Thesis (doctoral)--Ruprecht-Karl-Universität zu Heidelberg.

Thesis (doctoral)--Universität Marburg.

Thesis (doctoral)--Universität Erlangen.

Thesis--Wisconsin. / Vita. Includes bibliographical references (leaves 223-230).

By the end of the twentieth century, and after a long line of conflicting case law, the question about the basis of liability in nuisance was settled: in Scotland, damages are awarded only upon proof of fault (RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17). Fault, in turn, can adopt many forms: malice, intention, recklessness, negligence, and conduct causing a special risk of abnormal damage (Kennedy v Glenbelle Ltd 1995 SC 95). Many aspects of this seemingly clear picture, however, remain problematic. On the one hand, the way in which this model is interpreted and applied gives place to particular forms of liability that can actually be characterised as strict. On the other hand, two other areas of the law of neighbours that overlap with the scope of nuisance do not fit entirely this model, namely the regulation of disputes over uses of water and of those arising from withdrawal of support. The main argument of this thesis is that damages claims in the context of neighbourhood are governed by two distinct rules: a general fault-based liability rule for nuisance, and an exceptional strict liability rule for abnormally dangerous conduct. For the first of these rules, the thesis offers an evaluation of the fault model adopted in Kennedy v Glenbelle Ltd, explaining the interaction between its different elements and highlighting the developments that can result in forms of strict liability. For the second of these rules, the thesis develops an analysis of its elements and nature, as well as a proposal that delineates its scope of application. This two-rule model offers a justification for the current structure of the law applicable to disputes over uses of water. The strict liability rule applicable to interferences with the natural flow of watercourses, traditionally explained as based upon the infringement of property rights, is better explained as danger-based. The regulation of disputes arising from withdrawal of support, however, is not consistent with this model, even though they have also been characterised as nuisances. It is argued that this framework entails unjustified inconsistencies, both internal and by reference to the model proposed, and that it should be adjusted accordingly.

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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.

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