会计师因虚假陈述对第三人承担之民事责任研究
本站原创 论文中文摘要：注册会计师的民事责任问题,自20世纪80年代的诉讼爆炸后,就成为了大众和学界都很关注的问题。近年来,在会计职业最为发达,针对会计师的诉讼也最为突出的美国爆发了一系列财务虚假案,导致安然、世通等大公司破产,也导致安达信这样一个有着90多年历史的世界级会计师事务所退出审计市场。在我国,最大的会计师事务所之一的中天会计师事务所也随着媒体对银广夏骗局的而轰然倒下,这些都印证了英国《金融时报》的说法:“公司倒了,会计师就得跟着倒”。在这些案件中,一方是可能因为一场诉讼而破产倒闭的会计师事务所,而另一方则是因信赖有瑕疵的财务报告而损失惨重的广大投资人,到底孰是孰非?应当如何评价和界定会计师在这些案件中所承担的民事责任?法学界显然无法也不应当保持沉默。1、研究的目的和意义自会计业作为独立的职业出现以后,不管在其后的任何时期,不管当时的会计师的民事责任被赋予了一个怎样的定位,总有两种不同的声音在辩论着,一方是极力主张会计师的民事责任应当在现有的基础上加重,而另一方又极力主张会计师已经承受了不能承受之重,是时候给他们“减负”了。旷日持久的交锋不但使得法官作出的判决有朝令夕改之嫌,而且也让会计职业无所适从,更令社会公众困惑甚至强烈不满,在这种情形下,探究交锋双方矛盾出现的根源,选择更为合理的责任界定和分配方式是很有必要的,这也是本文的主旨所在。此外,这一研究也具有很紧迫的现实意义。目前,我国会计师职业也面临与他们的国外同行相类似的遭遇——诉讼爆炸,公众对公司财务数据失去信心,会计师职业陷入悲观绝望,甚至会计学界发出了“会计师,先天有罪的职
Abstract（英文摘要）： Since the litigation explosion of the 1980’s, civil liabilities borne by CPA’s he become the center of attention by ordinary people and the academic circle. In recent years ,in the United States where there is the most advanced accounting profession as well as are the most appeals against accountants, a series of accounting scandals were disclosed to public and eventually led to bankruptcy of some giants like Enron and WorldCom and secede of Andersen, a world level accountants’ firm who had had a history of over 90 years, from auditing market. In China, Zhong Tian CPA Company, one of the largest accountants’ firms, also saw its judgement day when the Yinguangsha scandal was exposed to daylight by media. And all these are the mere reflection of what Financial Times put as " Bankruptcy of the CPA must follow that of the company". In such cases, one side are the CPA companies that might he been killed by a lawsuit concerning financial affairs, and the other side stand the investors who had lost a fortune due to their trust in the misleading financial reports. Which side is right, or wrong? How should the liabilities of these accountants in these cases be evaluated and defined? The law circle apparently should no longer be silent.1 、 What it means to do the research.Ever since accounting appeared as an independent profession, and at any moment onward and whatever civil liabilities of an accountant are defined, two voices are forever debating. One advocates an increased range of civil liabilities ofaccountants while the other complains that accountants he burdened what they were never ever could and it is time for a "burden relief. The prolonged fight not only makes the judge perhaps hing to alter in the evening the verdict he’d just subscribed in the morning, but also makes the accounting profession at loose ends, and even more it let people feel unsettled and causes severe public resentment. Under such circumstances, a more suitable approach to define and distribute liabilities is just necessary for digging the root of the cause of the fight, and this is the focal point of this article.In addition, the research bears pressing practical significance. Presently the accounting profession in China is also encountering the same as experienced by its foreign counterpart, lawsuit explosion .Declination of public trust in the financial data released by companies is driving the accounting profession into a desperate situation. Even the academic circle uttered "accountant, an innate guilty profession". However, the cause of the crisis occurring to the Chinese accounting profession is not exactly the same as that of US and other countries that he developed capital markets. Before long, a number of civil pleas taken against accountants occurred in our country and the cause of lawsuits mainly points at false capital verification reports made by accountants. And problems caused by capital verification, an accounting service with a strong Chinese flor, are a miniature of a concentrative outbreak of various contradictions under the tensile force exerted by the rapid economic development of our country and the tortile force exercised by the fast structural tranormation. It is the very Chinese local specialty. As the course of professionalization of accounting has just started, the internal natural conflicts existing in the accounting profession and corporate auditing process that occurred during the century long history of foreign accounting professionalization hen’t really appeared in China. But along with the development of securities market, auditing financial reports of listed companies being significant service offered by accountants, its problems he become even more outstanding. The internal and natural conflicts existing in the auditing service will be exposed sooner or later.Auditing is far more complicated than capital verification and has a wider influence, so it is likely to lead the newly born Chinese accounting profession to experiencing an even more serious auditing litigation explosion after experiencing capital verification litigation explosion. Therefore, using the theory development regarding liabilities borne by accountants of foreign countries especially common law countries as reference may maximize the use of the later-see-clearer advantage of our country in constructing relevant systems to help us take precautions in legislation in this field so as not to lose our head because of the litigation explosion that came all of a sudden.2^ Framework and Main Points.*This article is divided by content into five chapters.The first chapter defines the research objectives. In this chapter, the writer attempts to explain some important concepts and meanings in relation to this article, so the following chapters are more pertinent to the main points.The second discusses problems regarding the range of legal liabilities of accountants to the third party. The writer will try to review the evolvement of the rule of accountant’s liability to the third party, analyze the causes and meaning of and political factors hidden behind the contract relativity, awareness of a third party and foresee ability principles; and conclude that in order to step out the trap of problems with accountant’s liabilities to the third party the logic chain that "duty of care" deduces "legal liability" should be broken. And different imputation principles or fault criteria in different services provided by accountants should be used to increase or reduce degree of difficulty for the third party to claim for compensation from accountant, and the liability by shares system to mark off the range of liabilities borne by accountants should be used to achieve a multilateral beneficial balance.The third chapter discuses imputation principle relating to faults of practitioners of the accounting profession. On the basis of analysis of opinions respectively given under fault principle and no-fault principle, in line with the different characters of auditing business and capital verification business, we will classify the imputationprinciples that should be used in malpractice of the two types of accounting business by accountants.The fourth chapter talks about fault determination criteria used in malpractice of accountants. Here we will analyze the fault determination criteria’s change from subjective "professional carefulness" to objective auditing rules. By checking the legal status and rationality of auditing rules as fault determinations criteria, the writer attempts to prove the feasibility of making auditing rules the basis of fault determination criteria, and raise a point that inducting the virtual "professional carefulness" to fault determination criteria through appropriate arrangements of onus probandi can help eliminate the flaws occurred when auditing criteria are singly used as the primary standard for fault determination.The fifth chapter talks about fair distribution of liability for compensation caused by malpractice of accountants. Cutting in by comparing the accounting liability of the customer company with the auditing liability of the auditor, it is raised by the writer that on the condition that the customer company has "contributory fault", it becomes more rational to apply shared several liability system than joint and several system to partake losses.3 >. Research Methods.Firstly, the manner of argument all through this article is based on the core of common law rule. Development of the accounting profession is kind of lagged behind while development of capital market and that of the accounting profession itself do he certain similarities to the development of the common law countries, typically represented by US and UK in particular. A good reference to other’s faults can help us correct our own. Research of the evolvement of the accountant liability rules in common law countries,’ particularly their institutional innovation in overcoming accountant legal liability crisis, makes an inspiring sense for China to set up and perfect relevant regulations. Hence, a large quantity of exemplary cases concerning accountant liabilities, views from the judges and their train of thoughts insolving problems in common law countries are quoted in this article to make a comparison.Secondly, in discussions in this article, methods of typological analysis are applied here and there. The Chinese unique accountant verification service — capital verification —differs in value basis and technical features from the traditional accounting service - auditing, therefore, the writer applied method of comparative analysis in research of these two accounting services.Thirdly, method of doing the research from two different angles, accounting and judicial, is included in this article. Questions regarding accountant legal liabilities are an interdisciplinary topic involved with both the legal and the accounting professions. Any research taken from only one side is deemed unilateral and superficial. Therefore, whenever making panoramic observation of accountant legal liabilities or studying the specific regulations, this article tries its best to look at the issues simultaneously from the two angles.Finally, this article stresses a combination of cases and theory in terms of research method. Theoretically speaking accountant legal liability is merely one type of legal liabilities, so contradictions will be hardly revealed or research be deepened if they are analyzed by normal methods. For the accounting profession has its exclusive characters, it is easier to cut into the essential part of the problem by introducing classical case examples.
论文关键词： 会计师民事责任；虚假陈述；第三人范围；职业谨慎；执业过失；
Key words（英文摘要）： accountant’s Civil Liability；false statement；liability the range of legal liabilitity to the third party；professional carefulness；professional negligence；
Abstract（英文摘要）： Since the litigation explosion of the 1980’s, civil liabilities borne by CPA’s he become the center of attention by ordinary people and the academic circle. In recent years ,in the United States where there is the most advanced accounting profession as well as are the most appeals against accountants, a series of accounting scandals were disclosed to public and eventually led to bankruptcy of some giants like Enron and WorldCom and secede of Andersen, a world level accountants’ firm who had had a history of over 90 years, from auditing market. In China, Zhong Tian CPA Company, one of the largest accountants’ firms, also saw its judgement day when the Yinguangsha scandal was exposed to daylight by media. And all these are the mere reflection of what Financial Times put as " Bankruptcy of the CPA must follow that of the company". In such cases, one side are the CPA companies that might he been killed by a lawsuit concerning financial affairs, and the other side stand the investors who had lost a fortune due to their trust in the misleading financial reports. Which side is right, or wrong? How should the liabilities of these accountants in these cases be evaluated and defined? The law circle apparently should no longer be silent.1 、 What it means to do the research.Ever since accounting appeared as an independent profession, and at any moment onward and whatever civil liabilities of an accountant are defined, two voices are forever debating. One advocates an increased range of civil liabilities ofaccountants while the other complains that accountants he burdened what they were never ever could and it is time for a "burden relief. The prolonged fight not only makes the judge perhaps hing to alter in the evening the verdict he’d just subscribed in the morning, but also makes the accounting profession at loose ends, and even more it let people feel unsettled and causes severe public resentment. Under such circumstances, a more suitable approach to define and distribute liabilities is just necessary for digging the root of the cause of the fight, and this is the focal point of this article.In addition, the research bears pressing practical significance. Presently the accounting profession in China is also encountering the same as experienced by its foreign counterpart, lawsuit explosion .Declination of public trust in the financial data released by companies is driving the accounting profession into a desperate situation. Even the academic circle uttered "accountant, an innate guilty profession". However, the cause of the crisis occurring to the Chinese accounting profession is not exactly the same as that of US and other countries that he developed capital markets. Before long, a number of civil pleas taken against accountants occurred in our country and the cause of lawsuits mainly points at false capital verification reports made by accountants. And problems caused by capital verification, an accounting service with a strong Chinese flor, are a miniature of a concentrative outbreak of various contradictions under the tensile force exerted by the rapid economic development of our country and the tortile force exercised by the fast structural tranormation. It is the very Chinese local specialty. As the course of professionalization of accounting has just started, the internal natural conflicts existing in the accounting profession and corporate auditing process that occurred during the century long history of foreign accounting professionalization hen’t really appeared in China. But along with the development of securities market, auditing financial reports of listed companies being significant service offered by accountants, its problems he become even more outstanding. The internal and natural conflicts existing in the auditing service will be exposed sooner or later.Auditing is far more complicated than capital verification and has a wider influence, so it is likely to lead the newly born Chinese accounting profession to experiencing an even more serious auditing litigation explosion after experiencing capital verification litigation explosion. Therefore, using the theory development regarding liabilities borne by accountants of foreign countries especially common law countries as reference may maximize the use of the later-see-clearer advantage of our country in constructing relevant systems to help us take precautions in legislation in this field so as not to lose our head because of the litigation explosion that came all of a sudden.2^ Framework and Main Points.*This article is divided by content into five chapters.The first chapter defines the research objectives. In this chapter, the writer attempts to explain some important concepts and meanings in relation to this article, so the following chapters are more pertinent to the main points.The second discusses problems regarding the range of legal liabilities of accountants to the third party. The writer will try to review the evolvement of the rule of accountant’s liability to the third party, analyze the causes and meaning of and political factors hidden behind the contract relativity, awareness of a third party and foresee ability principles; and conclude that in order to step out the trap of problems with accountant’s liabilities to the third party the logic chain that "duty of care" deduces "legal liability" should be broken. And different imputation principles or fault criteria in different services provided by accountants should be used to increase or reduce degree of difficulty for the third party to claim for compensation from accountant, and the liability by shares system to mark off the range of liabilities borne by accountants should be used to achieve a multilateral beneficial balance.The third chapter discuses imputation principle relating to faults of practitioners of the accounting profession. On the basis of analysis of opinions respectively given under fault principle and no-fault principle, in line with the different characters of auditing business and capital verification business, we will classify the imputationprinciples that should be used in malpractice of the two types of accounting business by accountants.The fourth chapter talks about fault determination criteria used in malpractice of accountants. Here we will analyze the fault determination criteria’s change from subjective "professional carefulness" to objective auditing rules. By checking the legal status and rationality of auditing rules as fault determinations criteria, the writer attempts to prove the feasibility of making auditing rules the basis of fault determination criteria, and raise a point that inducting the virtual "professional carefulness" to fault determination criteria through appropriate arrangements of onus probandi can help eliminate the flaws occurred when auditing criteria are singly used as the primary standard for fault determination.The fifth chapter talks about fair distribution of liability for compensation caused by malpractice of accountants. Cutting in by comparing the accounting liability of the customer company with the auditing liability of the auditor, it is raised by the writer that on the condition that the customer company has "contributory fault", it becomes more rational to apply shared several liability system than joint and several system to partake losses.3 >. Research Methods.Firstly, the manner of argument all through this article is based on the core of common law rule. Development of the accounting profession is kind of lagged behind while development of capital market and that of the accounting profession itself do he certain similarities to the development of the common law countries, typically represented by US and UK in particular. A good reference to other’s faults can help us correct our own. Research of the evolvement of the accountant liability rules in common law countries,’ particularly their institutional innovation in overcoming accountant legal liability crisis, makes an inspiring sense for China to set up and perfect relevant regulations. Hence, a large quantity of exemplary cases concerning accountant liabilities, views from the judges and their train of thoughts insolving problems in common law countries are quoted in this article to make a comparison.Secondly, in discussions in this article, methods of typological analysis are applied here and there. The Chinese unique accountant verification service — capital verification —differs in value basis and technical features from the traditional accounting service - auditing, therefore, the writer applied method of comparative analysis in research of these two accounting services.Thirdly, method of doing the research from two different angles, accounting and judicial, is included in this article. Questions regarding accountant legal liabilities are an interdisciplinary topic involved with both the legal and the accounting professions. Any research taken from only one side is deemed unilateral and superficial. Therefore, whenever making panoramic observation of accountant legal liabilities or studying the specific regulations, this article tries its best to look at the issues simultaneously from the two angles.Finally, this article stresses a combination of cases and theory in terms of research method. Theoretically speaking accountant legal liability is merely one type of legal liabilities, so contradictions will be hardly revealed or research be deepened if they are analyzed by normal methods. For the accounting profession has its exclusive characters, it is easier to cut into the essential part of the problem by introducing classical case examples.
论文关键词： 会计师民事责任；虚假陈述；第三人范围；职业谨慎；执业过失；
Key words（英文摘要）： accountant’s Civil Liability；false statement；liability the range of legal liabilitity to the third party；professional carefulness；professional negligence；