上市公司破产重整自行管理中职权配置的实践困境与优化建议

Practical Dilemmas and Optimization Suggestions on the Allocation of Authority in Self-Management of Bankruptcy Reorganization of Listed Companies

《破产法》第73条引入了破产重整期间的债务人自行管理制度,但关于职权配置的规定过于简单模糊。在注册制改革背景下,上市公司破产重整自行管理的适用频率显著上升,而细究规范与裁判,对债务人、管理人的职权配置存在不容忽视的分歧,如此不仅难以发挥自行管理的制度优势、难以保障上市公司重整质量,还将引发诸多理论与现实问题。宜将上市公司重整中的各项管理职权加以类型化区分,以最大化企业运营价值、剩余索取权人不明、降低规制成本作为考量要素,在债务人、管理人之间科学配置职权,以此构建职权配置的基础模式,并允许根据个案情况协商调整。鉴于债务人自行管理中可能存在的冲突与风险,还应完善与职权配置相契合的配套制度体系。

Article 73 of the Enterprise Bankruptcy Law introduces a system of self-management by the debtor during bankruptcy reorganization,but the provisions on the allocation of authority are too simple and vague.In the context of the registration-based IPO system reform,the frequency of applying self-management of bankruptcy reorganization by listed companies has increased significantly.However,after a meticulous study of the norms and judicial decisions,there are differences in the allocation of authority between the debtor and the administrator that cannot be ignored.This not only makes it difficult to give full play to the institutional advantages of self-management and to guarantee the quality of the reorganization of listed companies but also raises many theoretical and practical problems.Taking maximizing the company’s operating value,unknown residual claimants,and reducing regulatory costs into account,this paper proposes to classify management authority in the reorganization of listed companies and scientifically allocate authority between the debtor and the administrator.This constructs the basic mode of the allocation of authority and the adjustment is allowed to be negotiated according to individual circumstances.Given the conflicts and risks that may exist in the debtor’s self-management,it is necessary to improve the supporting system that is compatible with the allocation of authority.