On Product Defect And Products Liability

At the beginning of this thesis, the author presents his personal definition of "product defect" after having first compared various definitions of product defect that are set out in the laws of the major developed nations of the world. The author also briefly introduces the background of products liability in America and imputation doctrines of products liability occurring throughout the history of common law. These doctrines mainly address negligence for defective products, implied warranty of merchantability and strict liability doctrine, except the privity of contract in the early period of products liability. Subsequently, the author discusses the imputation doctrine related to products liability under the body of Chinese law. In this legal context, the author recognizes imputation doctrine as the sole doctrine of liability without fault, rather than a mixed doctrine wherein liability without fault applies to manufacturer, and liability for negligence applies to distributors.In the second section of the thesis i.e., the "Criteria To Establish A Defect", the author first distinguishes between the different meanings of product defect and product safety that are set out in tort law and in public law, and brings forth the phase dividing for product defect. Referring to "Directive 2001/95/EC of the European Parliament and of the Council On General Product Safety", the author puts forward the logical criterion for determining a defect which may be regarded as the basic criterion. The author then introduces two practical criteria, i.e. the consumer expectation test and risk- utility balancing both of which were derived fromAmerican courts and have exerted important influence on development of products liability in America. The consumer expectation test, which is most applicable to manufacturing defects and instructive defects, states that when the properties of a product being reviewed, the local common consumer's expectation should be adopted to judge whether product properties are in reasonably safe range or borderline. The author gives the appropriate consumer expectation criteria in China. Risk-utility balancing, on the other hand, applies primarily but not exclusively to design defect. Risk is associated to the potential damage resulting from an existing product having a defective design and utility as cost saving not to adopt an alternative design that would remove the design defect This criterion works in this way: if risk is greater than a utility then the design is considered defective. The author suggests that this criterion should be adopted in Chinese courts to adjudge difficult design defect cases. In the last of this section, the author considers that the coercive standards of product quality issued by competent Chinese authorities should be the lowest criterion on which product defects to be judged.In next section, the author discusses manufacturing defect, design defect and instructive defect in detail. Manufacturing defect and design defect are two kinds of physical defects. Besides attribution to inadvertent design error, design defect may also be the result of a conscious design choice that presents unreasonable danger in the product. Instructive defect is also named as inadequate instruction or warnings. It is the result of the failure to properly and sufficiently instruct or warn a consumer about potential product dangers.In the section "Studies of Concrete Issues On Product Liability", the author discusses four issues. First, about the range of persons who should assume product liability, the author considers what should include services provider who provides product consumption besides manufacturer and distributor. Second, the author discourses recall of defective products and obligation of the product provider eliminate or remove the danger associated with a defective product The author classifies product recall into obligatory recall and voluntary recall and the latter is involved in contract law. The product provider should be obliged to recall the samekind or same batch of products when either a product has caused, or there is evidence of high probability that it will cause, an accident. The third issue discussed is punitive damages in products liability. The author figures out intentional infringements from products liability, which include failure to recall defective products, and production and distribution of inferior quality product that are likely to put a consumer's health or property in danger. The author also proposes various reasons for inferior quality products being rampant in China. The main reason cited by the author is that product safety warranty systems are entirely dominated by inefficient and ineffective administrative powers and processes. In order to set up a sufficient deterrent against intentional infringement by product providers, the author suggests that punitive damages should be applied to intentional infringement in products liability. In the last respect, the author raises the principle of defect ipsa loquitur which is derived from res ipsa loquitur of common law, and appeals for introduction of such principle into the body of Chinese law.In the last section of the thesis, the author suggests various means for improving the products liability system in China, through both legislation and jurisdiction.