외부감사인의 비례책임제도

Abstract

This article discusses the selected issues related to the proportionate liability. Since the adoption of this liability rule in the Act on external Audit of Stock Companies (EASC) and the Financial Investment Services and the Capital Market Act (ISCM) in December 30th 2013, a new regime has begun by presenting specific rules on the liability of statutory auditors. It means a dramatic change of liability forms for statutory auditors from ‘joint & several liability’ to several liability only in exceptive cases. The EASC and the ISCM adopted the new liability regime in their relevant sections in that way:In principle auditors and the client company’s directors shall be as defendants jointly liable for damages to the company or a third party, but exceptionally if one of them violates unknowingly the Acts, then he/she shall be liable for damages according to the ratio of liability determined by a court based on the attributable causes. Notwithstanding the exceptive proportionate liability, if the recognized amount of income of the person is less than 150 million won, then the liability form shall go back to joint liability. Furthermore if the damages did not be paid due to incapability for compensation of any person, the others shall be liable for an additional amount of damages to 50% of their respective ratios of the liability. However we can not find out any compatibility or conformity with our civil liability system due to the heterogeneous regulatory factors. One of critic points lies in that the liability form in which defendants are liable jointly or severally shall depend on the level of income of defendants. In comparison it should be determined by the nature of malpractice(act in concert or not) or the agreement of the parties in our established liability regime. It is also hardly to accept on the other hand that after closing all the procedure of the trial, in case of incapability of someone, another establishment of liability for the additional compensation should be began to discuss. In this respect this paper suggests that the disconformable regulations be replaced by the establishment of pure several liability and that it is an appropriate time to legislate the liability limitation of the statutory auditors just as with EU countries.