회계감사인의 과실책임에 관한 비교법적 연구- 영국 회사법과 보통법을 중심으로 -

The auditor's responsibilities are likely to compete with those of the directors and auditors involved in the preparation of the financial statements of the company at issue. It is because the directors of the company at issue have incentives to commit illegal acts such as fraudulent accounting, while the auditor is tasked with deterring them. If the auditor intentionally or negligently fails to detect fraudulent accounting, the opposing actions of the two entities compete to the detriment of a third party, resulting in a joint and several liability. In general, the Korean civil law provides for joint and several liability in the case in order to protect victims heavily, as does the common law system. However, while joint and several liability has advantages in protecting victims, it can also lead to the unfairness among joint tortfeasors. In particular, it is not uncommon for an auditor who is negligent for a poor audit to compensate for the full amount of damages due to joint and several liability, even though he or she may have been less liable than the company at issue with a greater incentive to commit fraud. It is because companies are often weakened after the litigations of accounting fraud. There are several attempts to deal with the fairness issue, including proportionate liability, which has been adopted in Australia, the European Union, some states in the US, and Korea. Proportionate liability is a principle that seeks to protect the auditors by holding them severally liable, rather than jointly and severally, who are negligent in failing to amount to a perfect auditing. However, as the proportionate liability has its very nature of a split liability, it can still have negative effects, such as weakening victim protection and undermining audit quality. Because of these concerns, the UK has not adopted proportionate liability, but instead attempts to mitigate joint and several liability through the provisions of Company Act based on contractual relationships and general principles of Common law of torts such as limiting the scope of duty of care, which has been introduced in Caparo test etc. Both systems have their own advantages and disadvantages, and it will be up to each country's policy to decide which system to be pursed. However, in the position of a country with the proportionate liability, it is also worth considering how to limit the scope of protected third parties as a way to prevent the flood of litigations which is the main concerns of capital market regulators.