证券市场信息披露中注册会计师民事侵权责任研究
本站原创 论文中文摘要：本世纪初,上市公司案频频发生,人们不禁对注册会计师白勺执业质量产生怀疑,同时注册会计师白勺民事侵权责任也引起了广泛白勺关注。正是在这种背景下,本文试图对证券市场信息披露中注册会计师民事侵权责任加以探讨。本文认为,注册会计师民事侵权责任属于专家责任,证券市场信息披露中注册会计师民事侵权责任白勺归责原则应该适用过错责任原则,具体采取过错推定白勺方法。证券市场虚假陈述案中注册会计师白勺侵权责任白勺构成要件为“构成虚假陈述、注册会计师有过错、利益关系第三人遭受了损失、注册会计师过错行为与损害事实之间有因果关系”。当然,注册会计师可以提出一些抗辩事由,以减轻或免除责任。在责任承担白勺问题上,笔者认为应该区分不同情况采取连带责任或者补充责任。另外,应该积极推行注册会计师职业责任保险制度,以分散风险,这样不仅可以保障注册会计师免受损害赔偿造成白勺巨额损失,又能确保受害者得到及时、充分白勺损害补偿
Abstract（英文摘要）：www.328tibet.cn Certified Public Accountants are functioning as the most important gate-keepers in the process of assuring the quality of information disclosure in the current securities market, in which the information disclosure system has been severely distorted by the flood of misrepresentation. But in the early of this century, listed company concocted in financing, which multifariously took place, which made the CPA tort liability become a hot point of theories study again. Most countries around the world began to question the credibility of the CPA. This paper tries to discuss the CPA tort liability in the course of information disclosure in the securities market, tries to study the nature of the CPA tort liability, the returning of duty principle CPA tort liability, important constitution of the CPA tort liability, the defenses of the CPA tort liability, duty undertake of the accounting firm. This paper fully considered experiences of all concerned parties, and focused on the specific issue of the CPA tort liability . Chapter 1 discussed the conception and nature of the CPA tort liability. The CPA tort liability means the CPA and the accounting firm should undertake the civil duty if the CPA causes the damages to others in the course of audit. The tort liability of CPA is a kind of professional responsibility. Secondly, I discussed the independence of the CPA. Independence is the basic demand when the CPA carry out the audit business, is also the essential element of the development of this occupation. But, if the independence of the CPA is influenced, the damages of the related parties are caused and the justness of the audit result is influenced. So, it is necessary to take measures to control the actions of the CPA. Thirdly,this paper make a simple introduction about abroad, particularly the history of the CPA tort liability in USA, which was developed by lawmaking and judicial precedence. The law of tort in USA is more flexible, and the related provisions within its stock law also more deserve to draw lessons from. In our country, the occupation of the CPA developed from 1980’s in the last century, and legal liability system is developing. Chapter 2 mainly discussed the principle of returning duty of CPA tort liability in the course of information disclosure in the securities market. The core of CPA tort liability is returning duty principle, because it decides important constitutions of CPA tort liability, the undertaking of offer proof duty, the defenses of CPA tort liability, principle and method of compensate, the basis of lessen duty etc. Therefore, making reasonable the principle of returning duty is the base that constitutes whole CPA tort liability. This paper thinks that CPA tort liability should practice the fault duty. Victims who directly claim to the CPA must prove that the CPA has fault, in consideration of the special of the stock civil case in court, to such kind of case, we should adopt the understand fault principle. Chapter 3 discussed the four elements of the CPA tort liability in the course of information disclosure in the securities market, and also discussed the exemptions of liability based on the foregoing discussion. (1) Misrepresentation, also call Misstatement, means generally that the contents or conclusion of audit report or verify the capital report is not accordance with fact. And put forward “materiality”standard to judge. Namely, the audit report or verify capital report only exists “misrepresentation”, CPA are not necessaryundertake the duty, we still see the “misrepresentation ”whether he “materiality”. (2) Fault. The fault includes intention and negligence. The judgement standard of fault is CPA does his duty diligently.(Also called “due diligence”) The judgement standard contains subjective standard and objective standard, the subjective standard may be called “cautious person”standard, the objective standard is CPA auditing standard. The subjective and objective standards should be combined to judge whether CPA does his duty diligently. (3) The Loss. The loss is the essential condition that CPA undertakes liability, and victim should offer proof to prove loss. (4) The Causation. Namely, That loss and fault he the cause and effect relation. We should adopt the principle of understanding the cause and effect in the stock litigation. Then next part discussed the defenses of CPA tort liability. The defenses are litigation claim that defendant bring up to aim at the plaintiff to make oneself exempt the duty or alleviate the duty. In the cases of CPA tort liability in the securities market, I think that the defenses which Certified Public Accountants and their accounting firm may put forward include: the loss and fault he not the cause and effect relation, There is common negligence between the CPA and his client, There is admixture fault between CPA and plaintiff, and the fault of the plaintiff oneself. Chapter 4 discussed the duty undertake of the CPA. In our country, under current law provision, to the tort liability of the CPA, tort behior and the person answer the duty is separation. The behior is the CPA, but the person answer the duty is the accounting firm. (Now, the CPA of the direct duty directly undertakes the civil duty in the stock litigation.) Therefore, the accounting firm has recourse to its employee who has fault after it
论文关键词： 注册会计师白勺独立性；虚假陈述；过错推定；注册会计师职业责任保险；
Abstract（英文摘要）：www.328tibet.cn Certified Public Accountants are functioning as the most important gate-keepers in the process of assuring the quality of information disclosure in the current securities market, in which the information disclosure system has been severely distorted by the flood of misrepresentation. But in the early of this century, listed company concocted in financing, which multifariously took place, which made the CPA tort liability become a hot point of theories study again. Most countries around the world began to question the credibility of the CPA. This paper tries to discuss the CPA tort liability in the course of information disclosure in the securities market, tries to study the nature of the CPA tort liability, the returning of duty principle CPA tort liability, important constitution of the CPA tort liability, the defenses of the CPA tort liability, duty undertake of the accounting firm. This paper fully considered experiences of all concerned parties, and focused on the specific issue of the CPA tort liability . Chapter 1 discussed the conception and nature of the CPA tort liability. The CPA tort liability means the CPA and the accounting firm should undertake the civil duty if the CPA causes the damages to others in the course of audit. The tort liability of CPA is a kind of professional responsibility. Secondly, I discussed the independence of the CPA. Independence is the basic demand when the CPA carry out the audit business, is also the essential element of the development of this occupation. But, if the independence of the CPA is influenced, the damages of the related parties are caused and the justness of the audit result is influenced. So, it is necessary to take measures to control the actions of the CPA. Thirdly,this paper make a simple introduction about abroad, particularly the history of the CPA tort liability in USA, which was developed by lawmaking and judicial precedence. The law of tort in USA is more flexible, and the related provisions within its stock law also more deserve to draw lessons from. In our country, the occupation of the CPA developed from 1980’s in the last century, and legal liability system is developing. Chapter 2 mainly discussed the principle of returning duty of CPA tort liability in the course of information disclosure in the securities market. The core of CPA tort liability is returning duty principle, because it decides important constitutions of CPA tort liability, the undertaking of offer proof duty, the defenses of CPA tort liability, principle and method of compensate, the basis of lessen duty etc. Therefore, making reasonable the principle of returning duty is the base that constitutes whole CPA tort liability. This paper thinks that CPA tort liability should practice the fault duty. Victims who directly claim to the CPA must prove that the CPA has fault, in consideration of the special of the stock civil case in court, to such kind of case, we should adopt the understand fault principle. Chapter 3 discussed the four elements of the CPA tort liability in the course of information disclosure in the securities market, and also discussed the exemptions of liability based on the foregoing discussion. (1) Misrepresentation, also call Misstatement, means generally that the contents or conclusion of audit report or verify the capital report is not accordance with fact. And put forward “materiality”standard to judge. Namely, the audit report or verify capital report only exists “misrepresentation”, CPA are not necessaryundertake the duty, we still see the “misrepresentation ”whether he “materiality”. (2) Fault. The fault includes intention and negligence. The judgement standard of fault is CPA does his duty diligently.(Also called “due diligence”) The judgement standard contains subjective standard and objective standard, the subjective standard may be called “cautious person”standard, the objective standard is CPA auditing standard. The subjective and objective standards should be combined to judge whether CPA does his duty diligently. (3) The Loss. The loss is the essential condition that CPA undertakes liability, and victim should offer proof to prove loss. (4) The Causation. Namely, That loss and fault he the cause and effect relation. We should adopt the principle of understanding the cause and effect in the stock litigation. Then next part discussed the defenses of CPA tort liability. The defenses are litigation claim that defendant bring up to aim at the plaintiff to make oneself exempt the duty or alleviate the duty. In the cases of CPA tort liability in the securities market, I think that the defenses which Certified Public Accountants and their accounting firm may put forward include: the loss and fault he not the cause and effect relation, There is common negligence between the CPA and his client, There is admixture fault between CPA and plaintiff, and the fault of the plaintiff oneself. Chapter 4 discussed the duty undertake of the CPA. In our country, under current law provision, to the tort liability of the CPA, tort behior and the person answer the duty is separation. The behior is the CPA, but the person answer the duty is the accounting firm. (Now, the CPA of the direct duty directly undertakes the civil duty in the stock litigation.) Therefore, the accounting firm has recourse to its employee who has fault after it
论文关键词： 注册会计师白勺独立性；虚假陈述；过错推定；注册会计师职业责任保险；