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DIP制度在美国经历了实践产生、立法否认、立法确认的反复而曲折的过程,时至今日,该制度已经成为美国商事重整制度的基石。中国在借鉴DIP制度的基础上确立了债务人自行管理制度,但该制度并未受到足够重视。实际上,债务人掌握着不受约束的重整程序启动权,其在重整期间维持营业事务、引进重组方、推动针对重整计划的谈判及促进重整获得成功方面也具有积极作用,为了激发重整制度的活力,应当适度强化债务人对重整程序的控制权。与此同时,在中国股东会中心主义的公司文化下,债务人自行管理实际系股东的管理,此种模式的弊端集中体现在股东通过重整计划中各种权益的调整而实现的对债权人的掠夺,相关的实证研究对此进行了揭示。基于实用主义的角度论证债务人对于重整的积极作用,以及其所可能产生的风险并加以防范,是本文的基本思路。
In the United States, the DIP system has undergone repeated and tortuous processes of practice, denial of legislation and recognition of legislation. To this day, the system has become the cornerstone of the commercial restructuring in the United States. On the basis of referring to the DIP system, China established the debtor’s own management system, but the system has not received sufficient attention. In fact, the debtor also has the right to initiate the unrestricted reorganization proceedings. It also has a positive role in maintaining business operations during the reorganization, introducing reorganization parties, facilitating negotiations on the reorganization plan and promoting the success of the reorganization. In order to stimulate The vitality of the restructuring system should appropriately strengthen the debtor’s control over the reorganization proceedings. In the meantime, under the corporate culture of China’s shareholder-centricism, the debtor manages the actual management of its shareholders. The drawbacks of this model are mainly embodied in the looting of creditors achieved by the shareholders through the adjustment of various rights and interests in the reorganization plan , The relevant empirical research revealed this. Based on pragmatism, it is the basic idea of this article to demonstrate the debtor’s positive role in reorganization and its possible risks.