关键词: 股权激励, “顶身股”, 商事习惯, 公司自治

Abstract: Research on the legal construction of equity incentive system should pay attention to the relevant commercial custom.The earliest equity incentive system in China can be traced back to the “labor-sharing” of Shanxi merchants.Therefore,in the construction of Chinas equity incentive system,we should not only consider the factors of the times,but also draw nutrients from the commercial custom.There is a great agreement between “labor-sharing” system and modern equity incentive in terms of incentive function,credit trust,and emphasis on “human capital”,which provides a historical heritage of the institutional basis.However,the imbalance between “labor-sharing” and silver stock,the unequal rights and responsibilities,the large proportion of dividends,the lack of effective supervision and other problems also provide reflection for the legal construction of equity incentive system.The legal construction of the system of equity incentive should absorb the nutrients from the system of “labor-sharing”,take its essence and discard its dregs,and adhere to the principles of “autonomy is the main,and guidance is complementary”,“discarding history” and “systematization”,so as to construct the legal system of equity incentive that is suitable for Chinas national conditions.

Key words: equity incentive:“labor-sharing”, commercial custom, corporate autonomy