Several Provisions on the Trial of Cases Involving Civil Tort Compensation in Connection with Audit Activities by Accounting Firms
关于审理涉及会计师事务所在审计业务活动中民事侵权赔偿案件的若干规定
The Rules, tightening tort liability for accounting firms in conducting audits, are a crucial step towards preventing accounting firms from liability evasion in civil tort cases and building investors' confidence.
(Promulgated by the Supreme People's Court on June 11 2007 and effective as of June 15 2007.)
SPC Interpretation [2007] No.12
(最高人民法院于二零零七年六月十一日公布,自二零零七年六月十五日起施行。)
法释 [2007] 12号
These Provisions have been formulated pursuant to laws such as the PRC General Principles for Civil Law, PRC Certified Public Accountants Law,PRC Company Law and PRC Securities Law and in the light of experiences in previous trials in order to properly try cases involving civil tort compensation in connection with audit activities by accounting firms and to safeguard the public interest and the lawful rights and interests of concerned parties.
为正确审理涉及会计师事务所在审计业务活动中民事侵权赔偿案件,维护社会公共利益和相关当事人的合法权益,根据《中华人民共和国民法通则》、《中华人民共和国注册会计师法》、《中华人民共和国公司法》、《中华人民共和国证券法》等法律,结合审判实践,制定本规定。
Article 1: If a materially interested party institutes a civil tort compensation action in a people's court on the grounds that an accounting firm issued an untruthful report in the course of carrying out any of the audit activities specified in Article 14 of the Certified Public Accountant Law, thereby causing it to incur a loss, the people's court shall accept such case in accordance with the law.
第一条利害关系人以会计师事务所在从事注册会计师法第十四条规定的审计业务活动中出具不实报告并致其遭受损失为由,向人民法院提起民事侵权赔偿诉讼的,人民法院应当依法受理。
Article 2: A natural person, legal person or other organization that incurred a loss in a transaction with the audited work unit or in carrying out trading activities relating to the shares, bonds, etc., of the audited work unit as a result of reasonably relying on or using a untruthful report issued by an accounting firm shall be deemed a materially interested party as specified in the Certified Public Accountant Law.
第二条因合理信赖或者使用会计师事务所出具的不实报告,与被审计单位进行交易或者从事与被审计单位的股票、债券等有关的交易活动而遭受损失的自然人、法人或者其它组织,应认定为注册会计师法规定的利害关系人。
If an accounting firm violates laws, regulations, or the practice standards or rules implemented by the Chinese Institute of Certified Public Accountants after formulation by the institute in accordance with the law and approval by the State Council's finance department or the principles of honesty, credibility and impartiality by issuing an audit report that contains false records, misleading statements or material omissions, such report shall be deemed an untruthful report.
会计师事务所违反法律法规、中国注册会计师协会依法拟定并经国务院财政部门批准后施行的执业准则和规则以及诚信公允的原则,出具的具有虚假记载、误导性陈述或者重大遗漏的审计业务报告,应认定为不实报告。
Article 3: If a materially interested party does not institute a legal action against the audited work unit but directly institutes a legal action against the accounting firm, the people's court shall inform it to institute a legal action jointly against the accounting firm and the audited work unit. If the materially interested party refuses to institute a legal action against the audited work unit, the people's court shall notify the audited work unit that it shall be a co-defendant in the legal action.
第三条利害关系人未对被审计单位提起诉讼而直接对会计师事务所提起诉讼的,人民法院应当告知其对会计师事务所和被审计单位一并提起诉讼;利害关系人拒不起诉被审计单位的,人民法院应当通知被审计单位作为共同被告参加诉讼。
If a materially interested party institutes a legal action against a branch or sub-branch of an accounting firm, the people's court may name the accounting firm as a co-defendant in the legal action.
利害关系人对会计师事务所的分支机构提起诉讼的,人民法院可以将该会计师事务所列为共同被告参加诉讼。
If the materially interested party accuses an investor of the audited work unit of making a false or untruthful capital contribution or illegally withdrawing its capital contribution and later failing to make up the shortfall, the people's court may name such investor as a third party in the legal action.
利害关系人提出被审计单位的出资人虚假出资或者出资不实、抽逃出资,且事后未补足的,人民法院可以将该出资人列为第三人参加诉讼。
Article 4: If an accounting firm causes a materially interested party to incur a loss due to the fact that, in the course of the audit activities, it issued a publicly available untruthful report, it shall be liable for tort compensation, unless it is able to substantiate that it was not at fault.
第四条会计师事务所因在审计业务活动中对外出具不实报告给利害关系人造成损失的,应当承担侵权赔偿责任,但其能够证明自己没有过错的除外。
In substantiating that it was not at fault, the accounting firm may submit to the people's court the relevant practice standards, rules and its audit working drafts, etc.
会计师事务所在证明自己没有过错时,可以向人民法院提交与该案件相关的执业准则、规则以及审计工作底稿等。
Article 5: If a certified public accountant is characterized by any of the circumstances set forth below in the course of audit activities and issues an untruthful report, thereby causing a materially interested party to incur a loss, the accounting firm and the audited work unit shall be deemed to be jointly and severally liable:
第五条注册会计师在审计业务活动中存在下列情形之一,出具不实报告并给利害关系人造成损失的,应当认定会计师事务所与被审计单位承担连带赔偿责任:
(1) he/she maliciously colluded with the audited work unit;
(一) 与被审计单位恶意串通;
(2) he/she was well aware that the accounting treatment of material events by the audited work unit conflicted with relevant state provisions but failed to indicate the same;
(二) 明知被审计单位对重要事项的财务会计处理与国家有关规定相抵触,而不予指明;
(3) he/she was well aware that the accounting treatment by the audited work unit would directly harm the interests of the materially interested party, but concealed the same or reported the same untruthfully;
(三) 明知被审计单位的财务会计处理会直接损害利害关系人的利益,而予以隐瞒或者作不实报告;
(4) he/she was well aware that the accounting treatment by the audited work unit would lead to a material misunderstanding by the materially interested party, but failed to indicate the same;
(四) 明知被审计单位的财务会计处理会导致利害关系人产生重大误解,而不予指明;
(5) he/she was well aware that the accounting statements of the audited work unit contained untruthful content concerning material events, but failed to indicate the same; or
(五) 明知被审计单位的会计报表的重要事项有不实的内容,而不予指明;
(6) he/she was instructed by the audited work unit to prepare an untruthful report, and did not refuse to do so.
(六) 被审计单位示意其作不实报告,而不予拒绝。
If the audited work unit committed any of the acts set forth in Items (2) to (5) of the preceding paragraph and the certified public accountant ought, in accordance with practice standards and rules, to have been aware thereof, the people's court shall deem him/her to have been well aware thereof.
对被审计单位有前款第(二)至(五)项所列行为,注册会计师按照执业准则、规则应当知道的,人民法院应认定其明知。
Article 6: If an accounting firm, in the course of audit activities, issues an untruthful report due to negligence, thereby causing a materially interested party to incur a loss, the people's court shall determine its liability for compensation based on the degree of its negligence.
第六条会计师事务所在审计业务活动中因过失出具不实报告,并给利害关系人造成损失的,人民法院应当根据其过失大小确定其赔偿责任。
If a certified public accountant fails to act with the necessary professional prudence in the course of an audit and is characterized by any of the circumstances set forth below, thereby causing his/her report to be untruthful, the people's court shall deem the accounting firm to be negligent:
注册会计师在审计过程中未保持必要的职业谨慎,存在下列情形之一,并导致报告不实的,人民法院应当认定会计师事务所存在过失:
(1) he/she violated Item (2) or (3) of Article 20 of the Certified Public Accountant Law;
(一) 违反注册会计师法第二十条第(二)、(三)项的规定;
(2) the certified public accountant in charge of the audit practised at a professional level lower than that which ordinary members of the profession are required to practise;
(二) 负责审计的注册会计师以低于行业一般成员应具备的专业水准执业;
(3) the audit plan that he/she prepared contained obvious oversights;
(三) 制定的审计计划存在明显疏漏;
(4) he/she failed to carry out necessary audit procedures in accordance with practice standards and rules;
(四) 未依据执业准则、规则执行必要的审计程序;
(5) when he/she discovered possible errors or signs of malpractice, he/she failed to add the necessary audit procedures to substantiate or eliminate the same;
(五) 在发现可能存在错误和舞弊的迹象时,未能追加必要的审计程序予以证实或者排除;
(6) he/she failed to reasonably apply the principle of materiality required by the practice standards and rules;
(六) 未能合理地运用执业准则和规则所要求的重要性原则;
(7) he/she failed to adopt the necessary investigatory means to obtain sufficient audit evidence in accordance with audit requirements;
(七) 未根据审计的要求采用必要的调查方法获取充分的审计证据;
(8) he/she was well aware that he/she lacked the ability to reach a judgement on a specific audit subject that had a material impact on the overall conclusion, but failed to seek the opinion of an expert and directly produced an audit opinion;
(八) 明知对总体结论有重大影响的特定审计对象缺少判断能力,未能寻求专家意见而直接形成审计结论;
(9) he/she erroneously judged and evaluated audit evidence; or
(九) 错误判断和评价审计证据;
(10) he/she committed another act that violated the work procedures determined in the practice standards and rules.
(十) 其它违反执业准则、规则确定的工作程序的行为。
Article 7: If an accounting firm is able to substantiate the existence of any of the following circumstances, it shall not be liable for civil compensation;
第七条会计师事务所能够证明存在以下情形之一的,不承担民事赔偿责任:
(1) it complied with the work procedures determined in the practice standards and rules and acted with the necessary professional prudence, but nevertheless failed to discover errors in the audited accounting materials;
(一) 已经遵守执业准则、规则确定的工作程序并保持必要的职业谨慎,但仍未能发现被审计的会计资料错误;
(2) a financial institution or other such work unit on which an audit must rely provided false or untruthful supporting documentation and the accounting firm, while acting with the necessary professional prudence, nevertheless failed to discover that it was false or untruthful;
(二) 审计业务所必须依赖的金融机构等单位提供虚假或者不实的证明文件,会计师事务所在保持必要的职业谨慎下仍未能发现其虚假或者不实;
(3) it raised a warning in respect of signs of malpractice by the audited work unit and indicated the same in the audit report;
(三) 已对被审计单位的舞弊迹象提出警告并在审计业务报告中予以指明;
(4) it complied with the capital verification procedure in conducting the review and issuing the report, but the work unit that commissioned the capital verification illegally withdrew capital after registration; or
(四) 已经遵照验资程序进行审核并出具报告,但被验资单位在注册登记后抽逃资金;
(5) it issued an untruthful report for an investor that, at the time of registration, had not made its capital contribution or had not made its capital contribution in full, but after registration made up the shortfall in its capital contribution.
(五) 为登记时未出资或者未足额出资的出资人出具不实报告,但出资人在登记后已补足出资。
Article 8: If a materially interested party was well aware that the report issued by an accounting firm was untruthful but used it nevertheless, the people's court shall reduce the accounting firm's liability for compensation by taking such circumstance into consideration..
第八条利害关系人明知会计师事务所出具的报告为不实报告而仍然使用的,人民法院应当酌情减轻会计师事务所的赔偿责任。
Article 9: Words such as "This report is provided solely for annual inspection purposes", "This report is provided solely for business registration purposes" indicated on a report by an accounting firm may not serve as grounds for exempting it from liability.
第九条会计师事务所在报告中注明“本报告仅供年检使用”、“本报告仅供工商登记使用”等类似内容的,不能作为其免责的事由。
Article 10: When a people's court determines in accordance with Article 6 hereof the compensation that an accounting firm shall bear concomitant with its degree of negligence, it shall handle matters as follows:
第十条人民法院根据本规定第六条确定会计师事务所承担与其过失程度相应的赔偿责任时,应按照下列情形处理:
(1) the loss of the materially interested party shall first be compensated by the audited work unit; if an investor of the audited work unit made a false or untruthful capital contribution or illegally withdrew its capital contribution and failed to make up the shortfall thereafter, and enforcement in accordance with the law against the audited work unit's property is insufficient to compensate for the loss, the investor shall bear liability for making up the compensation to the materially interested party to the extent of its false, untruthful or illegally withdrawn capital contribution;
(一) 应先由被审计单位赔偿利害关系人的损失。被审计单位的出资人虚假出资、不实出资或者抽逃出资,事后未补足,且依法强制执行被审计单位财产后仍不足以赔偿损失的,出资人应在虚假出资、不实出资或者抽逃出资数额范围内向利害关系人承担补充赔偿责任。
(2) if enforcement in accordance with the law against the property of the audited work unit and the investor is insufficient to compensate for the loss, the accounting firm shall bear the attendant liability for compensation to the extent of the amount untruthfully audited by it;
(二) 对被审计单位、出资人的财产依法强制执行后仍不足以赔偿损失的,由会计师事务所在其不实审计金额范围内承担相应的赔偿责任。
(3) the liability for compensation that an accounting firm bears toward one or more materially interested parties shall be limited to the untruthfully audited amount.
(三) 会计师事务所对一个或者多个利害关系人承担的赔偿责任应以不实审计金额为限。
Article 11: If an accounting firm and a branch or sub-branch thereof are co-defendants, the accounting firm shall bear joint and several liability for compensation in respect of the portion of the liability borne by its branch or sub-branch.
第十一条会计师事务所与其分支机构作为共同被告的,会计师事务所对其分支机构的责任部分承担连带赔偿责任。
Article 12: If a tort compensation dispute involving an accounting firm as mentioned herein has not been tried, the people's court may not add the accounting firm as a person against whom a judgment is enforced.
第十二条本规定所涉会计师事务所侵权赔偿纠纷未经审判,人民法院不得将会计师事务所追加为被执行人。
Article 13: These Measures shall be effective as of the date of promulgation. In the event of a conflict between these Provisions and provisions previously issued by this Court concerning the civil liability of accounting firms, such provisions shall cease to apply.
第十三条本规定自公布之日起施行。本院过去发布的有关会计师事务所民事责任的相关规定,与本规定相抵触的,不再适用。
These Provisions shall not apply to civil tort compensation cases involving accounting firms that were tried before the promulgation and implementation hereof and in which a concerned party has filed an appeal or in which a decision for a retrial has been rendered in accordance with trial supervision procedures.
在本规定公布施行前已经终审,当事人申请再审或者按照审判监督程序决定再审的会计师事务所民事侵权赔偿案件,不适用本规定。
These Provisions shall apply to civil tort compensation cases involving accounting firms that are pending at first instance or second instance at the time of the promulgation and implementation hereof.
clp reference:3120/07.06.11prc reference:法释 [2007] 12号promulgated:2007-06-11effective:2007-06-15在本规定公布施行后尚在一审或者二审阶段的会计师事务所民事侵权赔偿案件,适用本规定。
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