破产重整中债务人自行管理制度的法律完善
发布时间：2019-06-29 16:22
【摘要】：在国家经济结构战略性调整的大背景下,经济发展以及政策改革对去产能、去杠杆、去库存的要求逐步上升。妥善处置“僵尸企业”、风险企业成为稳定市场的一大要务,破产程序的重要性日益加强。现行《企业破产法》第七十三条、七十四条规定了破产重整债务人自行管理制度,其核心是重整期间债务人继续“占有”自己的企业和事务。债务人自行管理制度是以债务人为主导的破产重整制度,具有维持债务人经营管理的连续性,拯救困境企业,为债务人提供改正错误经营的机会,促进重整程序高效运行等优势。但是,2007年《企业破产法》仅对此制度进行了高度概括的规定,对于自行管理制度的细化实施办法与债务人保障机制都没有做出具体规定。这使得债务人自行管理制度在适用上存在着一定的缺陷与不足:例如此制度易造成各方主体利益不平衡;该制度中债务人职权模糊;该制度对债务人破产撤销权未明确规定等;所以,亟待对此制度进行研究与梳理。本文首先对债务人自行管理制度进行理论研究,对债务人自行管理制度的内涵、基本程序、价值以及优势劣势进行厘清。其次对债务人自行管理制度存在的问题进行梳理,提出了此制度存在着监督体系不完善、信息披露制度不健全、债务人自行管理薪酬不明确等问题;并在结合此制度的理论与存在问题的基础上,考察美国、德国以及法国等国的相关立法和司法经验。最后针对此制度存在的问题,借鉴国外先进制度的经验,从构建多方监督机制、完善信息披露制度、明确债务人自行管理薪酬等方面提出完善建议。本文行文过程中,多方面介绍了债务人自行管理制度,从制度建设层面对债务人自行管理制度提出完善信息披露的建议;创新性的从利益平衡的角度,对此制度的可行性及存在价值深入分析。希望可以在理论层面对此制度在我国的适用提出建议,对重整制度在我国的构建进行学术上的探讨。
[Abstract]:Under the background of strategic adjustment of national economic structure, the requirements of economic development and policy reform for capacity removal, deleveraging and inventory removal are gradually rising. Properly handling zombie enterprises, venture enterprises have become a major priority to stabilize the market, and the importance of bankruptcy proceedings is becoming more and more important. Article 73 and Article 74 of the current Enterprise bankruptcy Law stipulate the self-management system of the bankruptcy reorganization debtor, the core of which is that the debtor continues to "occupy" his own enterprises and affairs during the reorganization period. The debtor's self-management system is a debtor-led bankruptcy reorganization system, which has the advantages of maintaining the continuity of the debtor's operation and management, saving the troubled enterprises, providing the debtor with the opportunity to correct the wrong management, and promoting the efficient operation of the reorganization procedure. However, in 2007, the Enterprise bankruptcy Law only made a highly general provision on this system, and there were no specific provisions on the detailed implementation of the self-management system and the debtor's protection mechanism. This makes the debtor's self-management system have some defects and shortcomings in its application: such a system is easy to cause the interests of all parties to be unbalanced; the debtor's authority and power in the system are vague; the system has not clearly stipulated the debtor's right of bankruptcy cancellation, and so on; therefore, it is urgent to study and sort out this system. First of all, this paper makes a theoretical study on the debtor's self-management system, and clarifies the connotation, basic procedures, value, advantages and disadvantages of the debtor's self-management system. Secondly, it combs the problems existing in the debtor's self-management system, and puts forward that there are some problems in this system, such as imperfect supervision system, imperfect information disclosure system, unclear debtor's self-management salary, etc., and on the basis of combining the theory and existing problems of this system, this paper investigates the relevant legislation and judicial experience of the United States, Germany, France and other countries. Finally, in view of the problems existing in this system, drawing lessons from the experience of foreign advanced systems, this paper puts forward some suggestions from the aspects of constructing multi-party supervision mechanism, perfecting the information disclosure system, making it clear that the debtor manages his own salary and so on. In the process of writing, this paper introduces the debtor's self-management system from many aspects, puts forward some suggestions for perfecting the information disclosure of the debtor's self-management system from the level of system construction, and innovatively analyzes the feasibility and existing value of this system from the perspective of interest balance. It is hoped that some suggestions can be put forward on the application of this system in our country at the theoretical level, and the construction of the reorganization system in our country can be discussed academically.
【学位授予单位】：山西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.92
本文编号：2507951
[Abstract]:Under the background of strategic adjustment of national economic structure, the requirements of economic development and policy reform for capacity removal, deleveraging and inventory removal are gradually rising. Properly handling zombie enterprises, venture enterprises have become a major priority to stabilize the market, and the importance of bankruptcy proceedings is becoming more and more important. Article 73 and Article 74 of the current Enterprise bankruptcy Law stipulate the self-management system of the bankruptcy reorganization debtor, the core of which is that the debtor continues to "occupy" his own enterprises and affairs during the reorganization period. The debtor's self-management system is a debtor-led bankruptcy reorganization system, which has the advantages of maintaining the continuity of the debtor's operation and management, saving the troubled enterprises, providing the debtor with the opportunity to correct the wrong management, and promoting the efficient operation of the reorganization procedure. However, in 2007, the Enterprise bankruptcy Law only made a highly general provision on this system, and there were no specific provisions on the detailed implementation of the self-management system and the debtor's protection mechanism. This makes the debtor's self-management system have some defects and shortcomings in its application: such a system is easy to cause the interests of all parties to be unbalanced; the debtor's authority and power in the system are vague; the system has not clearly stipulated the debtor's right of bankruptcy cancellation, and so on; therefore, it is urgent to study and sort out this system. First of all, this paper makes a theoretical study on the debtor's self-management system, and clarifies the connotation, basic procedures, value, advantages and disadvantages of the debtor's self-management system. Secondly, it combs the problems existing in the debtor's self-management system, and puts forward that there are some problems in this system, such as imperfect supervision system, imperfect information disclosure system, unclear debtor's self-management salary, etc., and on the basis of combining the theory and existing problems of this system, this paper investigates the relevant legislation and judicial experience of the United States, Germany, France and other countries. Finally, in view of the problems existing in this system, drawing lessons from the experience of foreign advanced systems, this paper puts forward some suggestions from the aspects of constructing multi-party supervision mechanism, perfecting the information disclosure system, making it clear that the debtor manages his own salary and so on. In the process of writing, this paper introduces the debtor's self-management system from many aspects, puts forward some suggestions for perfecting the information disclosure of the debtor's self-management system from the level of system construction, and innovatively analyzes the feasibility and existing value of this system from the perspective of interest balance. It is hoped that some suggestions can be put forward on the application of this system in our country at the theoretical level, and the construction of the reorganization system in our country can be discussed academically.
【学位授予单位】：山西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.92
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