企業經營者薪酬運作之改善建議 － 以美國經驗為借鏡

企業經營者之薪資政策，關乎企業徵、留才的難易，同時具有激勵目前在職者戮力為公司服務之功能。若運作得當，獎酬計畫與公司績效呈正向循環，公司契約網內的所有參與者皆能獲益；反之，若薪酬數額與公司表現嚴重脫鉤，鉅額薪資將對已陷入衰退的公司財務狀況形成更大負擔，無疑雪上加霜。關此議題，美國早在上個世紀的30年代便已因經營者薪酬數額的天文數字而引起股東、民眾及政府的關注，一場與「經營者薪資」的搏鬥於斯時起即無休止跡象。自1990年代薪酬與績效連結的觀點為學者提出並逐漸被投資人接受後，股權薪酬因其可與績效連結的特性而大爆發，卻因其風險及雙曲貼現之特質而間接造成薪酬總額過度膨脹，以及經營者採取過度風險的行為。其亦可能是導致2008年金融海嘯的元兇之一。此後，美國政府對經營者薪酬的監理介入達到一空前高峰，例如引入股東薪酬投票制度(Say on Pay)。總體而言，改革目標無非朝向「資訊提供更加透明、豐富化」、「賦予股東介入薪酬監控的力道強化」之方向走去。我國方面，公司法196條原則預設董事薪酬由股東會議定或章程訂定，看似對股東甚為保護，惟基於大型公司股東與經營者資訊不對稱、集體行動問題，致上述規範形同虛設，股東多僅能被動接受經營者自行擬議之薪酬額。主管機關或慮及此遂於2010年引入薪酬委員會，欲匡正薪酬決策中可能存在的自肥現象。然而，薪酬委員會實務運作上面臨企業多僅虛應故事而亟待改善；又，關於薪酬種類我國實務向來不允許董事領取股權性質薪酬，「一律禁止」的政策本文認為規範過度且戕害薪酬規畫的彈性。再論及揭露制度，本文參考英國法制主張揭露政策應區分為「過往」與「展望式」揭露。前者係指公司對「已確定」之薪酬必須完整將各項薪酬細目公布予股東知悉；後者則指公司必須對往後的薪酬政策事先做大要式訂定，並表明薪酬波動的可能最大幅度，以避免股東僅能於公司年報上始能獲知經營者薪酬的變動程度，遭受突襲。最後就Say on Pay制度目前是否適合引入我國，本文基本持否定態度，因該制度於我國公司法196條尚未修訂前，可能有與既有法制相衝突之疑慮。此外，制度最主要的功能－引發輿論制裁之「義憤成本」，本文認為我國已有實訂法之股東提案權可資利用，其亦可發揮相同效果且成本較低。是以，本文提出以「優化之股東提案權」制度做為股東監控經營者薪酬的一大利器。所謂優化，包括排除向來對股東提案權學者已有批評之修正，例如經營者違法不列入議案之罰則過輕、無救濟機制等等；另外，該制度若欲發揮功能尚必須配合一定的配套措施，諸如加重揭露義務、與司法審判之連動、與薪酬契約本身的配合。本文透過研究美、英等國Say on Pay制度，擷取其中可供借鑑之長處提出此想法，希望可透過此機制令分散而勢單力薄之股東確實對經營者薪酬有一定的發聲空間，抑止超額薪酬的出現。

關鍵字

經營者薪酬；薪資報酬委員會；股權激勵薪；薪酬揭露；受任人義務；股東薪酬投票制度；股東提案權

並列摘要

Directors and executives' compensation can have a significant impact on enterprises' selection and retention of talented person, and it also plays a role in incentivizing in-service influential officers to make him work hard for the corporation's prosperity. If people design compensation scheme appropriately, it will produce a virtuous circle of corporate performance, therefore benefits all participants of the company; on the contrary, if the amount of directors and executives' compensation decouples from his performance, it will become a heavy burden for the declining company. Regarding the excessive levels of compensation, shareholders, the public and regulatory agency have already shown a deeply concern about it in the United States in the 1930s, and the fight with it do not cease since then. Since the concept of "pay for performance" was promoted by scholars and gradually accepted by investors and shareholder services companies, etc., equity rewards have sprung up like mushrooms because of its simplicity to link with performance. However, the risk-averse nature of executives, hyperbolic discounting phenomenon make the total amount of equity awards expand to the figure that people can hardly tolerate. In addition, in order to obtain the equity rewards, executives sometimes unscrupulously make risky decisions at the expense of company's welfare. Moreover, it may be one of the decisive element that results in the financial crisis of 2007-2008. To deal with all the troubles that was brought by excessive compensation, regulatory interventions by the government of the United States reached its peak after the crisis. For instance, the legislation of say on pay. In general, executive pay remains a highly concerned topic recently , and the reform strategies are aiming for "creating a more abundant and apparent compensation disclosure environment", "endowing more power for shareholders to express their opinions toward the suitability of the compensation package". Speaking of Taiwan's executive compensation practices, the default rule for determining executive's compensation package is through shareholder meeting resolution or the pre-fixed amount in corporate charter, which is requested by article 196 of Taiwan's company act. At first glance, it seems that shareholders have the ultimate power toward compensation decision, however, the truth is that due to the information asymmetry problem, collective problem, executive compensation in large listed company is fixed by the people who actually own real control power over that company. Thus, shareholders' power is just "law in books", rather than "law in action". Taiwan's authority-in-charge may have noticed the divergence between the law and the reality, in 2010 the compensation committee was introduced into Taiwan, trying to prevent executives from gaining improper excessive pay. Unfortunately, in practice, a fraction of listed companies which are forced to adopt this new regime are just going through the motions and do not take it seriously. As a result, the institution needs to be reformed to function as intended. With regard to equity compensation, the policy always hold the view that company can't use it to reward "directors". The strict prohibition of directors getting equity reward, I argue, is over-regulated and may impair the flexibility of compensation plan. As to compensation disclose policy, by making reference to English law, I contend that the disclosure shall be divided into two parts － "backward looking" part and "forward looking" part. The former is the traditional one, which includes confirmed compensation amount that is destined to give to the executives as an exchange for its dedication to the company in the past; the latter means that corporation shall set a compensation policy for the near future, for instance, the maximum change of the compensation amount. By asking for this kind of forward looking disclosure, shareholders at least can foresee the next several years' largest expense on compensation. At last, this essay delves into the feasibility of say on pay vote in Taiwan. Basically, I would like to point out that this institution may not fit the existing business environment in Taiwan. First, before the amendment of article 196 of Taiwan's company act, introducing say on pay rule hastily may conflict with it, due to the "binding vote" nature of article 196. Second, the valuable effect that say on pay is expected to bring － public criticism of detected excessive pay, can be substituted by shareholder proposal. Therefore, I present the idea that "optimized shareholder proposal" can be an effective device to monitor inappropriate pay. What I call " optimized" is that the existing shareholder proposal rule in Taiwan needs to be fixed so as to ensure its availability. Furthermore, to guarantee the utmost utility of it, there must be some cooperative measures. For example, the increased obligation of compensation disclosure, the additional weight of violation of fiduciary duties in judgment, and the influence on the content of compensation contract. By using this tool, I hope that vastly powerless shareholders may hold the real power to express their voice about compensation, and suppress the emergence of excessive pay.