감사인의 손해배상책임제한제도에 관한 연구

초록

This paper deals with the recent changes in audit environment and presents rational proposal for auditors' liability limitation. With regard to auditor's malpractice, there are two methods to reduce or limit auditor's legal liability -proportionate liability and/or liability capping. Under a proportionate liability framework, the liability of an auditor is limited to that proportion of the damages suffered by the related parties which is directly referable to auditor negligence. Proportionate liability has the merit of lessening auditor's excess liability and preventing abusive court actions. This system is recommended for auditor's third parties liability. As there is a direct contractual relationship between the auditor and the company, in this case, liability capping is desirable to limit auditor's excess liability. But there is no direct contractual relationship between the auditor and the third parties, in this case, liability capping is not the relevant solution.Contrary to the civil law which stipulates the plaintiff's proof responsibility of causal relationship, with regard to the auditor's liability, the proof responsibility of trade and/or loss causal relationship is converted to the defendant. In U.S., as the proof responsibility of the defendant as well as the joint liability was the main reason of abusive court actions, The Private Securities Litigation Reform Act of 1995 is enacted to solve the problem and the proof responsibility is converted to the plaintiff. Because security group action is not adapted from almost all of the countries except U.S. and Korea, conversion of the proof responsibility to the plaintiff is recommended to prevent abusive court actions.

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