會計師於財報不實中之民事責任探討——以過失責任與比例責任為核心

Abstract

由於證券市場上之財報不實案件層出不窮，是為填補因財報不實所受之損害，除申報公告不實財報之發行人與其經營管理階層外，為不實財報辦理簽證並出具報告之會計師亦常成為投資人求償之對象。然而，過去對於會計師是否應就財報不實承擔責任之問題素有爭議，不過就此問題已因證券交易法（下稱證交法）增訂之第20條之1明文規定會計師為財報不實民事責任之責任主體而獲得解決，惟證交法第20條之1卻另外引發應令會計師就財報不實承擔多少責任之問題，同時亦衍生其他爭議，而相關爭議迄今仍未平息。據此，本文主要探討會計師之財報不實民事責任，並將聚焦於對比例責任制之檢討、會計師與其他被告及會計師事務所間之責任關係以及會計師之責任比例應如何認定等問題。 本文首先透過比較法之研究對我國比例責任制提出質疑，並建議得制定原告無法受償之份額之分擔制度。其後本文整理目前學說與實務就會計師與其他被告及會計師事務所間之責任關係之見解，分析其中於理論上不夠完備之處，並進一步提出本文以為或許得將比例責任制解釋為對負比例責任之人請求賠償數額之上限，令全部負比例責任之人與個別負全部責任之人就全部賠償範圍成立限制請求權數額之不真正連帶債務關係，如此之責任關係認定方式應較能圓滿解釋負比例責任之人與負全部責任之人間之責任關係。接著本文處理會計師就財報不實是否有應承擔之終局責任與終局責任範圍之問題。最後，本文藉由整理與分析目前實務就會計師責任比例認定所敘及之理由，提出一可資參考之會計師責任比例認定具體考量因素與標準，而本文以為其中尤以會計師對於財報不實之結果防免可能性、會計師辦理簽證之類型、會計師之行政責任以及會計師之刑事責任為所有實務於認定會計師之責任比例時均宜參酌之四項具體考量因素，並藉此提升會計師責任比例認定之說服力、客觀性與可預測性。

Given the prevalence of false financial reports in securities markets, investors who suffer losses attributable to such false financial reports have increasingly sought redress not only from issuers and their management who filed and disclosed the untrue financial reports, but also from accountants who audited and issued reports on those financial reports. Whether accountants should bear civil liability for false financial reports has long been a subject of controversy. And this question was resolved by the enactment of Article 20-1 of the Securities and Exchange Act (hereinafter, the “SEA”), which expressly designates accountants as liable parties in civil actions arising from false financial reports. Nevertheless, Article 20-1 of the SEA has in turn raised further disputes, most notably concerning the extent of liability that accountants should bear for false financial reports, as well as other related controversies that remain unresolved to this day. Accordingly, this thesis primarily examines the civil liability of accountants for false financial reports, with particular focus on three issues: the review of the proportionate liability system, the liability relationship between accountants and other responsible parties as well as accounting firms, and the standards for determining the accountants’ proportionate share of liability. First, through a comparative legal analysis, this thesis examines and questions current proportionate liability system under Taiwan law and proposes the establishment of a mechanism for allocating an uncollectible share of damages. This thesis then reviews existing academic and judicial views regarding the liability relationship between accountants and other responsible parties as well as accounting firms, analyzes the theoretical shortcomings of those views, and further proposes an interpretive framework under which proportionate liability may be construed as a cap on the amount of damages that may be claimed from a party subject to proportionate liability. Under this approach, all parties subject to proportionate liability and each party subject to liability for the entire amount of damages would be regarded as being in a relationship of Quasi-joint and several liability with respect to the full scope of damages, subject to limitations on the amount that may be claimed from a party subject to proportionate liability. Such an approach may provide a more satisfactory explanation of the liability relationship between parties subject to proportionate liability and those subject to liability for the entire amount of damages. Next, this thesis addresses whether an accountant should bear ultimate liability for false financial reports and, if so, the scope of such ultimate liability. Finally, by organizing and analyzing the reasoning articulated in existing judicial practice regarding the determination of an accountant’s proportionate share of liability, this thesis proposes specific factors and criteria that may serve as a reference for determining an accountant’s proportionate share of liability. In particular, this thesis argues that the following four specific factors should be considered in every judicial determination of an accountant’s proportionate share of liability: (1) the accountant’s ability to prevent the occurrence of false financial reports; (2) the type of audit engagement conducted by the accountant; (3) the accountant’s administrative liability; and (4) the accountant’s criminal liability. These four factors, if consistently taken into account, would enhance the persuasiveness, objectivity, and predictability of judicial determinations regarding an accountant’s proportionate share of liability for false financial reports.