부산대학교 도서관

尽管《企业破产法》第73条规定了债务人自行管理程序，但实务中很 少采用，该制度激励公司控制权人及时申请重整、提高重整效率的功能 难以发挥。在不改变“管理人管理为原则、债务人自行管理为例外”基本模 式的前提下，可以借鉴德国破产法“保护伞程序”，在正式重整程序之外增 加采用债务人自行管理的前置程序。未来破产法修订可以结合我国当前 预重整实践和德国“保护伞程序”的经验，在正式重整前设置采用债务人自 行管理的预重整程序，通过降低程序启动门槛，规范司法有限介入，正 式重整中延续债务人自行管理，进一步激活债务人自行管理和重整程序 的价值拯救功能。
Article 73 of the Enterprise Bankruptcy Law provides for the debtor-in-possession management. However, since the application for debtor-in-possession management requires careful examination and approval by the court, it is rarely used in practice. The debtor-in-possession management has the function of encouraging the debtor to file an application for reorganization in time and improving the efficiency of reorganization, but it can not be realized at present. In order to solve the problem that debtor-in-possession management is seldom used in practice, German legislators set up “protective shield” in Insolvency Code, which is a kind of preparation procedure for restructuring and the debtor can manage its assets and business operation under the supervision of its provisional monitor. In the practice of prepackaged bankruptcy in China, debtors also bear important management responsibilities, but no formal legal rules have been established. The Enterprise Bankruptcy Law could combine the current Chinese practice of prepackaged bankruptcy with the experience of the German “protective shield”. First, the threshold for initiating debtor-in-possession management in prepackaged bankruptcy should be lowered, second, the court should provide the debtor with limited legal protection, and third, the debtor should continue to manage its assets and business operations after entering formal reorganization proceedings. Keywords