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No. 6 of Fourth Group of Twelve Model Cases Involving the "Belt and Road" Initiative Published by the Supreme People's Court: Strictly Limiting the Scope of "Interested Parties" in Litigation over Compensation Liability for Audit-related Tort and Clarifying the Legal Basis for the Duty of Care of the Accounting Firm— Case of dispute over tortious liability (Fusheng (Tianjin) Financial Leasing Co., Ltd. v. Warth & Klein Grant Thornton AG)
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最高人民法院发布第四批12个涉“一带一路”建设典型案例之六：富昇（天津）融资租赁有限公司与德国致同会计师事务所股份有限公司(Warth & Klein Grant Thornton AG)侵权责任纠纷案——严格限定审计侵权赔偿责任诉讼“利害关系人”的范围 阐明会计师事务所注意义务的法理基础
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【法宝引证码】
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| No. 6 of Fourth Group of Twelve Model Cases Involving the "Belt and Road" Initiative Published by the Supreme People's Court: Strictly Limiting the Scope of "Interested Parties" in Litigation over Compensation Liability for Audit-related Tort and Clarifying the Legal Basis for the Duty of Care of the Accounting Firm— Case of dispute over tortious liability (Fusheng (Tianjin) Financial Leasing Co., Ltd. v. Warth & Klein Grant Thornton AG) | | 最高人民法院发布第四批12个涉“一带一路”建设典型案例之六：富昇（天津）融资租赁有限公司与德国致同会计师事务所股份有限公司(Warth & Klein Grant Thornton AG)侵权责任纠纷案——严格限定审计侵权赔偿责任诉讼“利害关系人”的范围 阐明会计师事务所注意义务的法理基础? |
| [Basic Facts] | | 【基本案情】 |
| Fusheng (Tianjin) Financial Leasing Co., Ltd. (hereinafter referred to as "Fusheng Company) and Joyou Building Materials Co., Ltd. (hereinafter referred to as "Joyou Building Materials Company") entered into two financial leasing contracts in 2012, under which Joyou Sanitaryware Co., Ltd. (hereinafter referred to as "Joyou Sanitaryware Company") and Joyou Ceramics Co., Ltd. ( hereinafter referred to as "Joyou Ceramics Company") acted as guarantors to provide joint and several liability guarantee. Fusheng Company granted financing funds of 188 million yuan to Joyou Building Materials Company. However, Joyou Building Materials Company only paid partial funds and it went bankrupt later. Joyou AG is a company listed in Germany and it wholly holds shares of Joyou (Hong Kong) Company, which in turn wholly holds shares of Joyou Sanitaryware Company and Joyou Ceramics Company. Joyou Sanitaryware Company wholly holds shares of Joyou Building Materials Company. Fusheng Company alleged that according to the project report prepared by Joyou Building Materials Company at the time of application for loans, Joyou Building Materials Company and the guarantors were core enterprises affiliated to Joyou AG. Fusheng Company thereby downloaded the audit report issued by Warth & Klein Grant Thornton AG (hereinafter referred to as "Grant Thornton") from the website of German securities market, trusted and used false information in the audit report to make loan transaction decisions, and subsequently suffered losses. Fusheng Company thus requested that the court should order Grant Thornton to compensate for its losses. | | 富昇公司与中宇建材于2012年签订两份《融资租赁合同》，中宇卫浴、中宇陶瓷作为担保人提供连带责任担保。富昇公司向中宇建材发放了1.88亿元人民币的融资款。但中宇建材仅偿还部分款项，后该企业破产。德国中宇是在德国上市的公司，其全资持股香港中宇，香港中宇全资持股中宇卫浴和中宇陶瓷，中宇卫浴则全资持股中宇建材。富昇公司主张，中宇建材申请贷款时的项目报告记载，中宇建材及担保人均是德国中宇下属核心企业，富昇公司据此从德国证券市场网站下载了致同公司为德国中宇出具的审计报告，并信赖、使用该审计报告包含的不实信息而作出贷款交易决策并进而遭受损失，诉请判令致同公司赔偿富昇公司损失。 |
| [Judgment] | | 【裁判结果】 |
| In the trial of second instance, the Supreme People's Court held that the laws at the place of tort should apply to the foreign-related audit dispute over compensation liability for audit--related tort. As the places of tort included both the place where the tort was committed and the place where the tort produced results, it was correct to apply the law at the place where the tort produced results, namely, the law of the People's Republic of China. The essence of the tortious liability for compensation caused by the false audit report issued by the accounting firm was balance and coordination between the legal logic of torts and public policies. The containment and relief functions of the tort law should be demonstrated and the distortion of the normal market risk allocation mechanism should be avoided. The key point was to determine the scope of "interested parties" who may sustain losses due to reasonable reliance or use of a false audit report. In accordance with the provisions of Article 2 of the Several Provisions of the Supreme People's Court on the Trial of Compensation Cases for Civil Tort Involving Accounting Firms Engaging in the Audit Business (hereinafter referred to as the "Provisions on Compensation for Audit-related Tort"), the interested parties suffering losses due to reasonable reliance on or use of a false report issued by an accounting firm are limited to two categories: entities suffering losses in doing a deal with the audited entity and entities suffering losses in doing a deal relating to the stocks or bonds of the audited entity. Any third party other than the above two types of persons are not the interested parties under legal protection. Where there are no other provisions in the Tort Law of the People's Republic of China and other laws, it should be determined that the accounting firm did not bear the statutory duty of care to any other third party. In this case, although the companies listed in the Notes to the Consolidated Financial Statements in the audit report issued by Grant Thornton included Joyou Building Materials Company, Joyou Building Materials Company was not the audited subject of Grant Thornton and Fusheng Company had never engaged in any transactions related to stock options of Joyou AG, the audited object of Grant Thornton. Therefore, Fusheng Company was not an interested party to the lawsuit involving compensation for tort caused by the audit report issued by Grant Thornton. As Grant Thornton did not bear the statutory duty of care to Fusheng Company, it was not at fault in violation of the statutory duty of care accordingly. Therefore, it should not bear any tortious liability. The Supreme People's Court thus ruled to dismiss the claims of Fusheng Company. | | 最高人民法院二审审理认为，涉外审计侵权赔偿责任纠纷适用侵权行为地法，因侵权行为地包括侵权行为实施地和侵权结果发生地，一审判决适用侵权结果发生地法律即我国法律正确。会计师事务所不实审计报告侵权赔偿责任的实质是侵权法律逻辑与公共政策之间的平衡与协调，既要彰显侵权责任法的遏制和救济功能，又要避免发生正常市场风险分配机制扭曲的现象，其关键点在于确定合理信赖或使用不实审计报告致损的“利害关系人”之范围。根据《最高人民法院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》（以下简称《审计侵权赔偿规定》）第二条的规定，因合理信赖或者使用会计师事务所不实报告而遭受损失的利害关系人只限于两类：一类是与被审计单位进行交易活动而遭受损失的主体，另一类是从事与被审计单位股票期权等有关的交易而遭受损失的主体。上述两类人员以外的第三人不属于法律保护的利害关系人，在我国侵权责任法等法律无其他规定的情况下，应当认定会计师事务所对其他第三人不负有法定注意义务。本案中，虽然致同公司审计报告中《合并财务报表附注》列明合并财务报表的公司包括中宇建材，但中宇建材并不是致同公司的审计对象，富昇公司也未从事与致同公司审计对象德国中宇股票期权等有关的交易，故富昇公司不是致同公司审计报告侵权损害赔偿之诉的利害关系人。致同公司对富昇公司不负有法定注意义务，其相应不具有违反法定注意义务之过错，不应承担侵权责任。据此，判决驳回富昇公司诉讼请求。 |
| ．．．．．． | | ．．．．．． |
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