기업(회사) 관련 소송에 관한 연구 －분식회계에 관한 것을 중심으로－

Abstract

The overstating account is that the asset-, profit-, capital-accounts are overestimated and the debt-, loss-accounts are underestimated. Its methods are overstating the sales and goods in store, overstating the current term’s net profit and understating or omitting the debt or loss, handling the accounting division, interrupting the outside auditing. The overstating account may cause the corporate lawsuits as prescribed in the Security-Related Procedure Act. I have focussed here on the indemnifying responsibility of the directors, auditors, the outside auditors and the bank’s derectors. They are responsible for the loss or damage of the Corporation and the third party even though there are the president’s or the owner’s order regarding the overstating. If they would make a plea of innocence that they did not decide the overstating of their own will, it could not be approved by the Court. When there are any directors taking charge of the account, the president himself cannot be exempted from the duty of supervising the corporate accounts. Whether there is a cause and effect’s relation between overstating account and the corporation’s loss is one of difficult questions to answer simply. The auditors are responsible for the corporation’s loss or damage when they have been negligent in carrying out their duties. And they are also responsible for the third party’s loss when they have been negligent in carrying out their duties intentionally or by serious mistakes. So if an auditor does not carry out any duty under the situation of lacking of the inner and outer controling system over accounting, he or she must be responsible for it. The outside auditors may be responsible for the damage of the corporation or the third party if they have not written the errors made by the corporation’s account- charging person. In the lawsuit about the outside auditors, the responsibility of giving the proof would be on the part of the outside auditors themselves, as most of the materials about the accounting would be within the auditors’ business area. The ‘Event Study’ as used frequently in the Economics or Business administrations in not decisive in deciding the cause-effect issue, as the points of view are not always the same between the law and the ‘Event Study’ approach. The negligence offsetting method in the lawsuit can be surely allowed in deciding the sum of the account-overstaters’ indemnification to the company and others who have been derectly damaged by the overstated accounts. The degree of the duty of care of the financing institutions’ (eg. banks’) director, manager, auditor and officer should be decided considering the quasi-public characteristic of them. In this issue, the second grade financing institutions are not quite different from the banks(the 1st grade financing institutions). Our Court have decided that the negative prescription of the directors’ and auditors’ indemnifying responsibility to the corporation and the third party is 10 years, which I agree with.