高管薪酬是现代上市公司治理的重要手段，但实践中对它的不当运用导致以 薪酬畸高为代表的问题层出不穷，既严重损害公司及股东利益，又危害了金融市 场的良性运作，进而诱发社会不公、激化社会矛盾，亟待从法律层面寻求有效的 化解之道。因相较实施和监管环节，高管薪酬决策具有牵一发而动全身的关键作 用，其公正性更容易受到侵蚀，更容易埋下深层的隐患，故在立法层面可将高管 薪酬的决策端作为突破口，对决策机制作出有效调整。我国上市公司高管薪酬决策机制的法律规制，除存在条文本身内容粗糙、不 成体系的缺陷之外，也未能充分考虑现有法律框架下决策机制面临的运作困境。 上市公司高管薪酬决策适用《中华人民共和国公司法》对有限责任公司的规定， 即股东大会决定董事薪酬、董事会决定高管薪酬。实践中董事会下设机构薪酬委 员会职权范围极小、独立董事作用甚微，股东大会形式化现象严峻，整体上股权 呈现高度集中但内部人控制情况有增无减;程序性规则不完善，公司决策程序不 规范情况常见。受上述多重不利因素影响，高管薪酬决策无疑会遭到严重干预。在向外借鉴时，为避免重蹈法律移植的困境，应以立足本土语境和现状为前 提对域外经验进行斟酌、作出取舍。在决策主体方面，英美单层董事会治理模式 中高管薪酬由监督型董事会及其下设的、由多数独立董事构成的薪酬委员会决定， 对决策机构的独立性有特殊要求，受股权主导理念的影响，鼓励股东薪酬话语权 的实施和机构投资者的积极参与。采用双层治理模式的德国《股份法》规定和介 于两种模式之间、寻求变革的日本《公司法》做法类似:由股东大会表决整体的 高管薪酬方案，再授权决策机构决定具体薪酬方案。结合现状，我国应当强化独 立董事地位，提升薪酬委员会独立性和专业性;重视股东积极主义，引入具有约 束力的股东薪酬投票制度，并采取单独计票的方式，改善中小股东在薪酬决策中 的弱势，同时鼓励机构投资者积极参与薪酬投票权征集等事宜。在决策程序方面，首先明确决策过程应遵守公平正义原则;其次，需针对高 管薪酬这一特殊利益冲突交易的特征，扩大表决权排除规则覆盖范围，尤其需要 针对高级管理人员和大股东作出明确规定;最后，完善事前的信息披露规则，提 升信息披露完整度与透明度，可考虑引入“不解释即遵守”规则，辅助信息披露 规则的实施，促进程序正义。

Executive compensation is an important means of governance for modern listed companies, but its improper use in practice has led to numerous problems represented by abnormally high salaries, which not only seriously harm the interests of companies and shareholders, but also jeopardize the sound operation of financial markets, thus inducing social injustice and intensifying social conflicts, and it is urgent to seek effective solutions from the legal level. As compared with the implementation and supervision, the decision of executive compensation has a key role in affecting the whole body, and its fairness is more likely to be eroded and buried deeper hidden dangers, therefore, the decision-making side of executive compensation can be taken as a breakthrough in the legislative level to make effective adjustment to the decision-making mechanism.The legal regulation of the decision-making mechanism of executive remuneration of listed companies in China, in addition to the defects of rough and unsystematic provisions, also fails to fully consider the operational difficulties faced by the decision-making mechanism under the existing legal framework. The decision on executive remuneration of listed companies is governed by the provisions of the Company Law of the People‘s Republic of China on limited liability companies. The shareholders‘ meeting decides the remuneration of directors and the board of directors decides the remuneration of executives. In practice, the Remuneration Committee, a body under the Board of Directors, has minimal terms of reference, the role of independent directors is minimal, the formalization of shareholders‘ meetings is serious, and the overall shareholding is highly concentrated but insider control continues unabated; procedural rules are imperfect and irregularities in corporate decision-making procedures are common. As a result of these multiple negative factors, the effectiveness of executive compensation decisions will undoubtedly be seriously interfered with.When learning from the outside, in order to avoid getting into dilemma again of legal transplantation, we should consider and make trade-offs with regard to extraterritorial experience based on the local context and the current situation. In terms of decision makers, the one-tier board system in the U.K. and the U.S., in which executive compensation is decided by a supervisory board of directors and a compensation committee composed of a majority of independent directors, has special requirements for the independence of the decision-making body, and is influenced by the concept of equity dominance, which encourages the implementation of shareholder‘s voice in compensation and the active participation of institutional investors. German Stock Company Act, which adopts a two-tier board system, provides for a similar approach to the Japanese Company Act, which falls in between above two models and is seeking change: the shareholders‘ meeting votes on the overall executive compensation package, and then authorizes the decision-making body to decide on the specific compensation package. In light of the current situation, we should strengthen the status of independent directors and enhance the independence and professionalism of the remuneration committee; attach importance to shareholder activism, introduce a binding shareholder remuneration voting system with separate vote counting to improve the vulnerability of small and medium-sized shareholders in remuneration decision-making, and encourage institutional investors to actively participate in matters such as remuneration vote solicitation.In terms of decision-making procedures, firstly, it is clear that the decision-making process should comply with the principle of fairness and justice; secondly, it is necessary to expand the coverage of the voting rights exclusion rules to address the characteristics of executive remuneration as a special conflict of interest transaction, and it is especially necessary to make clear provisions for senior managers and major shareholders; Finally, it is necessary to improve the prior information disclosure rules to enhance the completeness and transparency of information disclosure, and considerate to introduce the "comply or explain" rule to assist the implementation of information disclosure rules and promote procedural justice.