【作者】 戴少刚；

【导师】 韩世远；

【作者基本信息】 清华大学 ， 民商法学， 2007， 硕士

【摘要】 高管报酬是公司向管理者支付的、作为其服务对价的现金、非现金等形式的酬劳。在现代公司所有权与控制权分离的背景下,管理层是公司的代理人,但与股东利益天生存在冲突。高管报酬被认为是降低代理成本、协调高管和股东利益的工具,但在实践中本身却演变成为典型的代理成本问题,成为公司治理的最大难题,因此也是近年来西方国家(尤其是美国)法学研究的最热门问题之一。目前我国法学界对高管报酬还未予以重视,相关研究基本处于起步阶段。本文首次系统、全面地介绍了美国公众公司高管报酬的法律规制,并与我国高管报酬的法律规制进行比较,进而结合我国实际情况,分析美国高管报酬法律规制值得借鉴的经验,提出作者的改进意见。美国公众公司高管报酬的法律规制主要有:(1)注意义务、忠实义务和“公司浪费原则”。董事和经理报酬应由董事会决定,但股东可以董事会违反注意义务、忠实义务或构成“公司浪费原则”为由提起股东派生诉讼。(2)税法上的限制。CEO和其他四名报酬最高的高管,年报酬超过一百万美元以上的部分,均不得作为“普通和必要的商业费用”而进行税收扣减。(3)强制信息披露。证券交易委员会于1992年颁布了系统的高管报酬披露规则,并于2006年8月对1992年规则作了彻底修改,对高管报酬的强制披露作了全面规定。信息披露是美国规制高管报酬的最重要手段。我国的法律规制与美国有较大不同。《公司法》规定董事报酬由股东大会确定,经理报酬由董事会确定。但国资委等部门的规章对国有控股上市公司高管报酬的规制,却体现了鲜明强烈的政府干预色彩。而关于高管报酬信息披露的规定,则十分简陋。本文对我国关于高管报酬的规定进行了反思,提出在高管报酬的确定上,应更充分发挥市场作用,保持适度政府干预。关于税收规制,本文认为尚无必要。关于信息披露,本文对我国立法提出了作者的改进意见。更多还原

【Abstract】 Executive compensation refers to the remuneration paid by the corporation, either in the form of cash or non-cash, to the management, including management directors and executives, as the consideration for their service. Under the circumstance of separation of ownership and control of the corporation, which is the common case for public companies (listed companies) in modern business world, the management acts as the agent of the owners of the corporation, the shareholders. The management, with the control of the corporation, may maximize its own interest at the cost of shareholders’wealth. Executive compensation has been considered as a tool to lower the agency cost and align the interests of the management and shareholders. However, in practice, executive compensation itself becomes a classic agency problem and the most intractable conundrum in corporate governance and, consequently, one of the hottest topics for legal scholars in western countries, especially the United States.Currently Chinese legal scholars do not attach much importance to executive compensation. Therefore few studies have been conducted concerning the legal regulation on executive compensation. This article, for the first time in China, thoroughly reviews American legal regulation on executive compensation in public companies in details, and make abundant comparisons between American and Chinese legal regimes regarding executive compensation. Based on the aforesaid efforts, the author analyzes lessons for China from American experience and offers his suggestions.The American legal regulation on executive compensation in public companies mainly includes: (1) Duty of care, duty of loyalty and“corporate waste”. Executive compensation has long been deemed as the ordinary business of a corporation, and thus shall be determined by the board of directors. While generally shareholders have no right to intervene, they may, in the case that they are dissatisfied with the executive compensation, lodge a shareholder derivative suit in courts against the board of directors, claiming that the board breaches the duty of care or duty of loyalty, or that the compensation constitutes“corporate waste”. (2) Restriction on tax deductibility. Annual compensation paid to the CEO and the four other highest paid officers of public companies which exceeds $ 1 million may not be deducted as an ordinary and necessary business expense. (3) Mandatory information disclosure. The Securities and Exchange Commission of the United States (“SEC”) promulgated executive compensation disclosure rules in 1992 and revised the rules sweepingly in 2006, requiring full executive compensation information to be disclosed to shareholders and investors. Mandatory disclosure system is the most important regime regulating executive compensation in the US.Chinese legal regimes concerning executive compensation varies sharply from the US model. The Company Law of China provides that directors’compensation shall be determined by the shareholders and the officers’compensation be determined by the board of directors. But regulations issued by the State-owned Assets Supervision and Administration Commission (“SASAC”) and other relevant government agencies regulating the executive compensation in state-controlled listed companies, which accounting for the majority of listed companies in China, have conferred too much power on these government agencies as to the determination of executive compensation and constrained the autonomy of corporations extraordinarily. And, compared with the US regime, the rules regulating mandatory disclosure of executive compensation are incomplete and ill-considered, and shall be improved sweepingly and systematically.Based on thoughtful review and comparison, the author argues that the government shall only keep moderate control and more reliance shall be placed on the market force in the determination of executive compensation in the future. The author finds no reason to adopt tax as a tool to control executive compensation. Furthermore, the author brings forward suggestions to improve the mandatory disclosure system concerning executive compensation.更多还原