외감법상 외부감사인의 책임에 관한 비판적 검토

Abstract

An auditor may, at any time, inspect or copy the accounting books and documents of a company and a company which has such relations as determined by Presidential Decree with the former, such as possessing its stocks in certain ratio or more (hereinafter referred to as a “related company”), or request them to submit data on accounting, and may investigate their affairs and financial status if especially necessary for performing his/her duties(§6(1)) under the Act on External Audit of Stock Companies(hereinafter “EASC”). An auditor shall prepare an audit report stating the result of auditing, the audit report shall contain the scope of audit, audit opinions, and information useful for a reasonable decision-making of the interested person(§7-2). An auditor shall file an audit report with the company concerned (including the statutory auditor, or the audit committee), the Securities and Futures Commission and the Korean Institute of Certified Public Accountants within the period prescribed by Presidential Decree(§8(1)). Under the EASC, if an auditor causes damage to a company due to negligence in the performance of his/her duties, such auditor shall be liable for damage incurred by the company. In such cases, if such auditor is an audit team, certified public accountants who have participated in the said audit on such company shall be jointly liable for such damage(§17(1)). If an auditor who fails to record important matters or makes a false statement in an audit report causes any damage to a third party who trusts and utilizes it, such auditor shall be liable for damage of such third party(§17(2)). In cases where an auditor is liable for damage to a company or a third person, and a director or the statutory auditor of the company (referring to a member of the audit committee, if such committee has been established; hereinafter the same shall apply in this paragraph) is also liable for the damage, such auditor, director and statutory auditor of the company shall be jointly liable for such damage(§17(4)). In 2013, the EASC has 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 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. In this paper, thus, I have investigated the legal and practical problems of provisions relating to proportionate liability of external auditors concerning the audit reports, and suggested the settlement methods of these problems of proportionate liability of external auditors under the EASC in comparison with the SEA and the Private Securities Litigation Reform Act of 1995 in U.S.A.