외부감사인의 민사책임에 관한 해외 법제 및 판례의 동향 - 미국과 영국의 시사점을 중심으로 -

External auditors play a crucial role in preventing illegal acts such as fraudulent accounting by audited companies. The scope of their civil liability and the allocation of the burden of proof require a balance between investor protection and the professional independence of external auditors. However, despite the inherently passive and ex post nature of an external auditor's position and authority, the current External Audit Act shifts the burden of proof regarding the absence of negligence in liability for damages to the external auditor. In contrast, in the United States, while the burden of proof for damages, negligence, and causation generally rests with the plaintiff, in specific areas such as Section 11 of the 1933 Securities Act, the burden of proof regarding ‘due diligence’ shifts to the auditor. Furthermore, a dual structure exists under the 1934 Securities Exchange Act and Rule 10b-5, where auditor liability is limited through the requirement of intent and the enhanced burden of proof under the PSLRA. The UK also operates under a common law system of negligence liability. Following the Caparo decision, it strictly limits auditors' duty of care toward third parties while permitting contractual risk allocation with companies through liability limitation agreements (LLAs). Compared to the legal systems of major overseas countries like the US and UK, the civil liability of external auditors under Korea's current External Audit Act appears relatively burdensome. Therefore, the civil liability of external auditors under Korea's External Audit Act requires improvement based on its legal nature and function. Specifically, Article 31 of the External Audit Act should explicitly recognize the validity of liability limitation agreements (LLAs) concerning an auditor's liability to a company, allowing the scope of liability to be contractually stipulated in advance unless the auditor acted with intent or gross negligence. Furthermore, regarding liability towards third parties, it is proposed that the system be improved to shift the burden of proof for intent or negligence to the victim's side, in line with the principle of tort liability. In conclusion, amendments to the current Article 31, Paragraphs 1 and 2 of the External Audit Act are necessary concerning liability for damages and the related burden of proof. The key points of this amendment are: ① For liability for damages to the company, which has the nature of contractual liability, recognize special agreements between the parties, allowing for different provisions regarding damages in the engagement contract under Paragraph 1; ② For liability for damages to third parties, which has the nature of tort liability, specify in Paragraph 2 that intent or negligence is a requirement for liability as grounds for attribution, thereby requiring the victim to prove this; ③ As an exception to the auditor bearing the burden of proof, financial investment firms are added instead of comprehensive financial companies under current law. This restructuring is expected to restore the balance between investor protection and the auditor's liability burden while enhancing international consistency.