Comparison Between The Basic Issues Of Product Defect Of China And America

Product defect is the most important definition in products liability law. Based on the academic research, legislation and judicial practice of product defect of China and America, this article expatiates on the category, test, imputation theory and compensation of product defect. The purpose to clarify the problems and disputes in the legal system of product defect of the two countries will be achieved by empirical study.This article expounds product defect according to the procedure of product defect litigation. Firstly, confirming the product defect for liability should depend on some tests. Secondly, we should rely on the imputation theory to investigate the liability of manufacture after the product is validated as defective. Thirdly, recovery is paramount after the liability is determined in which punitive damage is the most controversial which will be discussed in detail.This article includes foreword, five chapters and epilogue. The foreword elaborates the boundary of this research subject, the progeny research of scholars, the materials used and the value of this research subject.The first chapter is about the introduction of product defect. It analyzes the product defect's role in products liability, the difference of products liability with products quality liability, the relation between products liability law and products safety law. Focusing on enforcement of the area of the defect legal system, it construes the attitude of the courts of China and America to the theory's enforcement to special products. Last, it ascertains the definition of product defect, the relation between product defect and product flaw, and points out that product defect and product flaw have not been distinguished in American products liability law.The second chapter concerns on the category of product defect. Although the generic defect needn't been confirmed all the time in litigation, it is necessary to classify product defects. To summarize the legislation, judicial cases and academic research of China and America, it discusses the category of product defects in detail. There are three generic defects in general which include the manufacture defect, design defect and warning and instruction defect. It analyzes the characteristics and typical cases of each generic defect and illuminates the overlap of manufacture defect and design defect, design defect and warning and instruction defect which has made the courts confused by lively description of cases.The third chapter concentrates on the test of product defect. The test of product defect which includes technical test, unreasonable dangerous test, consumer expectation test and risk-utility test is the premise to judge product defect. But there exists difference between test of product defect of China and America. The test regulated in Product Quality Law of China encounters embarrassment in judicial practice and judges are often at loose ends when facing the cases which concerns the product conforming to the technical test while possessing unreasonable danger. The frame of test of product defect presents pluralistic, which involves unreasonable dangerous test, consumer expectation, and risk-utility as well as technical test. This section also analyzes the test of manufacture defect, design defect, warning and instruction defect at large. The fourth chapter is about the imputation theory of product defect liability. The theory of imputation plays important role in the liability of product defect and representative academic viewpoints are introduced. Negligence theory and strict liability are the emphases of this chapter because of their controversial situation absolutely. The foundation of value, merits, the enforcement in product liability law of negligence and strict liability will be introduced separately. The struggle between negligence and strict liability gives prominence in the past years. What is the reason of strict liability's shifting from unique role to being enforced conditionally? It is the rational regression or dispute of interests? Strict liability is unique in Chinese product liability but its enforcement in judicial practice has not gained satisfaction. Consumer wins in a case not for the strict liability itself but for the burden of proof conversion which makes us ponder it deeply and rationally.The fifth chapter is about the punitive damage in products liability law. Punitive damage is considered unique of case law system. The definition, theory and controversy of punitive damage suggest its value base, which may not inosculate with the traditional civil law theory of civil law system. Punitive damage in American products liability law has brought evident problems which makes people to call for the revolution of it. But it is the real fact that it indicates well in practice and the court and the jury have rational attitude to it more. Great changes have taken place in Chinese products liability law which points to the punitive damage's being introduced in Food Safety Law and Tort Liability Law (Draft). Punitive damage will play more important role in Chinese products liability law.The epilogue points out that product defect is the foundation to investigate the liability of manufacture and its relative theories determine whether the consumer can be compensated. It takes the food defect as example to indicate the theory Chinese legislation of products liability should adopt, the attitude courts should treat in product defect cases. Lastly, the consumer should boost cognition of product defect and its relative theories.