公司治理面向下董事報酬及酬勞法制－－結構、決定及監控

系所名稱：財經法律研究所 學位別：碩士 畢業學年：97年 指導教授：陳彥良 現代公司由於經營與所有的分離，使得公司業務經營的權限掌握於董事會手中，股東們不禁要問：董事會在意股東的利益嗎？不見得會得到肯定的答案。那麼，應該如何防止董事違背股東之利益呢？答案就是給與董事適當及合理的報酬。 至於應該給與董事什麼樣的報酬，才可以合理的評估董事對於公司及股東所付出之勞力及時間呢？董事報酬如何才稱為合理呢？董事報酬應該給與多少才不會侵害公司及股東應得知利益呢？又董事報酬應該由誰決定才比較適當呢？加上董事會掌握公司之業務經營且具有資訊上之優勢，股東應該如何去監督董事的報酬呢？上述問題看來，不見得有一個肯定的答案。但是，董事報酬攸關著公司及股東之利益，同時更與公司治理是否健全有關。 有鑑於此，本文嘗試從公司治理角度切入，探究給與董事報酬之沿革及董事對於報酬之請求權，並且探討董事報酬應如何構成才可以在反映董事對於公司付出勞力及時間的同時，並且兼顧公司及股東之利益。再者，若由董事會自行決定董事之報酬，不免會有董事自肥之虞，故董事報酬仍應由股東會決議。但是，於股東會決議之外，是否可能有其他決定董事報酬之方式，本文亦一併探究之。 最後，不論董事報酬如何設計或是否合理、董事報酬由誰或何種機關決定，只有將董事報酬透明化，將董事報酬之相關資訊揭露，才可以使股東知悉董事報酬之內容。最重要的是，股東如何在公司法、證券交易法等相關法規所賦予之權利，對於董事報酬為監控。同時，由身為公司所有者之股東自己介入董事報酬之監控，才是最能使股東放心的監控模式。畢竟，只有股東自己才是股東最相信的人。

Due to the separation of the management and ownership of the corporate nowadays, it makes the authority of corporate management controlled by the board of directors. The shareholders can’t help wonder if the board of directors cares about the interests of the shareholders? It is not necessarily a positive answer. Therefore, how to prevent the directors from going against the interests of the shareholders ? The solution is to offer the directors adequate and reasonable compensation. As far as the paper herein is concerned, what kind of compensation should be offered to the directors in order to reasonably assess the time and effort which the directors have devoted for the entire corporate and the shareholders? How much of the directors compensation is called reasonable? How much is the directors compensation offered so as not to infringe on the deserved interests of the corporate and shareholders? And, who is the appropriate one to determine the directors compensation? Moreover, the board of directors possesses the management authority and takes advantage of information accessibility. Under such situation, how should the shareholders supervise the directors compensation? For the aforementioned questions, there is probably no positive answer. Nevertheless, directors compensation is closely related to the interests of corporate and shareholders, and it is meanwhile related to whether the corporate governance is sound and integrated. Generated from all these crucial points, the paper herein tries to reveal the problems from the viewpoint of corporate governance to investigate the change and development of directors compensation offered and the directors’ pleading right for compensation. Besides, the paper herein also investigates how the directors compensation is constructed in order to reflect the time and effort which the directors have devoted for the corporate, and in the mean time to take the interests of corporate and shareholders into consideration. In addition, if the directors compensation is determined by the board of directors, it is likely that the directors might do for their own good. Hence the directors compensation still should be resolved by the shareholders’ meeting. However, apart from the resolution of shareholders’ meeting, if there is any other possible solution to determine the directors compensation which of that is the issue the paper herein will also explore.Last but not least, no matter how the directors compensation is schemed or if it is reasonable as well as who or what kind of organization should determine the directors compensation, it is the only way to acquaint the shareholders with the details of directors compensation that the directors compensation is brought into the public and related information disclosure of directors compensation is done. The most important of all, how could the shareholders supervise the directors compensation under the rights which are entitled by the Corporate Law, Securities and Exchange Law and other relevant legislation. In the meanwhile, only if the directors compensation is monitored and supervised by the corporate owners who are the shareholder themselves, it is the most safe and assured solution for the shareholders. After all, only the shareholders themselves are the ones who the shareholders truly trust.