論會計師事務所證券虛假陳述的連帶責任

On the Joint Liability of Securities False Statements of Accounting Firms

會計師事務所因過失出具虛假財務報告構成共同侵權給投資者造成損失的應承擔連帶責任。在此情形下，司法實踐將會計師事務所承擔的連帶責任區分為完全連帶責任與比例連帶責任，創造出“比例連帶責任”這一新的責任形式，引發了學界的爭議。會計師事務所證券虛假陳述給投資者造成損失，無論是基於故意還是過失，均構成共同侵權，會計師事務所應承擔連帶賠償責任，將連帶責任區分為完全連帶責任與比例連帶責任，違反了我國《民法典》的侵權責任規則，也不符合我國《證券法》第173條的規定。比例連帶責任混淆了連帶責任的對內與對外效力，司法機構在適用該種責任時，很難合理地確立比例連帶責任中的“比例”現有裁判確立的具體比例標準不統一，具體比例與會計師事務所過錯的大小也不完全一致。司法解釋並沒有確立比例連帶責任規則，法院也不宜以司法解釋作為會計師事務所證券虛假陳述糾紛案的裁判依據，應以《民法典》和《證券法》作為裁判的法律依據。

The accounting firm's issuance of false financial reports due to negligence constitutes a joint infringement, which should bear joint and several liability for losses caused to investors. In judicial practice, the joint liability borne by the accounting firms is divided into full joint liability and proportional joint liability, thus creating a new form of liability called ''proportional joint liability'' and triggering controversy in the academic circle. The accounting firm's loss to investors due to false statements of securities, whether based on intentional or negligent, constitutes joint infringement. According to the provisions of Article 1168 and Article 178 of the Civil Code, accounting firms should bear joint liability for compensation, that is, accounting firms should bear tort liability for victims regardless of their share, and victims have the right to require accounting firms to bear full liability for compensation. The division of joint liability into full joint liability and proportional joint liability violates the tort liability rules of the Civil Code and does not conform to the provisions of Article 173 of the Securities Law. From the perspective of the legislative evolution of the Securities Law, there is no substantial change in the relevant rules of civil liability for false statements of accounting firms, and the form of liability is joint liability. Proportional joint liability confuses the internal and external effects of joint liability. The share of joint tort is the internal effect of joint liability. This internal effect shall not be against the investor's claim for compensation. The joint liability caused by joint tort is a statutory liability, which does not change the nature due to the joint actor 's internal liability share or internal agreement. It weakens the protection of investors' interests by reducing the responsibility of audit institutions, which is not in line with the basic purpose of China's securities legislation and the reality of China's securities market. The background of the introduction of proportional liability in the U. S. Private Securities Litigation Reform Act of 1995 is to prevent abusive lawsuits by investors, but there is no such background in our country. Frequent and serious financial fraud incidents have always been a prominent problem in China's securities market. One of the important reasons for the frequent occurrence of financial fraud is that the financial fraud of listed companies can obtain huge benefits and the illegal cost is too low. The main reason for the low cost is that the civil liability system of securities false statements in China is imperfect, and investors can not get effective relief for the losses caused by the financial fraud of listed companies. In this context, the judiciary reduces the civil liability of accounting firms through proportional joint liability, which is not conducive to the protection of the interests of investors in China's securities market. In addition, it is difficult for the judiciary to reasonably establish the ''proportion'' of proportional joint liability. The specific proportion standards established by the existing judicial decisions are not uniform, and the specific proportion is not completely consistent with the size of the accounting firm's fault. The existing judicial interpretation does not establish the rule of proportional joint liability, and the court should not use the judicial interpretation as the basis for the cases of accounting firms involving securities false statements, and they shall make judgments based on the Civil Code and the Securities Law. If the judiciary believes that the responsibility of accounting firms in securities false statements disputes is too heavy and unfair, the responsibility of accounting firms can be appropriately limited through the identification of causality and fault.