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公开劝诱禁令是美国传统私募发行的核心要素之一,但由于其成文法根据和理论基础的薄弱、过于模糊和宽泛而阻碍了企业融资以及与互联网时代的信息交流方式不协调等弊端而屡屡受到各界批评。在创业融资危机的背景下,美国于2012年通过的《JOBS法案》部分地取消了私募发行中的公开劝诱禁令,同时要求证券发行人根据SEC所制定的规则和方法采取合理步骤核实购买人的获许投资者身份。公开劝诱禁令的取消是私募发行制度自创立以来最为重大的变革,其对于促进企业融资具有明显的效果,但同时也带来投资者保护和证券欺诈的担忧以及证券发行的公私分界的理论争议。我国私募发行中的公开劝诱禁令同样面临着与美国类似的问题,通过对美国公开劝诱禁令取消的立法与实践的考察可为我国公开劝诱禁令的取舍提供经验借鉴。
Public persuasion is one of the core elements of the traditional private placement in the United States. However, due to its weakness, weakness and ambiguity in its written law and theoretical foundation, it has been repeatedly subjected to the drawbacks of corporate financing and inconsistent exchange of information with the Internet era criticism. In the context of the start-up financing crisis, the JOBS Act passed by the United States in 2012 partly canceled the public invitation to bargain in private offerings and required stock issuers to take reasonable steps to verify the purchasers’ rights according to the rules and methods set by the SEC Permitted investor status. The cancellation of public persuasion bailout is the most significant change in the private placement system since its establishment. It has obvious effects on promoting corporate financing, but it also brings about the investor protection and securities fraud concerns as well as the theoretical controversy between public and private sectors of securities issuance. The public persuasion ban in the private placement of our country also faces the similar problems with the United States. Through the investigation of the legislation and practice that the United States publicly persuades to cancel the ban, it can provide experiences and lessons for the choice of public persuasion in our country.