Research On Adopting Mechanism Of Forensic Accounting Identification

With the rapid development of market economy, the economic activities become active increasingly, the economic transactions become more and more complex, appeare a large number of financial fraud, false statements and other economic crime and disputes. The trail and judgment of these cases involve a large number of financial accounting and auditing expertise, all of thses are beyond the common sense and ability of judge. It needs accounting professionals to inspect, identificate and judge the specific financial and accounting involved, then issue the expert opinion evidence serve as the trial case basis. At the same time, in order to meet the independence of the functions of identification, the neutral of identification institutions and the professional of identification qualification in judicial reform, judicial accounting identification undertake by the organization of public security, procuratorial and court previously be spun off gradually from the judicial functions. Judicial accounting identification only retains in investigation organs because of its need of work. Accounting identification be borne by the social intermediary organizations mainly and will become the new business of certified public accountants(CPA)--forensic accounting identification. With the further development and perfection of our judicial system reform the CPA is the main force of forensic accounting identification and forensic accounting identification will become public accounting firm an important value-added services business.Before the identification institutions separate from the judicial organization,accounting identification appointed or consigned by judicial accounting identificationg of the court internal, its has qualifications of course, admissibility of expert opinion there is no problem. Generally in the trial, it direct adopts by the judge. However, after the identification institutions separate from the judicial organization, there are lack of scientific and rational criteria or rules of identification opinion issued by the independent agency or personnel (accounting firms and certified public accountants). Judges usually bases on hight and low of identification institutions, expert qualifications, ability and sequencing order to choice the conclusion, that is, the high level of accreditation institutions are more reliable than the lower level, the stronger ability institutions are more credible than the lower, the opinion of re-identification are priority to the original and so on.In theory, research on adopting mechanism of forensic accounting identification can enrich the judicial rules of evidence, improve adduce, cross examination and certification rules of evidence, help to perfect the forensic accounting identification system,and promote development the theory of forensic accounting identification. At the same time, It provides study examples for relative system of other types judicial identification (such as intellectual property judicial identification, tax judicial identification forensic and judicial identification of assets evaluation, etc.) and enriches theory and system of humanities and social science identification. In practice, research on adopting mechanism of forensic accounting identification can provide effective guidance of whether to adopt the opinion of forensic accounting identification. So as to achieve a just judge and improve the scientific and credibility of judicial identification effectively.Research on adopting mechanism of forensic accountants identification in broad perspective can improve the reliability of expert opinion, strengthen degree of social recognition of forensic accounting identification, and embody the value concept of entity and procedural justice and fairness.The paper analyses the evidence ability and proof capability of forensic accounting identification bases on the nature of expert evidence of forensic accounting identification, combines the properties of the evidence. Next, the paper researches the contents of adopting mechanism of forensic accounting identification bases on adopting mechanism and theory of forensic accounting identification. Then regards the adopting of forensic accounting identification as a whole system, analyses the various elements of system function. According to the elements of adopting mechanism and theory of forensic accounting identification, combins with the evidence property which pointed to, researches the jurisprudence, specific contents and system arrangements respectively. It includs the admissibility censor of opinion of forensic accounting identification, cross-examination of forensic accounting identification and adopting of forensic accounting identification.In research methods, the paper uses qualitative analysis mainly and uses comparative analysis and case studies assistantly. The paper serves accounting and auditing theory as the starting point, legal methodology, sociological division of labor theory and the theory of human cognition as strong point, and then from the perspective of comparative law, analyses the present situation, advantages and disadvantages and development trend of expert witness and judicial identificater system of two legal system. Then designs the adopting mechanism of forensic accounting identification bases on analysis of operation mechanism and theory. The case study of this paper bases on the case of accounting identifications carry out by certified public accountant mainly, also include the typical foreign forensic accounting expert witness cases. The cases come mainly from Data Support System of Legal Empirical Research of "peking university Lawyeee".The purpose of this paper in the following three aspects:(1) Establishment of the admissibility rules of forensic accountants identification can provided guidence for the judges to determine evidence ability of opinion of forensic accounting identification rightly, and avoid unqualified opinion of forensic accounting identification go into the court and disrupt the judges on the disputed financial accounting issues, while the rules also balance the judge to choose evidence, and prevent the arbitrary discretion of judges.(2) The paper provides accurate thoughts and direction guidence for the parties and their lawyers to challenge the evidence ability and proof capability of forensic accounting identification, and improves the efficiency and effectiveness of cross-examination effectively.(3) Analysis of the main factors which influences the facts judge (judge or jury) adopt expert opinion, which can help forensic accounting identificater to improve the reliability of expert opinions, and guide the facts judge to assert facts and adjudicate lawsuit correctly.The main conclusions of the paper are as follows:(1)The difference of litigation subject is main foundation of determining the contents of adopting mechanism, and the difference of litigation proceedings is important foundation of determining the contents of adopting mechanism. The different litigation subject have different functions. The contents of adoptin take a different focus at different stages of litigation proceedings. Even if the same subject, the requirements and strength of contents of adopting are also different. The adopting mechanism and theory of forensic accounting identification is the unification of evidence ability and proof capability. The nature of adopting of forensic accounting identification is attestation of evidence ability and proof capability.(2) The adopting of forensic accounting identification is an oxymoron process of the admissibility censor of opinion of forensic accounting identification, cross-examination of forensic accounting identification and adopting of forensic accounting identification.The Three aspects are linked closely, influenced and interacted each other. The adopting mechanism of forensic accounting identification are interactive processes, methods and principles of elements of the work systems.The admissibility of forensic accounting is related to adopting closely. The admisssibility is the premise of adopting,and is the basis of the whole adopting mechanism. The cross-examination is core content of the adopting mechanism, and adopting is the key piont of adopting mechanism.The difference in the subject, object and standards of three facts are the main factors which determines the content of adopting mechanism of forensic accounting.(3) In order to ensure opinion of forensic accounting identification can be used as evidence, and be admissibility, expert opinions of forensic accounting should obey the rules of admissibility as follows:The necessity of forensic accounting identification. Forensic accounting identificater have the qualifications of expert witness which recognized by the Ministry of Justice, and have good work ethic, and have not subject to warning, criticism or condemnation publicly because of errors in work. The process of collect evidence of forensic accounting identification is legitimate, operational procedure is normative, financial and accounting information based on is true and legitimate. The laws, rules and systems depend on is keep consistant with and existing laws, rules, systems and generally accepted accounting principles and practices. The accounting and auditing techniques and methods which used is consistent with the principles and methods which accounting academic circles used or authority publications recorded. The results of forensic accounting identification accord with formal requirements.(4) Ability of The parties and their lawyers should cross-examinate both evidence ability and proof capability of forensic accounting expert opinion. However, it does not accord to the order of evidence ability first and proof capability second, also carries out crossly. The parties and their lawyers should question the evidence ability of expert opinions as follows:Whethe the selection of forensic accounting expert is legality and integrity is good, and capability is suitable. Whethe forensic accounting expert is interest with their client, and is interest, and fees of forensic accounting identification are reasonable. As the object of forensic accountants identification financial accounting information is true and legal. The parties and their lawyers should question the proof capability of expert opinions as follows:Whethe the reason of forensic accounting identification is tight, the demonstration is adequacy. Whether the process of forensic accounting identification is normative. Whether forensic accounting expert opinion is reliable.(5) Legal true is acquaintance basis of rules thought of judge, and judicial justice is value pursue. The way of judge thinking mode had logical and procedural, which determine the forensic accounting expert opinion of the adoption directly. The adoption of forensic accounting identification is to judge the proof capability of forensic accounting identification, which is a process of free heart-proof essentially. This process is affected by experience regulations and obeys the unique thinking mode and thinking rules of judges.(6) The parties and their lawyers discreted the proof capability of expert opinion freely, which base on cross-examine the expert opinion of forensic accounting identification. The major factors which influence the judge to adopt expert opinion as follows. Expert testimony, financial and accounting information, expert knowledge or experience had inherent logic relations. The accounting and auditing theories, techniques and methods used in forensic accounting identification are appropriate. The opinion of forensic accounting identification and other evidence are complementary, and their have reasonable and logical relations. Cross-examination influences the proof capability of forensic accounting expert opinion. Whether judge and forensic accounting expert have long-term partnership.(7) The model of adopting the evidence of jury is story reconstruction. The adopting the evidence of jury do not only simply dependent on information obtained in the trial, but also the other relevant information, which is relative and necessary to shape the story, and their play a decisive role. The major factors which influenced the jury to adopt expert opinion as follows. The credibility of forensic accounting expert, including the behavior of forensic accounting expert, the language of forensic accounting expert, the interests and motivation of forensic accounting expert. The credibility of forensic accounting expert opinion, including whethe the argument of forensic accounting expert opinion is adequacy, whethe the logical reasoning of forensic accounting expert opinion is strict, whethe the statement of forensic accounting expert opinion is clear.(8) By no-admissibility, no-adoptability and adoptability three typical cases, this paper believes that Chinese current adopting of forensic accounting identification exite outstanding problems as follows. Forensic accounting identifications lack of procedural rationality, which embody that the commission is illegal and unnecessary. The financial accounting information which served as the object of forensic accounting identification is unreliable and incomplete. Forensic accounting experts do not testify in court and accepte query. The solution of these problems rely on putting the adopting mechanism of forensic accounting identification into effect and building up relative guarantee measures and systems.The innovation of this paper are as following three areas.(1)The paper built up the general adopting mechanism of forensic accounting identification bases on operation mechanism and theory of forensic accounting identification. The paper points out that adopting of forensic accounting identification is a systematic project firstly. It is an organic whole made up of three judicail subjects of different purposes and different functions which evaluate and judge expert evidence. The adopting mechanism of forensic accounting identification is a general systematic project which embody the value concept of entity and procedural justice and fairness. The admisssibility is the premise of adopting,and is the basis of the whole adopting mechanism. The cross-examination is core content of the adopting mechanism, and adopting is the key piont of adopting mechanism.(2) The paper references English and American admissibility rules of expert evidence and combines with the nature and characteristics of forensic accountants identification, then builds up the admissibility rules of opinion of forensic accounting identification, which provide guidance and help for judge to evaluate the evidence ability of expert opinion of forensic accounting identification.(3) The Adoption evidence and asseting facts which sentenced by judge freely. However, demonstration procedures of free heart-proof lack of transparency, in theory, the inner process of adopting becmes blind point of research. This paper finds the main factors which influence judge and jury to adopt expert opinion of forensic accounting identification respectively based on disserting of thinking mode and rules of judge and analysing adopting model of jury. These factors contribute to improve degree of adopting forensic accounting identification expert opinion, guide the judges of fact to asset the facts and sentence the lawsuit.