Study On Joint And Several Liability Of Accounting Firms For Securities Misrepresentation

In recent years,the verdicts on securities misrepresentation dispute cases always attract wide attention and discussion,and also have a far-reaching impact on securities intermediary service institutions,causing certain impact.China’s Securities Law and judicial interpretations and other relevant legal norms are each formed into a system,with different provisions on the form of liability for accountants’ misrepresentation and differences in the distinction between the forms of accountants’ fault,leaving a lot of room for judges’ discretion,which makes judges’ reasoning inadequate and provisions improperly quoted when applying relevant laws to make judgments,resulting in differences in judicial decision results.Analyzing the judicial decisions of misrepresentation disputes in China in recent years,the identification of the accountant’s liability is divided into two types of joint and several liability and proportional joint and several liability,and the reason for the difference lies in whether to distinguish the accountant’s intention and negligence,as well as the different interpretation of the connotation of joint and several liability.Even applying the same legal provisions,the judges’ different interpretations of the legal provisions have produced two very different consequences of liability,which shows the importance of regulating legal terms,clarifying the conditions of legal application and the connotation of legal provisions.In this article,through the securities misrepresentation tort accountants related to legal norms to sort out,analysis to explore the improvement of the relevant legal norms,in order to produce a certain reference to China’s judicial practice.The article contains 3 main parts.The first part through the securities misrepresentation tort dispute legal norms system to sort out,systematic analysis of the laws and purposes of the legislative evolution,put forward the contradictions between China’s Securities Law and judicial interpretation and other legal norms,in order to more reasonable and accurate articulation of the correspondence between the law and judicial interpretation of the form of fault and the form of responsibility.The second part is to elaborate and analyze the classical cases on accountants’ misrepresentation tort in China,and analyze the recognition and application of legal norms and the scope of accountants’ liability in judicial decisions,in conjunction with the application of law and reasoning in legal judgments,leading to the following issues related to the definition of accountants’ joint and several liability,and to conduct research and analysis on them.The third part is to analyze and classify accountants’ torts by applying the theory of tort law,advocating that the principle of presumption of fault is still applicable,and classifying accountants’ involvement in misrepresentation by applying the theory of subjective and objective joint tort,which is mainly divided into intentional,gross negligence and general negligence,and combining with Articles 1171 and 1172 of the Civil Code to study the legal application of accountants’ joint and several liability In order to achieve the self-consistent jurisprudence of the proportional joint and several liability of accountants in case of negligence tort.To clarify the characteristics of the accountant’s audit work,in order to achieve reasonable regulation of the accountant’s liability,distinguish between audit liability and accounting liability,and avoid increasing the accountant’s liability and practice risk.Defining the state of negligence of accountants as a way to determine the scope of liability.The distinction of the degree of negligence needs to be analyzed in conjunction with the accountant’s duty of diligence and the requirement of prudence in practice.Finally,the scope of the accountant’s joint and several liability is defined according to the degree of causation and causative power,i.e.the consideration of proportion in proportional joint and several liability.In addition,the influence of the scope of duty theory on the judgment of fault and reliance elements in the liability for negligent misrepresentation is also considered comprehensively to make up for the inadequacy of the theory related to causation and causation.Most of the studies on the joint and several liability of intermediary service agencies or accountants are analyzed and discussed from the perspective of legislative purpose and "gatekeeper" function,but few of them seek the legal basis for the division of joint and several liability of accountants from the perspective of tort law in order to achieve the purpose of limiting the application of joint and several liability.The application of proportional joint and several liability will also be the main trend in the future resolution of securities misrepresentation disputes.Improving the configuration of accountants’ legal liability is also an inevitable requirement to promote the ecological balance of the capital market and the coordinated development of the capital market.