中国民办教育行业私募股权投资的法律结构

中国民办教育行业的私募股权投资，自从2006年新东方教育集团上市后开始掀起规模性的热潮。根据我们的观察，随后投资热点经历了轻资产而市场充分竞争的培训业务、重资产并主要依赖计划内指标的高等教育、连锁经营的学前教育、应试教育催生的课外辅导等；
The wave of private equity investments in the private education industry in China began with the listing of New Oriental Education & Technology Group in 2006. Based on our observations, the focus of PE investment subsequently has run the gamut of the asset-light and highly competitive training business, asset-heavy higher education mainly relying on national planned admission quotas, pre-school education run as a chain business, examination-oriented after-school tutoring, etc.
近年来，伴随着国内就业难度大和教育体制改革滞后的问题，高等教育出现招生难，以及出国留学低龄化的趋势，很多投资者转向了国际高中和留学产业，也有很多资金关注“大消费”概念而重新追捧少儿培训、成人再教育、职业培训等培训业务的子领域；而网络教育则成为了目前业内最为热门的话题，并吸引了众多原本不属于传统教育机构的企业加入了市场竞争。我们认为，虽然投资热点在过去十年有所轮换，整个大教育产业的发展仍然方兴未艾；同时，除了直接的私募股权投资和IPO之外，多种形式的并购交易也在市场上趋于活跃。
In recent years, with the increasing difficulty in finding employment and the lag in reform of the educational system in China, recruitment of students to higher education has become more difficult, and that, coupled with the trend of ever younger students going abroad to study, many investors turn to the international high school and overseas study industry. A lot of funds also focus on the “big consumption” concept, pursuing such sub-sectors of the training business as young learners training, continuing adult education, vocational training, etc. In addition, online education has become the new hot topic in this industry, attracting numerous enterprises that were never involved in traditional education to join in the market competition.
由于法律的限制，直至目前，国内民办教育在法律上一直属于公益性事业，并限于民办非企业单位的形式，举办者能够获得的投资回报以及民办学校的税收待遇在法律上仍存在诸多不确定性，因此民办教育在获得私募投资后主要的上市和退出方向一直以美国等境外资本市场为主。
It is our opinion that although there has been a rotation in the favored targets of investment in the past 10 years, the development of the entire education industry in China remains in its infancy. Furthermore, in addition to direct private equity (PE) investment and initial public offerings (IPOs), various manners of merger and acquisition (M&A) transactions are picking up steam in the market.
而境内A股市场，虽然有个别A股公司投资举办或收购民办学校的先例，仍无法成为这一行业融资上市的主流市场，甚至先后在IPO和借壳、并购路径上出现过一些由于法律障碍而失败的先例。
在投融资项目的法律结构上，由于《中外合作办学条例》的限制，以及该领域外资政策的监管实际，以往取得境外资本投资的民办教育项目大多采用了协议控制的VIE结构。我们相信这一状态在未来若干年内仍将持续，但不排除在某些受到外资政策限制较小的领域或地区，出现一些外资间接持股的案例。实际上，在一些教育领域也已经存在外商投资企业举办的教育项目，只不过目前在规模和资本市场上尚不具备普遍的代表性。
Due to legal restrictions under PRC law, private education in China has always been a non-profit industry carrying a form of private non-enterprise entities, and numerous legal uncertainties have remained over the investment returns that founders are able to earn and the tax treatment of private schools. For this reason, the American and other offshore capital markets have been the principal exit routes for private investments investing into Chinese private education business. As for the domestic A-share market, although there are scattered precedents of A-share companies investing in or acquiring private schools, it still remains impossible for A-share market to become the main route for private schools’ financing and listing, and there are even examples of failures on the IPO, backdoor listing and M&A tracks due to legal obstacles.
In terms of the legal structure of investment and financing, private education projects that secured foreign capital investment in the past have largely taken the form of VIE (variable interest entity) structure due to the restrictions imposed by the Regulations for the Establishment of Sino-Foreign Co-operative Joint Venture Schools and the regulatory realities of the policies on foreign investment in this sector. It is our belief that this situation will sustain for the time being, but we do not rule out the possibility of cases of the indirect holding of shares by foreign investors to be found in certain sub-sectors or regions where policy restrictions on foreign investment are somewhat more relaxed. In certain educational sectors we have seen some educational projects established by foreign-invested enterprises, however these are not common in terms of their size and in the capital markets.
在此情况下，已经或正在准备进入资本市场的采用VIE结构的民办教育项目，则会在VIE的股东结构及其股东替换机制、对大股东的制约、并表范围内主体的董事会的结构和产生方式、VIE协议下购股权的行使、VIE的股权质押、VIE的授权管理机制、公章管理、下属机构管理层的任命、协议控制下的转移支付机制、清算剩余资产的处置、税收筹划等诸多细节上进一步完善其公司治理结构和风险防范机制。
In such a situation, private educational projects with VIE structures that have entered, or are preparing to enter, the capital markets have been further improving their corporate governance structures and risk mitigation mechanisms in such areas as the shareholder structure in the VIE and its shareholder kick-out mechanism, the restrictions on major shareholders, the structure and means of electing the boards of directors of the entities falling within the scope of consolidation, exercise of the call option under the VIE agreements, pledging of VIE equity, authorization of the VIE’s management mechanism, management of the official seals, appointment of the management team of subsidiaries, the transfer payment mechanism under the VIE agreements, disposal of residual assets, tax planning, etc.
尽管如此，一部分民办教育机构仍然期盼着通过国内资本市场实现自己的发展。随着《国家中长期教育改革和发展规划纲要》在2010年的颁布，国内民办教育机构的营利性和非营利性分类管理改革一直处于缓慢而逐步的推进过程中。目前，分类管理的法律修改趋势已经明朗，并且在上海等个别地区已经率先取得突破。
可以预见，随着相关基本法律的修改完成，营利性的民办教育机构在不远的将来将渐成气候。民办教育领域将分化出营利性和公益性的两类教育机构，政府监管机制和税收、土地等方面的政策待遇也将逐步得到理顺。在此过程中，将会有一批民办教育机构通过重组转向企业化经营。此后，真正以教育培训为主业的上市公司出现在A股市场将可以期待。
Notwithstanding this, certain private educational institutions still wish to realize their own growth through domestic capital markets. With the issuance of the Outline of the State’s Medium and Long-Term Educational Reform and Development Plan in 2010, reform of the administration of private educational institutions in China by separating them into for-profit and non-profit has been triggered while remained as a slow process. The trend in revising the laws on separate administration regime is pretty clear and breakthroughs in legislation have first been achieved in certain areas such as Shanghai.
It is foreseeable that, following completion of the revision of the relevant basic laws, for-profit private educational institutions will in the not too distant future progressively become the trend. The private education sector will be categorized as for-profit and non-profit educational institutions, and the regulatory requirements and policy treatment for taxation, land, etc. will gradually be worked out. During this course, a certain number of private educational institutions will turn to adopt corporate-like operational model following restructurings. As a result, it is anticipated that companies with education and training as their core business will likely be listed in A-share market in the future.
由于VIE结构在公司治理结构上的固有风险以及税负较重，以此结构进行海外融资的教育公司，在某些市场或监管条件下有可能采取拆除VIE结构，转为外资间接持股的传统红筹架构；甚至拆除整个红筹结构并回归A股市场。在此过程中，难点在于受到外资政策限制的外资股东是否需要以及如果从股东结构中退出，境内外结构的转化可能涉及的资金成本、外汇管制和境内外两地甚至多地的税务成本，但随着A股上市监管转变为以信息披露为主，以及外汇管制措施的不断放宽，拆除VIE结构过程中的成本将会趋于降低，操作的灵活空间也在增大。天元已经于2014年成功协助从事智能交通业务的千方集团从纳斯达克市场私有化退市，并在拆除VIE红筹架构后成功在A股市场借壳联信永谊重新上市，成为VIE红筹公司通过借壳方式回A的最早案例，未来类似的交易模式出现在教育领域也完全可能。
Due to the intrinsic risks associated with the corporate governance structure of VIEs and the relatively heavy tax burden, educational companies that have sought offshore financing via VIE structure may, in certain markets or under certain regulatory conditions, eliminate the VIE structure and opt for transformation into the traditional equity-holding red-chip structure; or even eliminate the red-chip structure entirely and return to the A-share market. The difficulties sitting with this process will be whether the foreign shareholders subject to foreign investment policy restrictions will be required to divest and, if they withdraw from the shareholder structure, the associated costs, the foreign exchange controls, and the applicable onshore and offshore tax liabilities that could be involved in the transformation of the domestic and foreign structures.
However, with regulation of the A-share market moving to focusing on information disclosure and the progressive relaxation of foreign exchange control measures, the costs associated with eliminating a VIE structure will go down and operational flexibility will increase. In 2014, Tian Yuan has successfully assisted China Transinfo, which engages in the intelligent transport business, in privatising and withdrawing from NASDAQ, and, after eliminating its VIE red-chip structure, successfully relisted on the A-share market by way of the shell of Lianxin Yongyi, which is marked as the first case of a VIE red-chip company returning to the A-share market through a backdoor listing. It is entirely possible that a similar transaction model will be adopted by companies in the education sector in future.