论独立审计人对第三人的民事责任
发布时间：2018-11-03 16:17
【摘要】：独立审计是商品经济发展到一定阶段的产物,其产生的直接原因是财产所有权和经营权的分离。在市场经济中,独立审计报告是公众投资和决策的重要依据。独立审计人由于故意或过失提供不实的审计报告,不仅委托人会遭受损失,而且第三人也会遭受重大的经济损失。在我国,以独立审计人为诉讼对象的案件越来越多,涌现出一股诉讼浪潮。由于会计界和普通民众对独立审计人的民事责任有着不同的认识,因此,合理地界定独立审计人对第三人的民事责任意义重大。独立审计人对第三人的民事责任包括第三人的范围、民事责任的性质、归责原则和构成要件等。目前,我国相关的立法规定非常简陋,法学理论的研究也相当薄弱,本文试图对此作一探讨。 独立审计人应当对多大范围内的第三人承担法律责任,是会计师民事责任中争议最大的问题。本文认为,在证券法上,我国目前将第三人界定为投资人只是权宜之计,应当逐步扩大第三人的范围。在侵权法中,可以借鉴“可合理预见的第三人”的标准,并按照具体的案件情形,综合考虑会计师与当事人之间的意思、会计师审计业务的目的和审计结果的用途等因素。独立审计人对第三人民事责任的性质,大陆法系和英美法系有不同的观念认识。笔者认为,应当根据专家责任的法理和会计师职业活动的特点界定为侵权责任。在归责原则上实行过错责任原则,在举证责任上实行举证责任倒置,即采用过错推定方法。在侵权责任构成要件上,本文认为应当实行过错和因果关系的推定,在损害事实上应当区分三种不同的损失,并结合其它的标准进行认定。
[Abstract]:Independent audit is the product of commodity economy development to a certain stage, and its direct reason is the separation of property ownership and management right. In market economy, independent audit report is the important basis of public investment and decision-making. Because the independent auditor provides false audit report intentionally or negligently, not only the client will suffer losses, but also the third person will suffer great economic losses. In China, there are more and more cases in which independent audit is the object of litigation. Since the accounting profession and the general public have different understanding of the civil liability of the independent auditor, it is of great significance to reasonably define the civil liability of the independent auditor to the third party. The civil liability of the independent auditor to the third party includes the scope of the third party, the nature of the civil liability, the principle of imputation and the constitutive requirements, etc. At present, the relevant legislative provisions in our country are very simple, and the study of legal theory is quite weak. It is the most controversial issue in the civil liability of accountants that the independent auditor should bear legal liability to the third party. This paper holds that in the securities law, the third party is defined as an expedient measure, and the scope of the third party should be expanded step by step. In tort law, we can draw lessons from the standard of "the third party reasonably foreseen" and consider the meaning between accountant and party, the purpose of accountant audit business and the use of audit result according to the specific case situation. Independent auditors have different views on the nature of civil liability of third parties, civil law system and common law system. The author believes that tort liability should be defined according to the legal principle of expert liability and the characteristics of accountant's professional activities. The principle of fault liability is applied in the principle of imputation, and the burden of proof is reversed on the burden of proof, that is, the method of presumption of fault is adopted. In terms of the constitutive elements of tort liability, this paper holds that the presumption of fault and causality should be carried out, and the damage should be distinguished from three different kinds of losses, which should be determined in combination with other standards.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D922.27;D923
本文编号：2308294
[Abstract]:Independent audit is the product of commodity economy development to a certain stage, and its direct reason is the separation of property ownership and management right. In market economy, independent audit report is the important basis of public investment and decision-making. Because the independent auditor provides false audit report intentionally or negligently, not only the client will suffer losses, but also the third person will suffer great economic losses. In China, there are more and more cases in which independent audit is the object of litigation. Since the accounting profession and the general public have different understanding of the civil liability of the independent auditor, it is of great significance to reasonably define the civil liability of the independent auditor to the third party. The civil liability of the independent auditor to the third party includes the scope of the third party, the nature of the civil liability, the principle of imputation and the constitutive requirements, etc. At present, the relevant legislative provisions in our country are very simple, and the study of legal theory is quite weak. It is the most controversial issue in the civil liability of accountants that the independent auditor should bear legal liability to the third party. This paper holds that in the securities law, the third party is defined as an expedient measure, and the scope of the third party should be expanded step by step. In tort law, we can draw lessons from the standard of "the third party reasonably foreseen" and consider the meaning between accountant and party, the purpose of accountant audit business and the use of audit result according to the specific case situation. Independent auditors have different views on the nature of civil liability of third parties, civil law system and common law system. The author believes that tort liability should be defined according to the legal principle of expert liability and the characteristics of accountant's professional activities. The principle of fault liability is applied in the principle of imputation, and the burden of proof is reversed on the burden of proof, that is, the method of presumption of fault is adopted. In terms of the constitutive elements of tort liability, this paper holds that the presumption of fault and causality should be carried out, and the damage should be distinguished from three different kinds of losses, which should be determined in combination with other standards.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D922.27;D923
【引证文献】
相关硕士学位论文 前1条
1 崔雅青;独立审计中注册会计师职业责任保险的研究[D];沈阳大学;2011年
，本文编号：2308294
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