회계감사인의 비례책임제도의 쟁점과 바람직한 운용방안 - 개정 외감법에 대한 비판적 고찰과 개선과제를 중심으로 -

The Korean Act on the External Audit of Stock Corporation(hereinafter “EASC”) and the Korean Financial Investment Services and the Capital Market Act(hereinafter “FISCM”) have recently enacted the proportionate liability of auditors concerning the audit reports. Under the old regime, a joint and several liability, a single defendant who has been found to be 1% liable may be forced to pay 100% of the damages. The underlying rationale of a joint and several liability was a fraud or illegal securities act would fail if one of the participants reveals its existence and then all wrongdoers should be held equally culpable. The effect of this joint and several liability is, in certain cases, that auditors who had only peripheral involvement in the alleged wrongdoing are forced to compensate all damages. Considering this threat of such liability auditors face with, it is desirable to enact the new proportionate liability regime. In the new EASC, however, there are several legislative errors to be corrected. This paper deals with these deficiencies as follows. Under the section 17(4) of EASC, proportionate liability seems to apply to the directors and supervisory directors of the audited stock corporation. Since the initial intent of the legislation is that it applies only to the auditors, the provision has to be revised so that it is in line with the purpose of the current proportionate liability system. The section 17(4) of EASC provides that full joint and liability shall be imposed only on persons found to have “knowingly” violated the EASC, and defendants found to have acted “gross negligently” will be liable to damages(proportionate liability). But this is not in line with other Korean provisions under which all wrongdoers should be liable jointly and severally. The section 17(5) contains one exception of the proportionate liability of non-knowing violators. If the worth of the plaintiff is less than 150 Million Korean Won, then proportionate liable defendants are jointly and severally liable to plaintiffs’ damages without any limit. This exception has potential danger to efface the rule’s effect. Therefore, it should be revised. The section 17(6) provides if any proportionate liable defendant cannot make up liability, then the other proportionately liable defendants become additionally liable to uncompensated damages in proportion to their own percentage of responsibility, but not to exceed 50% percent of original proportionate liability. This additional liability could increase the recovery of the plaintiffs, but has potential danger against the rule as well.