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国务院办公厅关于严厉打击非法发行股票和非法经营证券业务有关问题的通知
(国办发〔2006〕99号)
各省、自治区、直辖市人民政府，国务院各部委、各直属机构：
近年来，非法发行股票和非法经营证券业务（以下简称非法证券活动）在我国部分地区时有发生，个别地区甚至出现蔓延势头，严重危害社会稳定和金融安全。为贯彻落实公司法和证券法有关规定，维护证券市场正常秩序和广大投资者的合法权益，经国务院同意，现就严厉打击非法证券活动有关问题通知如下：
一、提高认识，统一思想，坚决遏制非法证券活动蔓延势头
非法证券活动具有手段隐蔽、欺骗性强、蔓延速度快、易反复等特点，涉及人数众多，投资者多为退休人员、下岗职工等困难群众，容易引发群体事件。当前，非法证券活动的主要形式为：一是编造公司即将在境内外上市或股票发行获得政府部门批准等虚假信息，诱骗社会公众购买所谓“原始股”；二是非法中介机构以“投资咨询机构”、“产权经纪公司”、“外国资本公司或投资公司驻华代表处”的名义，未经法定机关批准，向社会公众非法买卖或代理买卖未上市公司股票；三是不法分子以证券投资为名，以高额回报为诱饵，诈骗群众钱财。
地方各级人民政府、国务院有关部门要进一步统一思想，高度重视，充分认识非法证券活动的危害性，增强政治责任感。要完善打击非法证券活动的政策法规和联合执法机制，查处一批大案要案，依法追究有关人员的责任，建立健全防范和打击非法证券活动的长效机制，从根本上遏制非法证券活动蔓延势头。
二、明确分工，加强配合，形成打击非法证券活动的执法合力
为加强组织领导，由证监会牵头，公安部、工商总局、银监会并邀请高法院、高检院等有关单位参加，成立打击非法证券活动协调小组，负责打击非法证券活动的组织协调、政策解释、性质认定等工作。协调小组办公室设在证监会。证监会要组织专门机构和得力人员，明确职责，加强沟通，与相关部门和省级人民政府建立反应灵敏、配合密切、应对有力的工作机制。
非法证券活动查处和善后处理工作按属地原则由各省、自治区、直辖市及计划单列市人民政府负责。非法证券活动经证监会及其派出机构认定后，省级人民政府要负责做好本地区案件查处和处置善后工作。涉及多个省（区、市）的，由公司注册地的省级人民政府牵头负责，相关省（区、市）要予以积极支持配合。发现涉嫌犯罪的，应及时移送公安机关立案查处，并依法追究刑事责任。未构成犯罪的，由证券监管部门、工商行政管理部门根据各自职责依法作出行政处罚。
地方各级人民政府要高度重视，统筹安排，周密部署，建立起群众举报、媒体监督、日常监管和及时查处相结合的非法证券活动防范和预警机制，制订风险处置预案。对近年来案件多发的地区，有关地方人民政府要迅速开展查处、取缔工作，果断处置，集中查处一批典型案件并公开报道，震慑犯罪分子，教育人民群众，维护社会稳定。
三、明确政策界限，依法进行监管
（一）严禁擅自公开发行股票。向不特定对象发行股票或向特定对象发行股票后股东累计超过200人的，为公开发行，应依法报经证监会核准。未经核准擅自发行的，属于非法发行股票。
（二）严禁变相公开发行股票。向特定对象发行股票后股东累计不超过200人的，为非公开发行。非公开发行股票及其股权转让，不得采用广告、公告、广播、电话、传真、信函、推介会、说明会、网络、短信、公开劝诱等公开方式或变相公开方式向社会公众发行。严禁任何公司股东自行或委托他人以公开方式向社会公众转让股票。向特定对象转让股票，未依法报经证监会核准的，转让后，公司股东累计不得超过200人。
（三）严禁非法经营证券业务。股票承销、经纪（代理买卖）、证券投资咨询等证券业务由证监会依法批准设立的证券机构经营，未经证监会批准，其他任何机构和个人不得经营证券业务。
违反上述三项规定的，应坚决予以取缔，并依法追究法律责任。
证监会要根据公司法和证券法有关规定，尽快研究制订有关公开发行股票但不在证券交易所上市的股份有限公司（以下简称非上市公众公司）管理规定，明确非上市公众公司设立和发行的条件、发行审核程序、登记托管及转让规则等，将非上市公众公司监管纳入法制轨道。
四、加强舆论引导和对投资者教育
证监会、公安部等有关部门要指导地方各级人民政府，广泛利用报纸、电视、广播、互联网等传媒手段，多方位、多角度地宣传非法证券活动的表现形式、特点、典型案例及其严重危害，提高广大投资者对非法证券活动的风险意识和辨别能力，预防非法证券活动的发生，防患于未然。
国务院办公厅
二○○六年十二月十二日
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Notice of the General
Office of the State Council on Several Issues about
Rigorously Cracking Down on Illegal Issuance of
Stocks and Illegal Operation of Securities Business
(No.99 [2006] of the General Office of the State
Council)
The people’s governments of all provinces,
autonomous regions and municipalities directly under
the Central Government, all ministries and
commissions of and departments directly under the
State Council:
In recent years, in some regions of China, illegal
issuance of stocks and illegal operation of
securities business (hereinafter referred to as
illegal securities activities) occur now and then,
in one or two regions, this trend even tends to
spread, which seriously endangers social stability
and financial security. In order to implement the
relevant provisions of the laws on company and
securities, maintain the normal order of securities
market and safeguard the legitimate rights and
interests of the vast number of investors, upon the
consent of the State Council, we hereby notify the
relevant issues about rigorously cracking down on
illegal securities activities as follows:
1. Enhancing the awareness, unifying the thoughts
and firmly keeping the spreading trend of illegal
securities activities under control
Illegal securities activities have such
characteristics as hidden means, deep fraudulence,
fast spreading and easy re-occurrence, etc, in
addition, they involve large amount of people, as
most investors are retirees, off-duty employees and
other mass with difficulties, it is easy to cause
mass incident. At present, illegal securities
activities are mainly carried out in the following
forms: first, making up such false information as
that a company is about to be listed domestically or
overseas or that the issuance of stocks has been
approved by the relevant governmental department so
as to beguile the general public to purchase the
so-called “original issue stock”; secondly, illegal
intermediate organs, without being approved by
statutory organs, illegally purchase/sell, directly
or upon agency, the stocks of unlisted companies
from/to the general public in the name of
“investment consultant institution”, “property right
brokerage company” or “representative office of
foreign-funded company or foreign investment company
in China”; thirdly, in the name of securities
investment, lawbreakers defraud the money and
properties of the mass by luring them with large
amount of return.
All local people’s governments and the relevant
departments under the state council shall further
unifying the thoughts, attach great importance, be
sufficiently aware of the hazardness of illegal
securities activities and increase political
responsibility. They shall perfect the policies and
regulations on cracking down on illegal securities
activities and the mechanism of joint law
enforcement, investigate and punish a batch of major
and important cases, investigate the
responsibilities of the relevant personnel according
to law, establish and improve a long-term effective
mechanism to prevent and crack down on illegal
securities activities so as to put an end to the
spreading trend of illegal securities activities at
the root.
2. Clearly dividing the work, strengthening
cooperation and forming a resultant force of law
enforcement to crack down on illegal securities
activities
To strengthen the organization and leadership, with
China Securities Regulatory Commission acting as the
leading role and by inviting the Supreme People’s
Court and the Supreme People’s Procuratorate to
participate in, the Ministry of Public Security, the
State Administration for Industry and Commerce and
China Banking Regulatory Commission establish a
coordinating group to crack down on illegal
securities activities, which shall be responsible
for the organization and coordination of the work
concerning cracking down on illegal securities
activities, interpretation of the relevant policies
and the determination of nature. The office of the
coordinating group is at China Securities Regulatory
Commission, which shall organize special organs and
competent personnel, clarify the duties, strengthen
communication and, together with the relevant
departments and the provincial people’s governments,
establish a working mechanism that may provide quick
and effective response and close cooperation.
The people’s governments of all provinces,
autonomous regions, municipalities directly under
the Central Government and the cities under separate
state planning shall be responsible for the
investigation, punishment and the follow-up handling
work of illegal securities activities in accordance
with the principle of territory. As long as an
illegal securities activity is determined by China
Securities Regulatory Commission or any of its
dispatched office, the provincial people’s
government shall be responsible for doing a good job
in the investigation, punishment and the follow-up
handling work of such illegal securities activity
within its jurisdiction. If several provinces
(regions, cities) are involved, the provincial
people’s government of the place where the company
involved is registered shall bear the leading
responsibility, and the relevant provinces (regions,
cities) shall provide active support and
coordination. In case of a suspected crime, the case
shall be transferred to the public security organ in
a timely manner, which shall put the case on record
and investigate the criminal liabilities according
to law. Where no crime is constituted, the
securities regulatory department and the
administrative department of industry and commerce
shall impose administrative punishment according to
law and in light of their respective duties.
The local people’s governments of all levels shall
attach great importance, make overall arrangement,
deploy in a comprehensive way, establish a
pre-warning mechanism that combines the tip-offs by
the mass, media supervision and daily supervision
and administration with timely investigation and
punishment to prevent illegal securities activities,
and formulate risk disposing plan. As for the
regions such cases occur frequently in recent years,
the relevant local people’s governments shall carry
out the investigation, punishment and banning work
immediately after a case occurs, decisively dispose,
investigate and punish a batch of typical cases in a
concentrated way and report them publicly to
frighten the criminals, educate the mass and
maintain social stability.
3. Clarifying policy limits and supervising and
administering according to law
(1) strictly forbidding issuing stocks to the public
without authorization. Issuing stocks to the public
means an act of issuing stocks to unspecified
objects or that the accumulated number of the
shareholders exceeds 200 after issuing stocks to
specified objects, which shall be reported to China
Securities Regulatory Commission for examination and
approval in advance. It is illegal issuance of
stocks to issue stocks without obtaining the
approval from China Securities Regulatory
Commission.
(2) strictly forbidding issuing stocks to the public
in any disguised form. Non-public issuance of stocks
means that the accumulated number of the
shareholders is below 200 after issuing stocks to
specified objects. The stocks of non-public issuance
and its stock equity may not be issued and
transferred to the social public in such public
ways, either directly or in any disguised form, as
advertisement, public announcement, broadcasting,
telephone, fax, letter, recommendation fair,
explanation meeting, network, short message, public
inducement, etc. The corporate shareholders shall be
strictly prohibited from transferring stocks to the
social public in public way, either by themselves or
by entrusting other persons. In the case of
transferring stocks to specified objects, if it is
not reported to China Securities Regulatory
Commission for examination and approval, the
accumulated number of the shareholders after the
transfer may not exceed 200.
(3) strictly forbidding the illegal operation of
securities business. Stock underwriting, brokering
(buying and selling upon agency), securities
investment consultation and other securities
businesses shall be operated by the securities
institutions established upon the approval of China
Securities Regulatory Commission according to law.
Without obtaining the approval of China Securities
Regulatory Commission, no other institution or
individual may operate any securities business.
Any entity or individual that violates any of the
above-mentioned three provisions shall be clamped
down firmly, and the legal responsibilities shall be
investigated according to law.
China Securities Regulatory Commission shall, in
accordance with the relevant provisions of the laws
on company and securities, study and formulate the
administrative provisions for the limited liability
companies that issue stocks to the public but are
not listed in securities exchanges (hereinafter
referred to as unlisted public companies), and
determine the conditions for the establishment and
issuance of stocks of unlisted public companies,
procedure for issuance examination and approval and
rules for registration, custody and transfer, etc,
so as to bring the supervision and administration of
unlisted public companies into the track of legal
system.
4. Strengthening the efforts in guiding public
opinions and the education toward investors
China Securities Regulatory Commission, the Ministry
of Public Security and other relevant departments
shall guide the local people’s governments of all
levels to publicize the forms, characteristics,
typical cases and severe hazards of illegal
securities activities in an all-round and
multi-angle way by comprehensively utilizing such
media as newspaper, television, broadcast, internet,
etc, so as to improve the consciousness and
capability of the vast number of investors in
identifying and preventing the risks of illegal
securities activities and prevent the occurrence of
such activities, nipping them in the bud.
General Office of the State Council
December 12th, 2006
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