Developing and testing a framework to impose legal liability on Chinese auditors for misstatements
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This thesis first builds a framework to impose professional liability on Chinese auditors for misstatements and then tests the framework by field work. Auditor liability has been a recurring puzzle. This thesis intends to analyze the complex legal relationships among the players in typical auditing litigations, dissect the arguments from both the auditors and plaintiffs, and develop doctrines and check points that could help the litigation parties to evaluate the merits of their claims, to predict the litigation outcomes, and to mitigate litigation risks in the Chinese setting. The author adopts a utilitarianism perspective and utilizes the theory of “contract and status”. The main methodologies employed include: case report analysis, legal reasoning, interviews, and questionnaire survey. Comparison across jurisdictions and interdisciplinary perspectives have been utilized all through the thesis. In the first part, the author draws a portrait of the Chinese auditing profession, and then moves to synthesize the previous literature on audit liability from both accounting and legal perspectives. After this, a significant part of the thesis is devoted to analyzing the typical UK reported cases since the late 19th century including the Caparo case, Bannerman case and others to discover the UK laws regulating auditor liability. In the following chapter, the recent trends of legislation in the UK and the company law harmonization practice of the EU are reviewed. Then, based on a survey on current Chinese law and an analysis on the feasibility of transplanting the UK and EU practice into China, the author develops a proposed framework integrating doctrines and practical checking points about eligible plaintiffs, duty of care, wrongdoings, standards of care, and damage calculation and allocation in typical litigations. In the second part, the proposed framework is dissected into questions, which are examined through 38 interviews with auditors, regulators, financial statements preparers, and lawyers, and 470 survey questionnaires completed by auditors and members of the financial community, along with questions about responsibility and the technical abilities of auditors. The data from the field produces a cross-section picture of the perceptions of stakeholders on auditor liability. Statistical analysis shows there are significant differences between the auditor and non-auditor on the majority of the related issues, such as auditor’s responsibility, eligible plaintiff, and others. The empirical analysis gives general support for the proposed framework.