The Research On Tort Liability Of The Accounting Firm To The Third Party In Independent Auditing

Looking at the legal systems and symbolic cases of different countries in different periods,there are many kinds of legal basis relations about civil liability of the accounting firm to the third party in independent auditing.The main five relations are the contract law,tort law,securities law,expert responsibility and corporate governance structure.In China's current legal system,this civil liability is clearly a tort liability through Judicial Interpretation No.[2007] 12,and the imputation principle of this tort liability is the presumption of fault.An audit firm with an audit fraud or audit failure in an independent auditing shall determine that its conduct is in line with the conduct elements of the infringement.If a third party who has made commercial transactions or investment decisions based on trust and use of the audit report has failed to realize claims due to auditing inaccuracies and has suffered economic losses due to losses in securities transactions,it shall recognize that the loss meets the elements of damage in the infringement.However,this damage only includes the losses caused by the “induced short” behavior caused by the audit misconduct,and should not include the “induced long” behavior,and the damage is a pure economic loss according to the civil law theory.When the false audit report has a causal relationship between the causality and the loss on the occurrence of the loss,it only meets the causation requirement in the infringement component,and the causation on the transaction is based on the plaintiff's burden of proof in different types of cases.There are different rigorous degrees,the burden of proof in securities transaction cases is lighter,and the burden of proof in the case of commercial transaction cases is heavier.But,according to Article 8 of Judicial Interpretation No.[2007] 12,if a tort that does not have a direct causal relationship meets its requirements,it shall also bear the tort liability.At last,the determination of faults in audit fraud is relatively simple and uncontroversial.When the audit fails,only the firm violates the industry standard of the relevant professional standards can be the ultimate infringement,otherwise the lack of fault does not constitute the firm's Infringement.The defendant who bears the tort liability shall act jointly by the audited entity and the accounting firm,and the two shall constitute joint infringement or competing infringement.However,in the case of commercial transactions,if there is a more typical type of capital infringement,the unrealized shareholders may become one of the defendants of the joint infringement act,and the order of responsibility is after the audited entity and before the accounting firm.In this type of tort liability,the accounting firm generally assumes an alternative responsibility for the CPA,and sometimes it may also be the firm's own responsibility.The firm,based on the fact that it constitutes a joint infringement or a competing infringement with the audited entity,undertakes joint and several liability or has a maximum limit of supplementary responsibilities.Judicial Interpretation No.[2007] 12 and afterwards clarify that the right of infringement of such infringement cases must be equally protected.Investors should not be required have to rely on administrative punishment decisions or court's criminal judgment before they can file a civil lawsuit.When such infringing activities compete with the breach of contract,the two lawsuits should be ordinary,not necessary,common lawsuits because of the different subject matter of the lawsuit.Therefore,in order to ensure that the dispute can be completely resolved in the same instance.The plaintiff should prepare evidence to prove that the defendant is unable to repay and carefully choose the jurisdiction of the court to ensure that all defendants are subject to its jurisdiction.