| Product liability doctrine has confused our legal academy like a riddle for a long time. In the field of product liability, which liability doctrine is optimal: negligence doctrine, or strict liability doctrine? The mainstream view in our legal academy is that strict liability doctrine should be applied, but some other legalists insist that negligence doctrine be optimal, both sides can not reconciled. No doubt, whether the answer to the above question is right depends on whether it tally with the basic requirement of state public policy, implied in product liability law; and the main concerns of state public policy to product liability doctrine lie in whether it can effectively promote the organic combination of the two main social aims, i.e. efficiency and fairness; then the optimal product liability doctrine should have fine character at both sides of efficiency and fairness. By this criterion of the optimal product liability doctrine, there are mistakes in both answers to the above question in our legal academy. In detail, though strict liability doctrine can obtain almost perfect effect in the field of manufacturing defect, but its application in the field of design defect and warning defect delay the promotion of efficiency and does harm to the realization of fairness. On the other hand, the application of negligence doctrine in the field of design defect and warning defect can promote the combination of efficiency and fairness, but this doctrine can do nothing when it faces manufacturing defect, especially counterfeit and substandard goods etc. great social problems, and this is obviously unfair. In fact, the right answer to the above question is to construct a dual system of product liability doctrine, that is, applying strict liability doctrine in the field of manufacturing defect, and applying negligence doctrine in the field of design defect and warning defect. Then the two types of liability doctrine can do their best in different fields; and the combination of efficiency and fairness can be based on a solid legal system. For a long time, there are no substantial breakthroughs in the theory of product liability doctrine, the reasons are as follows: the first, the misreading of the concept of product liability doctrine, this is the outer reason; the second, the poverty of the traditional legal research methods, this is the inner reason. From the perspective of the outer reason, although it is admitted that product liability is a special tort liability based on defect, but on the treatment of the concept of product liability doctrine, the legalists often take product defect as existent and then only from the general tort liability dimension to interpret and apply this special tort liability doctrine. That is, in the research of the theory of product liability doctrine, the core area, i.e. the criterion of product defect is put aside by our legal academy, then the attention is put on the theoretical discussion and debate of the general tort liability doctrine, i.e. strict liability doctrine and negligence doctrine, and this interprets the reasons why legal academy often applies insistently the same tort liability doctrine to all product defects and not respectively applying appropriate liability doctrine to different product defect types. Then it is the neglect of the special dimension of the concept of product liability doctrine, i.e., the criterion of defect that results in the current theoretical research plight. It is needed to point out that the misreading of the concept of product liability doctrine in our legal academy is not occasional, it arises in nature from the poverty of the traditional legal research methods in our country, as the words say that the inner reason decides the outer reason. From the perspective of the inner reason, the traditional legal research methods mainly include linguistic analysis method and case law method, but the criterion of product defect, especially design defect—as the core problem of product liability law, need a comparison or balancing of marginal cost and marginal benefit, it is obviously that the task of identifying product defect by numerical relation goes beyond the capacity of researching law by law of the traditional jurisprudence. Thus it can be seen that the ignoring research method of the criterion of product defect in our legal academy is a no-other-alternative act because of the limitation of the traditional legal research method. Frankly, traditional jurisprudence, by its own logic, can not develop numerical relation method, and so, we must find appropriate tools and research methods beyond the traditional jurisprudence. The development practices of product liability law abroad especially in U.S.A. reveal that the law and economics analysis paradigm—coring on cost-benefit balancing computation, taking the marginal analysis method as the fundamental tool -- is exactly the appropriate research method. In one word, we should apply law and economics analysis paradigm to define product defect scientifically, and basing on it, establish an appropriate defect standard for every defect type, and in the last construct a product liability doctrine system helpful to realize the aim of the combination of efficiency and fairness. Only so there can be substantial breakthroughs in the dimension of the reading of the concept of product liability doctrine in our legal academy, and then goes out from the mire of long-time stagnant research of product liability doctrine.Since we have found out the inner and outer reasons that put the theoretical research of product liability doctrine into the mire in our country, then, our foremost task is to reform radically, to find a resolution pathway from the fundamental reason. In view of this, the start point is the clean-up of the basic concept of product liability doctrine and the construction of the law and economics analysis paradigm, in order to settle the riddle of product liability doctrine. The first, by a detailed inspection, there is the following conclusion: product liability doctrine is the foundation and standard that taking the standard of product defect as its main contents, taking the fundamental category of the general tort liability doctrine as value orientation and to ascertain the manufacture's product defect liability; the extension of the concept can be reasonably defined as the manufacturing defect doctrine, the design defect doctrine and the warning defect doctrine. It can be seen that the spiritual essence of product liability doctrine lies in the fundamental categories of the negligence doctrine and the strict liability doctrine etc., and the spiritual essence manifests outside as trident definition of product defect and the standard of every type of product defect in judicial practices. The second, by systematic research into the law and economics analysis paradigm, there is the following conclusion: the fundamental research methods of law and economics mainly include marginal analysis method, balancing analysis method, and efficiency analysis method. These analysis methods can not only help us to find out explicit and practical liability doctrine or liability standard, but also can interpret and predict the incentive effects of each liability doctrine or liability standard and its influences on the social welfare, that is, the efficiency aims. The third, by applying the law and economics analysis paradigm to the analysis of each liability doctrine for product defect, there can be a law and economics explanatory structure on product liability doctrine. For the reason of the great difference of the three type product liability in main characteristics, naturally the efficient accident-avoidance methods in every defect field is different from each other; responding to this, the optimal standard of each defect, based on efficiency, is inevitably different in concrete contents and liability attributes. In detail, in the law and economics explanatory structure of product liability doctrine in the article, the optimal standard for manufacturing defect is a test of not-fit-to-the-product-design which has the character of strict liability; the optimal standard for design defect is a standard of reasonable-alternative-design which has the character of negligence; the optimal standard for warning defect is a standard of reasonable-alternative-warning which has the character of negligence. Here we may construct a trident liability doctrine system which is based on a scientific product liability doctrine concept cored on a tri-articulated definition of product defect, helpful to realize the organic union of efficiency and fairness. Because in trident liability doctrine system, the test of not-fit-to-the-product-design belongs to the category of strict liability doctrine, but the later two standards belong to the category of negligence doctrine, then the trident liability doctrine system may be called a dual liability product liability doctrine. It can be seen, the trident liability doctrine system and the dual liability doctrine system are the manifestation of the same liability doctrine system in different dimensions, among them, the later is the spiritual essence and value orientation of the former, and the former is the external performance of the later, the two organically are united in the same liability doctrine system. The last which must be emphasized is that the theory is grey, but the tree of practice is evergreen; the value and vitality of all theories depend on whether they can be transformed into live practices. As a result, after getting the explanatory structure of product liability doctrine, there gives a deep research into the necessity, possibility and concrete measures that transplanting the core conclusion of the explanatory structure into our product liability system, and further understands that some legislation proposals in this article can do favor to the perfection and consummation of product liability doctrine of our country, and then can provide powerful legal institutional guarantee for the realization of the organic union aim of efficiency and fairness, and the construction of socialist harmonious society in our country.The article, in logical structure, consists of three parts: the theoretical preparation part, the concrete construction part and the practical application part of law and economics explanatory structure for product liability doctrine.The theoretical preparation part of the explanatory structure consists of three chapters: the first chapter, the second chapter and the third chapter. Among those, the first chapter mainly tells the background to construct the law and economics explanatory structure for product liability doctrine, and this background consists of the research situation of product liability doctrine, the misreading to the concept of product liability doctrine in legal academy, the limitation of the traditional legal research methods, the thinking pathway and meaning of constructing the explanatory structure etc. in current china. The second chapter gives a conceptual foundation to the construction of the explanatory structure. In this chapter, we, by a historical inspection of product liability doctrine, can get such propositions: the modern product liability law takes product defect as the fundamental requisition or the last limitation to ascertain liability attribution, i.e. no defect no liability. It inevitably means that the concept of product liability doctrine must be constructed by the core of the standard of product defect. Then, there is the concept of product liability doctrine: product liability doctrine is a tort liability doctrine which cores on the standard of product defect and puts the fundamental category of general tort doctrine as the value orientation. At the last, we classify product liability doctrine as manufacturing defect doctrine, design defect doctrine and warning defect doctrine. The third chapter gives the methodological foundation to the construction of the explanatory structure. In this chapter, we, by the inspection of the development vein of the law and economics analysis paradigm, get such understandings: the technical advantages which result in the success of the law and economics analysis paradigm mainly embody in three main constitutional parts, that is, marginal analysis method, balancing analysis method and efficiency analysis method. Considering it, in this article we give a thorough inspection of the three main constitutional parts of the law and economics analysis paradigm and their respective role and position in the paradigm structure, and basing on this, we briefly research into the concrete application of the law and economics analysis paradigm in general tort doctrine.The part of concrete construction of the explanatory structure also includes three chapters: the fourth chapter, the fifth chapter and the sixth chapter. From the point of view of law and economics the fourth chapter establishes the explanatory structure of the optimal standard of the manufacturing defect which has strict liability attribute, namely the standard of not-fit-to-the-product-design. This construction of the explanatory structure includes three concrete steps. Firstly, the marginal analysis method is applied to confirm the best solution to maximize the social welfare, namely the optimal standard of the manufacturing defect. Secondly, incentive effect of the liability standard to producer is gotten through the maximization solution of the producer's objective function under the restraint of all the liability doctrines. Finally, through comparing the incentive effect of all the liability doctrines, it is concluded that the standard of not-fit-to-the-product-design that has strict liability attribute is the optimal defect criterion in the field of manufacturing defect. The fifth chapter constructs one explanatory structure of law and economics about the optimal standard which has the attribute of negligence doctrine, namely the standard of reasonable- alternative-design. Firstly, this chapter exposits the pathway and cause of the design defect standard which transforms from consumer expectation standard to risk- utility balancing standard through the historical inspection of design defect doctrine. Secondly, this chapter expounds the intension and extension of the standard of reasonable-alternative-design by marginal analysis method and by this expounding analyzes the incentive effect of the strict liability doctrine and negligence doctrine. Finally, by comparing incentive effect of the two liability doctrines this chapter draws the following conclusion that standard of reasonable-alternative-design that identifies the design defect and has tort liability attribute is the inevitable choice of product liability law on the basis of the social efficiency and social justice. The sixth chapter constructs one explanatory structure of law and economics about the optimal standard of warning defect that has attribute of negligence doctrine, namely the standard of reasonable-alternative-warning. With the same thinking pathway of the design defect doctrine, this chapter firstly makes an historical inspection of the warning defect doctrine, then elaborates many aspects of standard of reasonable-alternative-warning such as the content, incentive effect and influence to the efficiency etc. separately from points of view of marginal analysis, balancing analysis and efficiency analysis and so on. It needs to be emphasized that the special character of product warning easily makes standard of reasonable-alternative-warning malfunction. Undoubtedly, the court should take some compensation measures for the malfunction of this standard. The more effective compensation measures mainly include refusing to impose liability for failure to insignificant warnings, complying with the regulations of the institutions capable of evaluating warnings, injecting procedural rigidity to warning defect liability and so on.The practical application part of explanatory structure refers to the seventh chapter. This chapter's goal lies in applying the law and economics explanatory structure of product liability doctrine in this paper to our country's product liability legislation practice. Therefore, this chapter firstly inspects the historical evolving orbit of our country's product liability, subsequently analyzes the status quo and shortness of our country's product liability doctrine, and finally puts emphasis on discussing how to establish the trident system of our country's product liability doctrine according to this paper's analytical conclusions.This paper's innovation mainly consists of three parts. The first one is concept innovation. The second one is method innovation. The third one is the innovation of liability doctrine.Firstly, concept innovation: The traditional jurisprudence usually only pays attention to the dimension of general tort doctrine while establishing the concept of product liability doctrine, meanwhile superficially neglecting research of the criterion of product defect. But this paper establishes the concept of product liability doctrine on the center of product defect within the basic category of general tort. It can be said that this article's product liability concept not only manifests the generality of tort but also highlights the core status of product defect. So, the intension of product liability doctrine turns from the fuzzy standard identifying producer's fault to explicit and objective standard of product defect. Moreover, this paper reasonably defines the extension of product liability doctrine as manufacturing defect doctrine, design defect doctrine and warning defect doctrine on the basis of the tri-articulated definition of product defect. In general, the traditional jurisprudence ignores the particularity of the concept of product liability doctrine when defining the concept, but this paper's concept innovation mainly lies in organically combining the generality and the particularity of the concept, making product liability turn from an metaphysical concept that has fuzzy intension and abstract extension into the functional one that has explicit and objective intension and concrete and clear extension by taking product defect standard as the special plane of the concept for the sally port, therefore setting the basis for establishing the trident liability system of product liability.Secondly, method innovation: The research methods of the traditional jurisprudence mainly comprise linguistic analysis method and case law method. Different from researching law by law in the traditional jurisprudence, analysis model established by this paper is a new structure of the law research that takes marginal analysis method as the basic tool, takes balancing as core concept and takes efficiency as the normative objective. So to speak, the method innovation of this paper exists in using economic theories, especially the theories of microeconomics and welfare economics, to analyze the formation, structure and operation of law, the economic effect of legal system and so on. This new legal research method opens an other window concerning the legal field for the jurisprudence community, thereby let us more all-sidedly and profoundly understand the running of the legal institution and improve original legal system.Thirdly, liability doctrine innovation: The liability doctrine innovation is undoubtedly the inevitable result of the combination of the concept innovation and the method innovation. This paper applies analysis model of law and economics to the concept of product liability doctrine centering on the tri-articulated definition of product defect, subsequently constructs a trident system of product liability doctrine that organically combines the optimal standard of manufacturing defect, namely standard of the not-fit-to-the-product-design, the optimal standard of design defect, namely standard of reasonable-alternative-design, and the optimal standard of warning defect, namely standard of reasonable-alternative-warning. Compared with our country's original sole strict liability and unreasonable standard of defect, namely standard of not-fit-to-the-compelling-statute, the trident liability system established by this paper is obviously the innovation in product liability doctrine. It is needed to point out that it is through the innovation in product liability doctrine that the effective protection of the legal system is acquired for realizing the target of the organic uniform of efficiency and fairness and founding the socialist harmonious society in our country.
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