외부감사인의 손해배상책임에 관한 비판적 검토 - 외부감사법 제31조를 대상으로 하여 -

The basis for seeking an external auditorʼs liabilities can be found not only in the external audit law but also in the Capital Markets Act and the Civil Act. As such, the legal system is overlapping over an external auditorʼs liabilities. Even if limited to the External Audit Act(hereinafter ʻthe Actʼ), an external auditor shall bear criminal liability and civil damage compensation, and shall be subject to administrative sanctions. In this paper, an external auditor's liability for damages under Article 31 of the Act was critically discussed. The summary of the results of the discussion is as follows. First, the Supreme Courtʼs decision assumes that all investors traded shares of the audited company by trusting the audit report prepared by the external auditors of the audited company. However, such assumption is not readily acceptable because it is contrary to the rule of thumb. Second, Article 31(4) of the Act recognizes the joint and several liability between the external auditor and the executives of the audited company in order to protect the third party thickly in the event that the external auditor is liable for damages intentionally against a third party. However, it is difficult to accept such the joint and several liability in that the act of the audited company's director to take preparatory accounting is distinct from and that of the external auditor to deliberately prepare the audit report poorly. Third, a proportional responsibility is recognized if damages occur without no intention of external auditors or executives of a audited company. However, in order to avoid joint and several responsibilities, they must prove that they were unintentional, but for small accounting firms or auditing groups, such proof can be difficult. Fourth, as there is a concern that third parties cannot be protected thickly due to the proportional liability under the Act, the Act has exceptions and forces external auditors to pay additional compensation for low-income investors. However, not only is the income scale a justification for reasonable discrimination, but it is not understandable that additional compensation is imposed only if there is a person in charge of proportional liability who is incapable of compensation. Fifth, according to the Act, if the ordinary investor is a plaintiff, he shifts the burden of proof of damages, while if the financial company is a plaintiff, he bears the burden of proof. However, it is questionable whether it is reasonable to assess that financial companies have more information than ordinary investors as well as excellent analysis capabilities. Sixth, the exclusion period of the external auditor's liability for damages is eight years. It is unusual to set the period for exclusion of a third party's right to claim damages to 8 years and it is inconsistent with other liability for damages borne by a certified public accountant.