For example, in an investment dispute case, an investor invested in a project because he believed in a false audit report issued by an accounting firm submitted by a partner, resulting in huge losses and requiring the accounting firm to bear responsibility. The author believes that accounting firms, as third-party intermediaries that provide professional services to others, and CPAs, as professional service personnel, should be diligent and responsible in their work, so as to effectively prevent their own occupational risks and provide customers with high-quality and efficient services. , to avoid losses to customers, thereby promoting the orderly and healthy development of social transactions. From the perspective of accounting firms bearing civil tort liability for losses caused by business activities, and on the basis of sorting out the current status of civil tort liability of accounting firms in my country, this article analyzes several problems existing in the civil tort liability of accounting firms. and put forward suggestions for improving the current situation.
1. The current situation of civil tort liability of accounting firms in my country
(1) Relevant regulations
At present, my country has strict regulations on accounting firms’ liability for civil torts due to their business activities. The provisions on civil tort liability for losses are mainly concentrated in the following laws, judicial interpretations and other normative documents.
1. Certified Public Accountants Law of the People's Republic of China
Article 42 of the Certified Public Accountants Law of the People's Republic of China (hereinafter referred to as the "CPA Law") stipulates: "Accounting firms Anyone who violates the provisions of this Law and causes losses to the client and other interested parties shall be liable for compensation in accordance with the law. "Articles 18 and 19 of the "CPA Law" stipulate the avoidance and confidentiality obligations of certified public accountants, and Articles 20 to 19 of the CPA Law. Article 22 regulates the professional behavior of certified public accountants and stipulates in detail the circumstances under which certified public accountants should refuse to issue reports and the behaviors that they are not allowed to engage in. At the same time, Articles 31 and 32 clarify the provisions in Articles 18 to 22 applicable to accounting firms.
2. Tort Liability Law of the People’s Republic of China
Article 2 of the Tort Liability Law of the People’s Republic of China (hereinafter referred to as the Tort Liability Law) clearly stipulates that those who infringe upon civil rights and interests shall be held liable Tort Liability also stipulates the types of civil rights and interests; Article 3 also clarifies that “the infringed party has the right to request the infringer to bear tort liability.” In addition, Article 15 of the Tort Liability Law stipulates the main ways to bear tort liability. , including compensation for losses.
3. "Several Provisions of the Supreme People's Court on the Trial of Cases Involving Civil Infringement Compensation in the Auditing Business Activities of Accounting Firms"
"The Supreme People's Court's Provisions on the Trial of Accounting Firms Engaged in Auditing Activities" "Provisions on Compensation for Civil Torts" (hereinafter referred to as "Provisions on Compensation for Compensation for Accounting Firms") stipulates in detail matters concerning the liability of accounting firms for civil tort compensation when engaging in auditing activities. The first article stipulates: "Stakes If a person files a civil infringement compensation lawsuit with the People's Court on the grounds that an accounting firm issued a false report during the audit activities specified in Article 14 of the Certified Public Accountants Law, causing the person to suffer losses, the People's Court shall. Article 2 defines "interests and harms." Related Parties and False Reports.”
(Article 2 of the "Accounting Firm Infringement Compensation Regulations" stipulates: "A natural person, legal person or other organization reasonably relies on or uses a false report issued by an accounting firm to conduct transactions with the audited unit or engage in activities related to the stocks and bonds of the audited unit. Anyone who suffers losses as a result of his or her trading activities shall be identified as an interested party as stipulated in the Certified Public Accountants Law. "If there is an audit report with false records, the accounting firm violates laws and regulations. Misleading statements or major omissions made under the professional standards and rules implemented after approval and under the principles of honesty and fairness shall be deemed as false reports. “In addition, the “Accounting Firms’ Tort Compensation Regulations” apply a presumption of fault to the accounting firm’s liability for infringement compensation. Principle. In such litigation cases, the audited unit and the accounting firm should be the same defendant, and the accounting firm should bear joint and several liability based on intentionality or negligence.
4. The Supreme People's Court. Article 2 of the Reply on How Accounting Firms Should Be Responsible for Issuing False Capital Verification Certificates for Enterprises" stipulates: "Although there is no direct legal relationship between the accounting firm and the parties to the contract in this case, in view of its behavior of issuing false capital verification certificates, the damage is Therefore, in the case of civil liability, the debtor should be responsible for paying off the shortfall, and then the accounting firm should bear the compensation liability within the amount certified by it. ”
(2) Related cases
1. Yang Moumou v. Changchun Xiangyun Branch of Agricultural Bank of China Co., Ltd. and Jilin Boda Oriental Accounting Firm
Case introduction: In the plaintiff Yang Moumou v. Changchun. In the case of Yonghe Real Estate Development Co., Ltd. (hereinafter referred to as "Yonghe Company"), the Jilin High Court ruled that Yonghe Company should repay the principal and interest of Yang's loan. Later, because Yonghe Company failed to fulfill the judgment, Yang applied to the court for enforcement. , the Changchun Intermediate People's Court found that Yonghe Company had been cancelled, the whereabouts of the company's two shareholders were unknown, and the three persons subject to execution were incapable of execution. It was also found that on May 22, 2001, the shareholders of Yonghe Company went to Changchun Xiangyun Branch of the Agricultural Bank of China (Agricultural Bank of China). (hereinafter referred to as Xiangyun Branch) registered the company with a registered capital of 800,000 yuan, and on the same day Jilin Boda Oriental Accounting Firm (hereinafter referred to as Boda Accounting Firm) issued a capital verification report with a registered capital of 8 million yuan to Yonghe Company. Therefore, In 2013, Yang sued the court of first instance on the grounds that Xiangyun Sub-branch and Boda Accounting Firm were at fault in providing him with false capital verification materials when Yonghe Company was established, requiring Xiangyun Sub-branch and Boda Accounting Firm to jointly compensate for principal, interest and other expenses. Related expenses.
The court of first instance found that the registered capital of Yonghe Company was 800,000 yuan when it was established, and the capital verification report issued by Boda Accounting Firm was 8 million yuan, which was inconsistent with the actual situation and was false. report. In addition, during the trial, the court verified the authenticity of the bank inquiry letter in the archives of Boda Accounting Firm and found that the numbers in the inquiry letter were not original handwriting, but altered handwriting. As a result, the court found that the accounting firm failed to fulfill its legal obligations, failed to carefully review the capital verification report, and issued a false capital verification report, resulting in the registered capital of Yonghe Company being 8 million yuan. In addition, the court held that Xiangyun Branch should not be held responsible because the existing evidence could not prove that Xiangyun Branch was at fault in providing the registered capital deposit slip and bank confirmation letter. Therefore, the court ruled that Boda Accounting Firm should compensate Yang within 8 million yuan for the principal of the loan, interest, late payment fees, original litigation fees and other expenses. Hou Yang was dissatisfied with the first-instance judgment and appealed, demanding that Xiangyun Branch and Boda Accounting Firm bear joint and several liability for compensation.
The Changchun Intermediate People's Court held that Boda Accounting Firm conducted a capital verification report on Yonghe Company with a registered capital of 8 million yuan based on the altered copy of the cash deposit slip and the bank confirmation letter. The accounting firm failed to carefully examine the authenticity of the cash deposit receipt and bank confirmation letter, nor the true capital contribution of the company's shareholders. It failed to fulfill its statutory review obligations and issued a false capital verification report. Boda Accounting Firm shall bear civil liability for compensation within the scope of the false verification amount issued by it. However, the second instance found that Xiangyun Branch was at fault and should be liable for compensation.
In addition, the court of second instance determined the scope of responsibility of Boda Accounting Firm and Xiangyun Branch, which was different from the court of first instance. Therefore, after the second-instance judgment ordered that Boda Accounting Firm and Xiangyun Branch enforce Yonghe Company and its shareholders in accordance with the law, the part that Yang could not repay would be jointly and severally liable to Yang within the scope of the 8 million yuan of false evidence issued. Xiangyun Branch refused to accept the second instance verdict and applied to Jilin High Court for a retrial.
After reexamination, the Jilin High Court held that the two cash deposit slips filed in the accounting firm’s capital verification report file were both altered copies, and the bank confirmation letter in the accounting firm’s file materials was also altered. The trial found that the accounting firm had a statutory obligation to verify the deposit certificate, but failed to fulfill its obligation to carefully examine it. If you check carefully, you should find that the deposit amount recorded in the deposit certificate is inconsistent with the confirmation letter, so as to avoid issuing an inaccurate capital verification report. The above facts are sufficient to determine that the accounting firm failed to fulfill its legal obligations and issued a false capital verification report without carefully reviewing the capital verification report, which resulted in the illegal consequences of the establishment of Yonghe Company. Therefore, it should bear civil liability for compensation within the scope of the false capital verification amount according to law. On whether Xiangyun Branch bears responsibility. The retrial court held that because the existing evidence could not prove that Xiangyun Branch was at fault, Yang should bear the adverse consequences of being unable to provide evidence. Therefore, in 2014, the Jilin High Court upheld the second-instance court’s finding that Boda Accounting Firm should bear liability for compensation, and revoked the judgment that Xiangyun Branch should bear joint and several liability.
2. Ji Boyi (Beijing) Investment Co., Ltd. v. Hunan Licheng Co., Ltd., Walkerson (Beijing) International Asset Appraisal Co., Ltd., Huatian Industrial Holding Group Co., Ltd., and Chengzhong International Industrial Co., Ltd.
Case introduction: In 2010, Huatian Industrial Holding Group Co., Ltd. (hereinafter referred to as "Huatian Company") and Chengzhong International Industrial Co., Ltd. (hereinafter referred to as "Chengzhong Company") planned to transfer their respective holdings of Hunan Huatian Aluminum Co., Ltd. (hereinafter referred to as "Huatian Aluminum Company") 60.87 shares. Huatian Aluminum entrusted Hunan Mileage Co., Ltd. (hereinafter referred to as Mileage Firm) and Walkerson (Beijing) International Asset Appraisal Co., Ltd. (hereinafter referred to as Walkerson Company) to conduct an audit evaluation of the assets of Huatian Aluminum. The audit evaluation base date It is 2065438 on August 31, 2010. From 2010 to December, Jibo Yi (Beijing) Investment Co., Ltd. (hereinafter referred to as "Jibo Yi Company") won 60.87 shares of Huatian Aluminum Company through online bidding. After Jiboyi Company acquired the aforementioned equity, it entrusted Hunan Hengxin Zhenghong Accounting Firm (hereinafter referred to as "Hengxin Firm") to audit the relevant assets of Huatian Aluminum Company as of August 31, 2065438. The audit results were consistent with those of Miller Firm. different. In June 2013, Jibo No. 1 Company sued Huatian Company and Chengzhong Company to the court on the grounds that there were major misunderstandings and unfairness in the equity transfer, demanding that the price of the equity transfer contract be adjusted and the equity transfer money returned. After the first and second instances of Hunan High Court, the case was dismissed by Jibo No.1 Company. At the same time, the Hunan Provincial Higher People's Court held that after the completion of the equity transfer transaction, Jibo Company unilaterally entrusted Hengxin Firm to make an audit report, but did not submit other evidence to support it. Therefore, this audit report alone is not enough to negate the authenticity and legality of Mileage Firm’s audit report and Walkerson Company’s evaluation report.
2065438 In June 2004, Jibo One Company sued Milestone Firm, Walkerson Company, Huatian Company, and Chengzhong Company to the court on the grounds of tort liability disputes, demanding that the defendants jointly compensate Jibo One Company. The company lost 1386494773 yuan. After trial, the court of first instance held that Jibo No. 1 Company relied on the audit report issued by Hengxin Firm unilaterally entrusted by Jibo Company to determine that the audit report of Milestone Firm and the evaluation report of Walkerson Company were false reports, which lacked sufficient basis. Jiboyi Company has no evidence to prove that Milestone Company and Walkerson Company have violated laws and regulations, the practice standards and rules formulated by the Chinese Institute of Certified Public Accountants in accordance with the law and implemented with the approval of the financial department of the State Council, and the principles of good faith and fairness, and issued false records and misleading statements. or major omissions in the audit report, as well as violations of relevant laws and regulations.
Therefore, the audit report of Hengxin Company alone is not enough to deny the authenticity and legality of the audit report of Milestone Company and the assessment report of Walkerson Company. As a result, the judgment dismissed Ji Boyi's lawsuit. Jibo No. 1 Company was dissatisfied with the first-instance judgment and appealed to the Hunan High Court.
The Hunan Provincial Higher People’s Court held after trial that Jibo No. 1 Company did not provide evidence to prove that Milestone Company and Walkerson Company violated laws, regulations, professional standards and the principles of good faith and fairness during the audit process, and that Jibo No. 1 Company In the case of the company suing Huatian Company and Chengzhong Company, it was determined that Jibo Company unilaterally entrusted Hengxin Company to make an audit report after the completion of the equity transfer because it did not submit other evidence to support it. It was not enough to negate the authenticity and legality of Mileage Firm's audit report and Walkerson Company's evaluation report, so it was decided to reject its lawsuit. Therefore, there is no infringement in this case. There is insufficient basis for Geboy Company to claim that Mileage Firm's audit report and Walkerson Company's assessment report are false reports. In addition, Geboy Company did not raise any objections to the bidding procedures, Mileage Firm audit report, and Walkerson Company evaluation report during the bidding, signing, and handover stages. There is no evidence to prove that the above report contains false records, misleading statements or major omissions, and there is no evidence to prove that Huatian Company, Chengzhong Company, Milestone Firm, Walkerson Company and their relevant certified public accountants bear joint and several liability. Therefore, Jiboy Company's claim that Huatian Company, Chengzhong Company, Milestone Firm, and Walkerson Company were at fault lacks factual basis. Therefore, the Hunan High Court rejected the appeal in 2016 and upheld the original verdict.
2. Several issues regarding accounting firms’ liability for civil torts.
(1) The premise for an accounting firm to bear liability for civil infringement compensation is that it should meet the corresponding constituent elements, that is, the tort; causing losses to others; and there is a causal relationship between the losses of others and the tort; The accounting firm was wrong.
In the aforementioned case, the three-level courts unanimously agreed that Boda Accounting Firm should bear civil liability for compensation. It can be seen from the court judgment that when the court determined that Boda Accounting Firm was liable for compensation, the court mainly judged the following situations: Boda Accounting Firm issued a false capital verification report, which constituted an infringement; Boda Accounting Firm failed to conscientiously Audit errors; the false capital verification report issued by Boda Accounting Firm led to the illegal consequences of the establishment of Yonghe Company. In the second case, because the plaintiff Geboy Company could not provide evidence to prove that the evaluation reports of Mileage Company and Walkerson Company were false reports, and there was no evidence to prove that Geboy Company and Walkerson Company violated laws, regulations, professional standards and the principles of good faith and fairness, The court of second instance found that there was no infringement and therefore failed to support Geboy Company’s claim.
(2) The liability for infringement compensation shall only be borne by the accounting firm.
Because CPAs are appointed by accounting firms to carry out auditing activities and perform their duties. In a case in which a certified public accountant violates relevant regulations by issuing a false report and causing losses, although the direct perpetrator of the infringement is the certified public accountant, the liability for civil infringement is only the accounting firm.
(3) Because the infringer and the specific infringement act are different, the applicable laws are also different.
It can be seen from the provisions of the "CPA Law" that interested parties such as clients may become infringers, and the "Accounting Firm Tort Compensation Regulations" stipulates that only interested persons have the qualifications to be the plaintiff's litigation subject. Therefore, if a client files a civil infringement lawsuit against an accounting firm, it is necessary to analyze the client's position based on the specific circumstances to determine whether the accounting firm's infringement compensation provisions can be applied. In addition, if an accounting firm issues a false capital verification report and causes losses to others, the court usually applies the normative document "Reply of the Supreme People's Court on How Accounting Firms Should Bear Responsibility for Issuing False Capital Verification Certificates for Enterprises." In the aforementioned case 1, the court applied the "Reply of the Supreme People's Court on How Accounting Firms Should Be Responsible for Issuing False Capital Verification Certificates for Enterprises". In Case 2, the court applied the "Tort Liability Law" and "Accounting Firm Tort Compensation Regulations".
(4) The principles for determining fault vary with different infringement acts and different tortfeasors.
Article 4 of the "Infringement Compensation Regulations for Accounting Firms" stipulates: "If an accounting firm issues false reports during audit activities and causes losses to interested parties, it shall bear the liability unless it can prove that it is not at fault. Liability for tort compensation. "The author believes that according to this article, the principle of presumption of fault should be applied to civil tort compensation lawsuits filed by interested parties. However, the principle of presumption of fault should strictly pay attention to the conditions for its application. For example, the principle of presumption of fault (presumption of fault) and the principle of no-fault should be applied according to the specific circumstances, such as a civil tort compensation lawsuit filed by an uninterested party or a lawsuit filed by the infringed party against the accounting firm's infringement in non-auditing business activities. However, as can be seen from the aforementioned Case 2, current judicial practice does not clearly stipulate the application of the principle of presumption of fault to such cases. Case 2: The Hunan Provincial Higher People’s Court applied the Tort Liability Law and determined that this case was a general tort dispute and the principle of fault liability should be applied. In addition, even if the principle of presumption of fault is applied, it must be based on the plaintiff being able to provide preliminary evidence for his claim, otherwise he may not bear the consequences of losing the case due to insufficient evidence.
(5) Due to different torts, different forms of fault of the tortfeasors, and different tortfeasors, the forms of liability borne by accounting firms are also different.
If an accounting firm issues a false capital verification report and causes losses to others, it will usually be liable for supplementary compensation within the scope of its false capital contribution. In the audit business, if other false reporting infringements cause losses to interested parties, if the fault is intentional, the accounting firm will bear joint and several liability with the audited unit; if the fault is in the form of negligence, it shall bear supplementary compensation liability. In the above-mentioned case 1, Boda Accounting Firm shall bear supplementary liability for the losses caused by issuing false capital verification reports.
Third, suggestions for improving the current status of civil tort liability of accounting firms
From the analysis of my country's current relevant regulations and judicial practice, it can be seen that the relevant regulations still need to be improved. , in practice it is necessary to unify the applicable standards for such cases. In addition, accounting firms and certified public accountants also need to improve their professional practices so that accounting firms and certified public accountants can avoid causing losses to clients, effectively prevent their own practice risks, and avoid liability for compensation. The author believes that the current situation can be improved from the following aspects:
1. Improve relevant laws and regulations. The legislative body should sort out the existing relevant regulations and straighten out the relationship between the regulations and their application. For example, it is necessary to clarify the basis for the application of the law, whether the principle of presumption of fault is applicable when the client files a lawsuit for infringement compensation against an accounting firm, and the prerequisites for its application, so that the judicial authorities can try their best to follow the law when handling such cases.
2. Accurately apply relevant laws and regulations. When judicial organs hear such cases, they must strictly follow the existing relevant regulations, accurately apply the regulations according to the different facts of the case, try to apply unified standards to cases with the same facts, and avoid the situation of different judgments for the same case.
3. Improve internal systems and management. Accounting firms should develop sound management systems and work systems to standardize professional practices. Accounting firms should also regularly organize staff to learn relevant regulations to make staff deeply aware of the importance of their work.
4. Strictly abide by relevant regulations. Accounting firms and their staff shall strictly abide by the provisions of laws and regulations in their work and shall not engage in conduct that is expressly prohibited by laws and regulations. In addition, professional standards and rules, the principles of good faith and fairness, and the firm's relevant internal systems should be observed.
5. Certified public accountants should abide by professional ethics and professional disciplines in their work, strictly abide by professional ethics, and reject improper requests from clients. In addition, we should work seriously and diligently to avoid mistakes.
6. Certified public accountants must develop good working habits and completely and properly preserve working papers. Accounting firms must also properly preserve relevant documents to clarify responsibilities and prevent risks after disputes occur.