注册会计师审计失败对第三人法律责任研究
发布时间：2018-08-14 16:52
【摘要】：注册会计师的法律责任问题，一直是西方法律界和会计界讨论的一个热点和难点问题，尤其是当注册会计师审计失败对第三人的法律责任问题。结合我国注册会计师法律责任的理论和实践，本文对注册会计师在审计失败时对第三人的法律责任问题进行了相对系统的研究和阐述。全文共四万余字，，分四个部分，要点如下： 本文第一部分对审计失败和第三人相关理论进行了探讨。首先对审计失败的概念作了界定，并与经营失败进行了比较。接着考察了第三人名称的由来和美国对第三人范围所进行的划分，并指出了该划分对我国的借鉴意义。在该部分，还分析了注册会计师审计失败对第三人责任的特殊性，并通过比较分析的方法考察了国外关于注册会计师审计失败对第三人责任的性质，并结合我国实际得出应把注册会计师审计失败对第三人责任的性质界定为侵权责任。 在注册会计师对第三人责任被认定为侵权责任性质基础上，本文第二部分着重分析了该责任的归责原则和构成要件。通过对国外和我国立法例的考察，作者认为应采用过错责任的归责原则，同时考虑到注册会计师的职业特点，应适用过错责任原则的特例——过错推定。对注册会计师适用过错推定的方法，一方面因免除第三人对注册会计师过错的举证责任而有利于第三人，另一方面又承认注册会计师举证反驳的效力，使没有过错的注册会计师有机会免除责任，从而有效地维护注册会计师和第三人双方的合法权利。接着，从我国立法和司法实践出发，作者主张注册会计师审计失败对第三人侵权责任由出具虚假审计报告(即违法性)、主观上过错、损害事实及行为与损害事实有因果关系等四要件组成。并对各要件一一作了分析，作者认为虚假审计报告的鉴定标准为：审计报告内容存在虚假性陈述和该虚假陈述存在重大性；考虑到审计意见的专业性和确保审计报告鉴定的独立和公平性，我国可建立一个审计鉴定委员会，负责 组织、协调和监督具体案件的鉴定等日常行政性管理工作，并采用“鉴定人随 机选任制度”;同时提出了过错的鉴定必须以独立审计执业准则为标准;考虑到 第三人对因果关系的举证难度，作者认为我国可借鉴美国证券法上的信赖推定 和欺诈市场理论。在该部分最后，作者从实体法和程序法方面提出了注册会计 师对第三人责任的抗辩事由。 在本文第三部分，作者探讨了注册会计师审计失败对第三人损害赔偿的责 任承担主体、赔偿范围及计算方法。认为损害赔偿的主体应为会计师事务所; 承担责任方式为比例或连带责任应结合具体情况而定;会计师事务所在赔偿后 可向故意或重大过错的注册会计师行使追偿权等。 最后，在结论部分，作者指出我国现有法律的缺陷和司法解释《1.9))规定 的不足，并提出立法建议。 关键词:注册会计师第三人侵权责任
[Abstract]:The issue of the legal liability of Certified Public Accountants has always been a hot and difficult issue in the western legal and accounting circles, especially when the auditing failure of certified public accountants to the third party. The issue of legal liability has been studied and elaborated systematically. The full text is composed of more than 40,000 words and is divided into four parts. The main points are as follows:
The first part of this paper discusses the related theories of auditing failure and the third party.Firstly, the concept of auditing failure is defined and compared with business failure.Then the origin of the third party name and the division of the scope of the third party in the United States are investigated, and the significance of the division to China is pointed out. This paper analyzes the particularity of the third party's liability for the CPA's audit failure, investigates the nature of the third party's liability for the CPA's audit failure in foreign countries by means of comparative analysis, and draws a conclusion that the nature of the CPA's liability for the third party should be defined as tort liability.
On the basis of the certified public accountant's liability for the third party being recognized as the nature of tort liability, the second part of this paper focuses on the analysis of the principle of liability fixation and its constituent elements. Fault presumption, a special case of the principle of fault liability, applies the method of fault presumption to certified public accountants. On the one hand, it benefits the third party by exempting the burden of proof of the fault of the third party, on the other hand, it admits the effectiveness of the refutation of proof by the certified public accountant, so that the certified public accountant without fault has the opportunity to exempt from liability. Then, starting from the legislative and judicial practice of our country, the author argues that the liability for the infringement of the third party caused by the audit failure of the CPA consists of four elements, namely, the issue of false audit report (i.e. illegality), subjective fault, causality between the damage facts and the damage facts. The author thinks that the appraisal standard of false audit report is: there are false statements in the contents of audit report and there is great significance in the false statements; considering the professionalism of audit opinion and ensuring the independence and fairness of audit report appraisal, China can establish an audit appraisal committee to be responsible for it.
Organizing, coordinating and supervising the routine administrative management of specific cases, and adopting the "appraiser"
At the same time, it points out that the identification of fault must be based on the standards of independent auditing practice.
The third person is difficult to prove the causality. The author believes that China can learn from the presumption of trust in US Securities Law.
And the theory of fraud market. Finally, the author puts forward the registration accounting from the aspects of substantive law and procedural law.
The defenses of the division to the third party's responsibility.
In the third part of the article, the author discusses the responsibility of the CPA audit failure to compensate the third party.
Assume the main body, the scope of compensation and the method of calculation.
The proportion of liability or joint liability should be determined according to the specific circumstances.
The right of recourse can be exercised by a certified public accountant with intent or major fault.
Finally, in the conclusion part, the author points out the defects of our existing laws and judicial interpretation <1.9).
And put forward legislative proposals.
Key words: CPAs third party tort liability
【学位授予单位】：四川大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D922.27;D923
本文编号：2183505
[Abstract]:The issue of the legal liability of Certified Public Accountants has always been a hot and difficult issue in the western legal and accounting circles, especially when the auditing failure of certified public accountants to the third party. The issue of legal liability has been studied and elaborated systematically. The full text is composed of more than 40,000 words and is divided into four parts. The main points are as follows:
The first part of this paper discusses the related theories of auditing failure and the third party.Firstly, the concept of auditing failure is defined and compared with business failure.Then the origin of the third party name and the division of the scope of the third party in the United States are investigated, and the significance of the division to China is pointed out. This paper analyzes the particularity of the third party's liability for the CPA's audit failure, investigates the nature of the third party's liability for the CPA's audit failure in foreign countries by means of comparative analysis, and draws a conclusion that the nature of the CPA's liability for the third party should be defined as tort liability.
On the basis of the certified public accountant's liability for the third party being recognized as the nature of tort liability, the second part of this paper focuses on the analysis of the principle of liability fixation and its constituent elements. Fault presumption, a special case of the principle of fault liability, applies the method of fault presumption to certified public accountants. On the one hand, it benefits the third party by exempting the burden of proof of the fault of the third party, on the other hand, it admits the effectiveness of the refutation of proof by the certified public accountant, so that the certified public accountant without fault has the opportunity to exempt from liability. Then, starting from the legislative and judicial practice of our country, the author argues that the liability for the infringement of the third party caused by the audit failure of the CPA consists of four elements, namely, the issue of false audit report (i.e. illegality), subjective fault, causality between the damage facts and the damage facts. The author thinks that the appraisal standard of false audit report is: there are false statements in the contents of audit report and there is great significance in the false statements; considering the professionalism of audit opinion and ensuring the independence and fairness of audit report appraisal, China can establish an audit appraisal committee to be responsible for it.
Organizing, coordinating and supervising the routine administrative management of specific cases, and adopting the "appraiser"
At the same time, it points out that the identification of fault must be based on the standards of independent auditing practice.
The third person is difficult to prove the causality. The author believes that China can learn from the presumption of trust in US Securities Law.
And the theory of fraud market. Finally, the author puts forward the registration accounting from the aspects of substantive law and procedural law.
The defenses of the division to the third party's responsibility.
In the third part of the article, the author discusses the responsibility of the CPA audit failure to compensate the third party.
Assume the main body, the scope of compensation and the method of calculation.
The proportion of liability or joint liability should be determined according to the specific circumstances.
The right of recourse can be exercised by a certified public accountant with intent or major fault.
Finally, in the conclusion part, the author points out the defects of our existing laws and judicial interpretation <1.9).
And put forward legislative proposals.
Key words: CPAs third party tort liability
【学位授予单位】：四川大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D922.27;D923
【引证文献】
相关期刊论文 前1条
1 张筱;郜建豪;;对审计失败含义的界定[J];中国内部审计;2011年02期
相关硕士学位论文 前3条
1 齐龙;注册会计师审计失败法律规制研究[D];东北财经大学;2006年
2 艾飞;我国注册会计师对第三人民事责任问题研究[D];复旦大学;2008年
3 兰莉萍;注册会计师对第三人侵权的民事责任[D];西南政法大学;2012年
本文编号：2183505
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