验资机构对验资委托人的民事责任及其认定

Responsibilities of Asset Accreditation Agency for the Client and Their Appreciation

验资机构和验资委托人之间的委托合同以委托人与验资机构之间的相互信任为前提,属于双务、有偿合同、不要式和诺成的特别委托合同。验资机构对验资委托人的民事责任存在契约责任与侵权责任竞合的情形。损害赔偿是验资机构对验资委托人承担民事责任的主要方式。由于委托人或第三人的原因而导致验资机构出具的验资报告与实际状况不符,委托人或第三人应当承担相应的责任。对于委托验资合同的免责条款的效力,应当从我国现行合同立法的规定和合同权利义务以及风险分配的合理性两个方面出发加以认定。

A mandate contract entered into by and between an asset accreditation agency and its client is premised on mutual faith. The contract is a kind of special contracts of mandate, which are of mutual obligation, onerous, informal and promise-based. Within the responsibilities of an asset accreditation agency for the client, overlapping exists of the contractual responsibilities with tortious ones. Where there appears to be a breach and the agency is liable for it, a client usually claims for damages for his remedy. In cases wherein an accrediting report is inconsistent with the fact due to a client or a third party’s fault, the client or the third party shall be liable for it. As to the exemption clause in an accrediting contract of mandate, its validity shall be ascertained in accordance with the existing contract law of the PRC and in consideration of the balance of contractual rights and obligations and share of contractual risks.