On The Tests For Design Defect

The test for design defect is an important issue in product liability. In the UnitedStates, the two basic tests are the consumer expectation test and the risk-benefit analysis test, while other tests, such as the hybrid test and the two-prong test also function in some states. The latest development of test of design defect is Article 2 of Restatement of the Law, Third, Torts: Products Liability, where the reasonable alternative design test is adopted. The new test has discarded the consumer expectation test, gone beyond the risk-benefit analysis test, and balanced the interests of different parties. Although, in the whole, it follows the risk-benefit analysis test, it adopted a new concept ofreasonable alternative design.Under the safety test, whether there exists a design defect depends on what an ordinary person expects of the safety of a product, while, in law enforcement, many factors are taken into account. The safety test is applied in member states of European Union and some other European countries as well as Eastern Asian countries and regionsincluding Japan, the Republic of Korean and Taiwan, Province of China and the model of the safety test is E. E. C. Directive on Product Liability, mostly adopted the safety test.In China, the test for design defects is stipulated in Article 46 of the Law onProduct Quality, which adopts a double standard that requires a reasonable danger aswell as the defendant's defying national standards or professional standards. Theconcept of unreasonable danger, which derives from the common law of the UnitedStates, has no concrete meaning in China, while, national standards or professionalstandards, which are standards for quality management, have weak law force and veryscarce. In fact, the double standard goes against the domestic consumers, with theresult that victims often suffer heavy losses, and foreign exporters have made use ofthe vacancy of the law of China.The tests for design defects in developed countries are respectively adapted totheir situations and differ to some extent in the law tradition, the history ofdevelopment, the degree of subjectivity or objectivity, the scope of application,factors considered and so on. Advanced countries learn from each other, consumers inthese countries are entitled to full protection, and therefore the tests for design defectshave a good effect. By contrast, China has lagged behind in legislation, judicature andlegal research. In the legal reform of China, we should established a system ofmodern product liability, by setting up the safety test, considering different factorsand balance interests of different parties properly, in order to protect the consumers asmuch as possible.