我国管理报酬存在过高、与业绩不相关、决定程序上存在利益冲突等问题，而管理报酬关乎公司、股东的利益。我国现行法规范过于概括，《公司法》提供了决议瑕疵、关联交易、受信义务的基本规制框架，而证监会和其他部门则在决定依据和原则、参考标准上有进一步规定。实务对该问题的处理过于简单片面，多数法院重点关注程序性问题，但即使决议无效，由于董事或高管提供了劳务，公司仍有义务给付报酬，否则构成不当得利，因此管理报酬不同于一般的关联交易，基于决议效力作出判决的处理并不能彻底解决纠纷；部分法院还关注报酬实质合理性，并与忠实义务相联系，但报酬合理性的考虑因素较为单一和模糊。因此，当就管理报酬发生诉讼时，法院对于如何判断报酬合理性、相关董事或高管是否违反受信义务等问题，尚未能建立起清晰和具有可操作性的司法审查程序。美国法院对利益冲突交易有相对完善的司法标准和步骤，具体为：首先，原告是否构成同意或默许；第二，报酬是否经过独立知情的非利害董事的多数同意，由原告举证。若满足，则多数法院将适用商业判断规则，审查限制在赠与或浪费问题上；少数法院则推定交易公平，举证责任转移。对于非利害董事可适用商业判断规则，而利害董事或高管则不能适用，若报酬不公，则其需承担违信责任；第三，报酬是否经过知情的无利害股东多数批准；最后，报酬的实质公平性，由被告举证。若报酬公平，原告不能主张赔偿；若报酬不合理，则利害董事或高管需承担违信责任；若非利害董事未受商业判断规则保护，违反其注意义务，则原告也可主张相应的赔偿责任。美国的司法审查程序对我国有参考价值，能为实务上提供可能路径，但仍存在着借鉴选择、应用及纳入我国现行法的解释可能性的问题。首先，在程序公平标准上，举证责任方面，在美国由原告承担未达到程序公平标准的举证责任，但由原告举证使其负担过大，我国应由被告举证；满足程序公平标准的效果方面，美国法院的少数做法更值得我国借鉴。具体理由为法院不应回避审查、报酬事项不应比其他事项审查宽松、审查局限于浪费并不合理、程序公平不能保证实质公平；并且，程序公平标准的内容、效果不应区分封闭、公开公司而不同；以及我国尚不具备在程序公平标准中引入监事会判断的条件。其次，报酬合理性的考虑因素包括该雇员的能力和资格；工作的性质、程度和范围等。最后，我国在司法中借鉴美国的司法审查程序，与我国现行法并不冲突，存在着纳入我国现行法的解释可能性。

Executive compensation has problems of being too high, not related to performance, and conflict of interest in the decision process, while it concerns the interests of the company, shareholders. Current laws in China are too general, with the Company Law providing the basic regulatory framework of defective resolutions, related-party transactions, and fiduciary duties, while documents from the SEC and other authorities provide further regulations on the basis, reference standards and principles. The current practice is much uncomplicated and one-sided on the issue, and most courts focus on procedural issues such as resolution defects, but even if the resolution is revoked, or found to be not established or invalid, the company is also liable to defray compensation because the director or executive provided labor services, otherwise it constitutes unjust enrichment, so executive compensation is different from general related-party transactions, and the treatment of making a decision based on the validity of the resolution does not thoroughly tackle the issue. Some courts also pay attention to the substantive reasonableness of the compensation and link it to the duty of loyalty, but the factors considered in judging the substantive reasonableness of the compensation are relatively single and vague. As a result, when litigation over executive compensation occurs, the courts have not yet been able to establish clear and operable judicial review procedures for determining the reasonableness of compensation and whether the relevant trustees have breached their fiduciary duties.U.S. courts have relatively well-established judicial standards and steps for conflict of interest transactions, specifically: first, whether the plaintiff agrees or acquiesces and cannot object to the transaction by estoppel; and second, whether the compensation decision was made with the consent of a majority of independent, informed, disinterested directors, with the burden of proof on the plaintiff. If satisfied, most courts will apply the business judgment rule and limit the judicial review to the gift or waste issue; a few courts will presume the transaction to be at arm's length and the burden of proof shifts. For disinterested directors, the business judgment rule is likely to be utilized, while disinterested directors or officers cannot apply the business judgment rule. If the complaint is able to certify that the compensation was unfair, he or she is liable for breach of the duty of loyalty; third, whether the compensation decision was approved by an informed majority approval of the disinterested shareholders; finally, the defendant shoulders the responsibility of proof of the substantive fairness of the compensation. If the compensation is fair, the plaintiff cannot claim any liability; if the compensation is unreasonable, the interested director or officer is liable for breach of duty of loyalty; if the non-interested director is not defended by the business judgment rule, breaching the duty of care, the plaintiff can also claim the corresponding liability. The U.S. judicial review procedure has reference value to us, and can provide a possible path to solve the problem in practice. However, there are still certain points to be discussed, such as the choice of reference, application and the possibility of interpretation into our current law. First, in the procedural fairness standard, the burden of proof in the U.S is bore by the plaintiff. But it is too much burden, in China the defendant should tolerate the load of proof; in terms of the effect that the procedural fairness standard is satisfied, the minor practice is more worthy of our reference. Specific reasons include the court should not escape itself from the review, the review of executive compensation should not be more lenient than other matters, review limited to waste is unreasonable, and procedural fairness can not guarantee substantive fairness. In addition, the content and effect of procedural fairness standard should not be distinguished between close and public corporates. And China is not yet in a position to introduce the judgment of the supervisory board in the procedural fairness standard. Secondly, the factors to be considered for the reasonableness of compensation include the ability and qualifications of the employee; the nature, extent and scope of the work and so on. Finally, our judicial review borrowing the U.S. judicial review process does not conflict with our current law, and the possibility of interpretation exists for inclusion in our current law.