Registration System, the review and registration structure that consists of the review by stock exchanges and the registration with the CSRC has been explored and established during the pilot phase of the registration system. While maintaining the above basic structure unchanged, the current reform aims to effect further optimisation, further clarify the division of responsibilities between the stock exchanges and the CSRC, improve the efficiency and predictability of reviews and registrations, and strengthen the CSRC's supervision and guidance over the reviews performed by the stock exchanges.
The above reform concept is reflected in the following specific rules. Under the former Administrative Measures of Registration of Initial Public Offerings on the STAR Market (Trial) and Administrative Measures of Registration of Initial Public Offerings on the ChiNext Market (Trial), the CSRC needed to check whether there are omissions in the matters of issuance and listing reviewed by the stock exchanges, and whether the issuers comply with provisions on issuance conditions and information disclosure requirements in material respects, but under the newly issued Administrative Measures of Registration of Initial Public Offerings ("IPO Measures"), the focus of the CSRC shifts to "whether the issuers comply with national industrial policies and the positioning of relevant board" and "additional matters affecting the issuance conditions", the review of the projects per se should no longer be included into its main scope of work. The same rules apply to refinancing activities.
During the pilot phase of the registration system, regardless of whether the CSRC decides to register, certain questions raised by the CSRC in the registration feedback phase overlap those raised by the stock exchanges in the review phase. The IPO Measures highlight the transformation of the CSRC's functions. The CSRC and the stock exchanges shall have their respective focuses, so as to avoid excessive overlaps with the reviews between the two and prevent a waste of review resources. We would like to observe how it is delegated and fully implemented in review practices in the future.
II. Unifying issuance conditions, optimising listing conditions and presenting a clearer positioning of multi-level capital market
The IPO Measures repealed the former provisions on initial public offerings on the Main Board, the STAR Market and the ChiNext Market, and the provisions on initial public offerings are unified thereby. The legislative logic in relation to issuance and listing conditions is based on the lessons drawn from the pilot registration system, i.e., drawing a distinction between issuance conditions and listing conditions. The former are governed by the IPO Measures and apply to all three boards, while the later, i.e., listing conditions (such as market capitalisation and financial indicators), together with the specific standards, are governed by listing rules and relevant supporting documents of the stock exchanges according to different boards.
As for the market capitalisation and financial indicators in the listing conditions for ordinary enterprises (except for red-chip enterprises and unprofitable enterprises), the new rules remove the restrictions on the proportion of intangible assets and the absence of undistributed deficit, introduce three sets of more flexible standards on market capitalisation and financial indicators, as compared to the former set of financial indicators for listing on the Main Board, by drawing lessons from the pilot registration system, and incorporate provisions on red-chip enterprises and enterprises with differential voting right arrangements, opening up a channel for red-chip enterprises and enterprises with differential voting right arrangements to list on the Main Board.
As indicated by relevant provisions on listing conditions, the post-reform Main Board has significantly raised the requirements on financial indicators, further distancing itself from the STAR Market and the ChiNext Market and presenting a clearer multi-level capital market system that basically covers enterprises within different industries, of different types and in different stages of growth. The Main Board mainly serves mature and large-scale enterprises. The STAR Market focuses on the characteristics of "hard science and technology" and play the role of a "testing ground" for the capital market reform. The ChiNext Market mainly serves growth-oriented innovative and start-up enterprises. The Beijing Stock Exchange and the NEEQ work together to serve innovative small and medium-sized enterprises. We also expect that the post-reform Main Board will subsequently release industry-specific guidelines to reduce disputes over application in practice, just as the STAR Market and the ChiNext Market have clarified their respective positioning of board by specifically listing industry attributes and matching corresponding quantitative indicators.
III. The end of the issuance examination committee system and the start of the “New Two Committees” review
Pursuant to the Notice on the Transition Arrangements for Administrative Licensing Matters before and after the Full Implementation of the Stock Issuance Registration System, the CSRC terminates the review of initial public offerings, refinancing, mergers and acquisitions and reorganisations of relevant enterprises under review on the Main Board and transfers the review order and materials of the enterprises under review to the stock exchanges as of the issuance date of main rules for the full implementation of the registration system, which means the 30-year-long A-share issuance examination committee system is terminated and replaced with the Listing Review Committee and the M&A and Reorganisation Review Committee ("New Two Committees") organised under the Administrative Measures of the Listing Review Committee and the M&A and Reorganization Review Committee of Shenzhen Stock Exchange and Shanghai Stock Exchange. The full implementation of the SIR System reform has improved the composition, term of office, duties and procedural rules of the New Two Committees, and imposed higher requirements on political quality, professional background and professional ethics of the committee members. The New Two Committees mainly consist of full-time members who are professionals with securities regulatory experience. Meanwhile, the mechanism will be established and strengthened by the CSRC to supervise the issuance and listing review performed by the stock exchanges. The CSRC will pay attention to and supervise the implementation of the review concept and standards by the stock exchanges through annual routine inspections and regular or irregular random inspections at a certain percentage. We expect that the whole process of issuance and listing will be more standardised, transparent and predictable in the context of the registration system reform with information disclosure as its core concept.
全面实行股票发行注册制相关制度规则改革亮点及期待
2023年2月17日，中国证券监督管理委员会（“中国证监会”）发布全面实行股票发行注册制相关制度规则，自公布之日起施行。证券交易所、全国中小企业股份转让系统有限责任公司等配套制度规则同步发布实施。全面实行股票发行注册制是中国资本市场的一件里程碑式的大事，其含义甚丰：全面实行意味着不仅是原先实行核准制的主板股票发行制度调整为注册制，且原先就已经试点注册制的科创板、创业板及北京证券交易所将全面吸收试点阶段的经验教训，真正回应市场和政府的关系，将在立法渊源层面的《中华人民共和国证券法》所规定的股票发行注册制从规定到实操全面落地。此次全面实行股票发行注册制涉及面广且影响深远，我们将其中部分亮点及期待总结如下。
一、中国证监会职能转变：证券交易所审核和中国证监会注册各有侧重并相互衔接
根据《证监会有关部门负责人就全面实行股票发行注册制答记者问》，在试点注册制阶段，已探索建立了证券交易所审核、中国证监会注册两个环节的审核注册架构，此次改革在保持该基本架构不变的基础上做进一步优化，进一步明晰证券交易所和中国证监会的职责分工，提高审核注册的效率和可预期性。同时，加强中国证监会对证券交易所审核工作的监督指导。
上述改革理念在具体规则层面的立法体现是，原《科创板首次公开发行股票注册管理办法（试行）》《创业板首次公开发行股票注册管理办法（试行）》规定，中国证监会需要关注证券交易所发行上市审核内容有无遗漏，还要关注发行人在发行条件和信息披露要求的重大方面是否符合相关规定，而在新《首次公开发行股票注册管理办法》（“《首发注册管理办法》”）规定下，中国证监会的关注重点转移到了“发行人是否符合国家产业政策和板块定位”、“影响发行条件的新增事项”，审核项目本身应不再成为其主要工作范围。再融资领域亦是同样规定。
在试点注册制实践阶段，无论中国证监会是否决定予以注册，中国证监会于注册反馈阶段提出的问题与证券交易所审核阶段的问询问题均存在部分重合。《首发注册管理办法》强调中国证监会的职能转变，与证券交易所审核各有侧重，就是旨在避免与证券交易所的审核工作过多重叠，造成审核资源的浪费，在未来的审核实践中如何放权并充分落地，值得我们观察和期待。
二、统一发行条件立法、优化上市条件，多层次资本市场定位更加清晰
《首发注册管理办法》废止了原主板、科创板、创业板首发规定，自此，三个板块首发规定统一于一部《首发注册管理办法》。其中关于发行上市条件的立法逻辑吸取了试点注册制的经验，即区分发行条件和上市条件，发行条件由《首发注册管理办法》进行规制，三个板块均适用；市值及财务指标等上市条件及具体标准则根据申报板块的不同由各证券交易所的上市规则及相关配套文件规制。
就一般企业（红筹企业、未盈利企业除外）上市条件中的市值及财务指标条件，新规删除了无形资产比例限制及不存在未弥补亏损的限制，相较于原主板上市一套财务指标标准，新规亦吸取了试点注册制的经验，引入更加灵活的三套市值及财务指标标准，同时纳入关于红筹企业表决权差异安排企业的规定，为红筹企业和表决权差异安排企业在主板上市开放了通道。
从相关上市条件规定可以看出，改革后的主板大幅提高了对财务指标的要求，与科创板、创业板进一步拉开距离，多层次资本市场体系将更加清晰，基本覆盖不同行业、不同类型、不同成长阶段的企业。主板主要服务于成熟期大型企业。科创板突出“硬科技”特色，发挥资本市场改革“试验田”作用。创业板主要服务于成长型创新创业企业。北交所与全国股转系统共同打造服务创新型中小企业主阵地。我们也期待，如科创板、创业板通过明确列举行业属性及匹配相应的定量指标来明晰板块定位一样，改革后的主板后续发布具体的行业属性指引，减少实践中的适用争议。
三、告别发审委制度，开启“新两委”审核时代
根据《关于全面实行股票发行注册制前后相关行政许可事项过渡期安排的通知》，全面实行注册制主要规则发布之日起，中国证监会终止主板在审企业首次公开发行股票、再融资、并购重组的审核，并将相关在审企业的审核顺序和审核资料转证券交易所，这意味着A股实行长达30年的发审委制度告别历史舞台，取而代之的是根据《深圳证券交易所上市审核委员会和并购重组审核委员会管理办法》《上海证券交易所上市审核委员会和并购重组审核委员会管理办法》组建的上市审核委员会和并购重组审核委员会（“新两委”）。全面实行股票发行注册制改革完善了“两委”人员组成、任期、职责和议事规则，对政治素质、专业背景、职业操守提出更高要求，在人员构成方面以具有证券监管经验的专业人员担任的专职委员为主。同时，强化中国证监会建立对证券交易所发行上市审核工作的监督机制，通过年度例行检查及定期或不定期按一定比例随机抽查等方式关注并监督证券交易所审核理念、标准的执行情况。我们期待在以信息披露为核心理念的注册制改革背景下，发行上市全过程将更加规范、透明、可预期。