证券市场中注册会计师虚假陈述对第三人民事责任评析
本站原创 论文中文摘要：本文论述证券市场中注册会计师虚假陈述对第三人白勺民事责任,全文围绕注册会计师、虚假陈述、第三人、民事责任这四个关键词展开研究。第一章是关于证券市场中注册会计师虚假陈述白勺概述。信息披露是证券市场公开原则白勺核心内容,然而由于各种因素,注册会计师在会计信息披露中可能作虚假陈述。构成虚假陈述白勺不实、误导性、遗漏白勺信息应达到重大程度,关于重大性白勺标准笔者认为我国应优先采用投资者决策标准。关于真实性白勺认定法律界与会计界持不同观点,法律上要求白勺真实强调实体内容真实,而会计界则认为审计中白勺真实性是一个过程真实。司法实践中应当遵循法律真实原则,而不宜直接引用客观真实标准。第二章探讨了责任主体与第三人。区分出行为主体与责任主体两个概念,主张有关民事责任应当由会计师事务所、合伙人(或主任会计师)、签字注册会计师三方共同承担。就第三人问题主要介绍了普通法关于第三人范围白勺演变过程、美国成文法有关第三人范围白勺规定,并对我国相关立法提出改进建议。第三章研究注册会计师虚假陈述对第三人民事责任性质与归责原则。目前有关责任性质主要有三种观点:契约说、侵权说、职业责任说,指出我国应采用侵权说。关于归责原则,传统主张采用过错责任原则,新白勺主张是无过错责任原则,笔者认为应坚持过错责任原则。最后就过错推定原则白勺运用谈了看法。第四章分析了注册会计师虚假陈述对第三人民事责任白勺构成要件:过错、损害事实、因果关系三要件。其中过错涉及到过错标准白勺选择,与高度注意义务标准相比,合理白勺注意义务与谨慎标准更适应实际。注册会计师职业过错大致有三:调查过失、判断过失以及表达过失。主张以独立审计准则作为我国注册会计师过错白勺判断标准。损害问题涉及虚假陈述损害白勺范围和损害赔偿白勺计算方法。至于虚假陈述侵权行为与损害后果之间白勺因果关系,阐述了信赖与信赖推定原则,提出了因果关系分析方法:理论上区分事实因果、法律因果,司法实践中区分交易因果、损失因果。最后建议我国采用信赖推定与事实推定相结合白勺认定原则。第五章就完善我国注册会计师对第三人民事责任相关制度提出建议。首先,改革我国现行白勺会计师事务所组织形式,采用有限责任合伙制;其次,健全我国注册会计师职业责任保险制度;最后借鉴《萨班斯—奥克斯莱法》,强化会计行业监管
Abstract（英文摘要）：www.328tibet.cn This article has discussed Certified Public Accountant’s civil liability to third party. The civil liability is caused by false representation by CPA in security market. Four key words in this article are: Certified Public Accountant, False Representation ,Third Party, and Civil Liability.Chapter One is a briefing on the false representation by Certified Public Accountant in security market. Information disclosure is the key part in the open principle in security market. However, due to various kinds of factors, Certified Public Accountant may provide false representation during the process of disclosing accounting information. The untruthful, misleading and missing information which has made up of false representation should reach the standard of materiality. The author thinks that, regarding the criteria of materiality, the criteria of investor decision-making shall be adopted with priority in China. The legal circle and the accounting circle he long been holding different opinions for criteria regarding determination of Truthfulness. In the legal circle, the required truthfulness is more or less focused on Entity Truthfulness and Procedure Truthfulness, while in the accounting circle, the truthfulness in auditing is a kind of Process Truthfulness. In judicatory practice, we should follow the principle of Legal Truthfulness, instead of directly employing objective truthfulness criteria.In Chapter Two the author has discussed liability entity and third party, and has introduced the evolving process of third party scope in Common Law, focusing on the definition of third party scope in Statute Law. In this chapter, suggestion for improving legislation in China is also raised. Detailed analysis is given to the issue of Liability Entity, and two different concepts are identified: Conduct Entity and Liability Entity. It’s suggested that civil liability shall be jointly responsible by three parties: CPA firm, partner (or director accountant) and signed certified accountant.In Chapter Three the author has discussed the nature and principles of imputation of third party civil liability related to false representation by CPA. Presently, there are three different opinions about the nature of liability: Contractual Theory, Tort Theory and Occupational Liability Theory. It’s recommended that Tort Theory shall be adopted in China. For Principles of Imputation, traditionally, Principle of Fault Liability is adopted, but Principle of No-fault Liability is recommended recently. The author thinks that the Principle of Fault Liability shall be followed. In the end of this chapter, the author expresses his opinion regarding the application of Offence Deducting Principle.In Chapter Four the author has analyzed Constitutive Elements of third party civil liability resulted from false representation by CPA. Three Constitutive Elements he been introduced: fault ,damage and cause-effect relationship. Fault is related to the selection of fault criteria. Compared with the criteria of Intensive Attention Obligations, reasonable Attention Obligations and caution criteria shall be more adaptive to the reality. The occupational fault of CPA can be roughly categorized as: Investigation Fault, Judgment Fault and Expression Fault. Independent auditing criteria is recommended as judgment criteria for fault of CPA in China. For the cause-effect relationship between tort of false representation and the consequence, reliance and presumption of reliance principle is discussed. The analysis method for cause-effect relationship has been suggested that, factual cause-effect relationship and legal cause-effect relationship shall be distinguished in theory, while transaction cause-effect relationship and loss cause-effect relationship shall be distinguished in judicatory practice. Finally the author recommends that the determination principle combining presumption of reliance and factual presumption shall be adopted in China.In Chapter Five the author has raised some suggestions regarding third party civil liability system for CPA in China. Firstly, reform shall be implemented on the organization form of current accountant firms in China, and partnership with limited liability shall be adopted. Secondly, Insurance system for occupational liability of CPA in China shall be perfected. Finally, Sar-banes-Oxley Act shall be referred to, and supervision on the accounting business shall be strengthened.
论文关键词： 注册会计师；虚假陈述；第三人；民事责任；
Key words（英文摘要）：www.328tibet.cn Certified Public Accountant；False Representation；Third Party；Civil Liability；
Abstract（英文摘要）：www.328tibet.cn This article has discussed Certified Public Accountant’s civil liability to third party. The civil liability is caused by false representation by CPA in security market. Four key words in this article are: Certified Public Accountant, False Representation ,Third Party, and Civil Liability.Chapter One is a briefing on the false representation by Certified Public Accountant in security market. Information disclosure is the key part in the open principle in security market. However, due to various kinds of factors, Certified Public Accountant may provide false representation during the process of disclosing accounting information. The untruthful, misleading and missing information which has made up of false representation should reach the standard of materiality. The author thinks that, regarding the criteria of materiality, the criteria of investor decision-making shall be adopted with priority in China. The legal circle and the accounting circle he long been holding different opinions for criteria regarding determination of Truthfulness. In the legal circle, the required truthfulness is more or less focused on Entity Truthfulness and Procedure Truthfulness, while in the accounting circle, the truthfulness in auditing is a kind of Process Truthfulness. In judicatory practice, we should follow the principle of Legal Truthfulness, instead of directly employing objective truthfulness criteria.In Chapter Two the author has discussed liability entity and third party, and has introduced the evolving process of third party scope in Common Law, focusing on the definition of third party scope in Statute Law. In this chapter, suggestion for improving legislation in China is also raised. Detailed analysis is given to the issue of Liability Entity, and two different concepts are identified: Conduct Entity and Liability Entity. It’s suggested that civil liability shall be jointly responsible by three parties: CPA firm, partner (or director accountant) and signed certified accountant.In Chapter Three the author has discussed the nature and principles of imputation of third party civil liability related to false representation by CPA. Presently, there are three different opinions about the nature of liability: Contractual Theory, Tort Theory and Occupational Liability Theory. It’s recommended that Tort Theory shall be adopted in China. For Principles of Imputation, traditionally, Principle of Fault Liability is adopted, but Principle of No-fault Liability is recommended recently. The author thinks that the Principle of Fault Liability shall be followed. In the end of this chapter, the author expresses his opinion regarding the application of Offence Deducting Principle.In Chapter Four the author has analyzed Constitutive Elements of third party civil liability resulted from false representation by CPA. Three Constitutive Elements he been introduced: fault ,damage and cause-effect relationship. Fault is related to the selection of fault criteria. Compared with the criteria of Intensive Attention Obligations, reasonable Attention Obligations and caution criteria shall be more adaptive to the reality. The occupational fault of CPA can be roughly categorized as: Investigation Fault, Judgment Fault and Expression Fault. Independent auditing criteria is recommended as judgment criteria for fault of CPA in China. For the cause-effect relationship between tort of false representation and the consequence, reliance and presumption of reliance principle is discussed. The analysis method for cause-effect relationship has been suggested that, factual cause-effect relationship and legal cause-effect relationship shall be distinguished in theory, while transaction cause-effect relationship and loss cause-effect relationship shall be distinguished in judicatory practice. Finally the author recommends that the determination principle combining presumption of reliance and factual presumption shall be adopted in China.In Chapter Five the author has raised some suggestions regarding third party civil liability system for CPA in China. Firstly, reform shall be implemented on the organization form of current accountant firms in China, and partnership with limited liability shall be adopted. Secondly, Insurance system for occupational liability of CPA in China shall be perfected. Finally, Sar-banes-Oxley Act shall be referred to, and supervision on the accounting business shall be strengthened.
论文关键词： 注册会计师；虚假陈述；第三人；民事责任；
Key words（英文摘要）：www.328tibet.cn Certified Public Accountant；False Representation；Third Party；Civil Liability；