证券虚假陈述赔偿中审计人责任构成要件与责任限缩

作为审计人的注册会计师事务所具有信息输出的不独立性、信用输出的独立性和责任承担的不独立性。我国《证券法》对审计人设定了基于积极防范义务的过错推定责任,这种责任模式重于以美国为代表的中介机构仅在知情、实质性地参与虚假陈述时承担责任的模式。当发行人和审计人存在实施虚假陈述的共同故意,或一为故意一为重大过失时,应视为主观的共...

The Components and Constriction of Auditor s Compensation Liability for Securities Misrepresentation

When an accountant firm work as an auditor of securities disclosure documents,it has a non-independent information providing,an independent credit providing and a non-independent liability.Chinese laws set a fault-presumed liability model for auditors who should actively prevent a misrepresentation.Such model is stricter than the US style in which the intermediaries are liable only when they knowingly substantially participate in the misrepresentation.When the issuer and the auditor both have intentions to misrepresent,or when latter is reckless,they shall be deemed as subjective co-tort and bear joint liabilities.If the auditor is slightly negligent,its joint liability could be limited to partial losses.The different layers of fault of auditors should be judged in accordance with the degree of diligence exerted by the auditor.Audition Compensation Provisions classifies failure to identify a violation that“should be known”,which is a procedural rather than a substantive presumption of mental status of the auditor.There should be a more accurate weigh of negligent inappropriate auditor acts.Faults cannot be derived merely from the result of misrepresentation.Various reasons may lead to the failure of detecting accounting misstatements.The compensation liability should be equipped with a prerequisite procedures and be a model based on the variation of faults.A partial complementary liability model should be set for the negligent cases.