Research And Analysis Against The Recall System Of The Defective Products In Our Country

Along with the coming out of high-tech products in modern society, the systematic and identical defective products are full of the society in which we live because of the defect or neglect that lies in design, manufacture, and indication mark. With unceasing coverage on newspaper and other media about defective products that causes severe damages on consumers'life and health. Since 1960's,many countries represented by America set up their own recall system of the defective products, aiming to reduce the huge threat on social common security and interest brought by defective products and earnestly guarantee the legal interests and rights of consumers. Such system has received sound feedback. With latter initial step on this part, our country set up the Administrative Provisions on the Recall of Defective Automobiles in 2004 which aroused wide attention of various circles, filling the legal vacancy and establishing the foundation of recall system of the defective products, meanwhile sparking the research of recall system of the defective products in the academic circles. Under this background, this thesis proposes to contribute humble effort to the research on recall system of the defective products in our country.This thesis is divided into two parts.The first part is a theoretical analysis to recall system of the defective products, which divided mainly into six parts. Firstly, with a view of the rising consumer movement and paying attention to social responsibility of enterprises, this thesis reveals the arising background of recall system of the defective products, and believing that the establishment of recall system is the certain value demand of people on the basis of security through further theoretical analysis. Secondly, reviewing the generation and development as well as comparing the differences of two kinds of recall system in European country and America, it introduces the representative recall system of the defective products in America focusing on recall law, measure, procedure, and the competent department. Thirdly, through analyzing and comparing several representative viewpoints, the author holds that it is far from enough to implement the recall of defective products only through self-supervision by the producer himself. There should be the supervision and control by the government and the active participation of consumers during the procedure. Therefore, concept of recall system of the defective products in the author's opinion is the general term of institution of law of all kinds of social relations during the recall procedure which is supervised by the government, took part in by the consumer, and implemented by the producer to reduce the damages of defective products. The direct manifestations of this institution in practice are the various kinds of rights, obligations, and duties of the government, consumers, and producers during the procedure of recall. The forth part is about the applicable object and affirmation of recall system of the defective products, mainly illustrating the detailed affirmation of defective products. Compared the affirmation of defective products in the countries worldwide, the author holds that there is a distinguished gap between the statements in Product Quality Law and the essential demand of recall system of the defective products. As the premises of product recall, defect in the phrase of recall system of the defective products should has special meaning different from the general term. To link with the category of defective products, the author thinks defect in recall system of the defective products means products which generating systematic, unexpected, and unreasonable risk because of design and manufacture factors before putting into circulation. Such defect should prefer the national and industrial compulsory standards as the lowest affirmation standard rather than the discovery of scientific technology when putting into circulation as affirmation promises. The fifth part mainly illustrates the characteristics of recall system of the defective products considering the wide range of the protecting object, the public interest of establishing propose, the prevention function of recall, the variety of participating subject, and the initiative of bearing duty. The sixth part is the legal duty of recall system of the defective products. Comparing the differences of product and Three Packets of Responsibilities, the author argues that the recall responsibility is the legal consequences bear by producer because of violation of provisions in recall law which stipulates that products can not have the defect which may damage the common security and interests. The recall responsibility should consider stringent responsibility as its principle.The second part is a thought on establishing and completing the recall system of the defective products in our country. This part mainly divided into four aspects, the first is the practical meanings establishment of recall system of the defective products in our country, the second is the current situation of recall system of the defective products in our country, the third is the shortage of recall system of the defective products in our country, the last part gives some relevant suggestion on completing the recall system of the defective products. When dealing with the current situation and shortage, the author briefly summarizes the generation and development of recall system of the defective products and makes detailed analysis on legal vacancy of it. The author mainly gives expressions to two points: first is the short of recall system. Up to the present day, our country only enacts department regulation in the limited scope with low level and weak authority, thus hard to be identified by other departments. Second, the over light punishment of recall system of the defective products is hard to form an effective deterrent, making the design of recall system invalid. The other part mainly proposes some relevant suggestions and images of completing recall system of the defective products in our country. First is to complete relevant laws to improve the legal hierarchy of recall system of the defective products. The main suggestion is to amend and complete relevant law by legislature, includes bringing the content of recall into the state's construction of a legal system and forming a relatively integrated recall system to ensure the implement of recall system of the defective products. Second is to extend the applicable scope of recall system. The author believes that all defective products existing unreasonable risks which may endanger common interests and security should belong to the scope of recall. The wider range of recall products, the more secure of body and properties of the consumers would be. Furthermore, the products with no defect of its own but causing environmental problem or harming national sovereignty and feelings should belong to the recall products in the author's opinion. Third, we should intensify the legal responsibility of recalling defective products, establish the punitive compensate system. Due to the light law responsibility of recall system in our country, we can draw the relevant legislation of other countries to introduce punitive compensate system and ensure the implement of this system. Forth is to identify the law enforcement subject and emphasize the diversification of the authorities concerned. The author proposes a pattern of National Bureau of Quality Inspection as the core and relevant department as supplementary. Using this pattern we can guarantee the authority of the department and the professional of decision about the recall products. Fifth, we should establish a authoritative Product Quality Inspection Institution to formulate the complete standard system of defective products. The author holds the establishment of inspection authority by the third party and the standard of product quality inspection is the key to solve the difficulties of recalling defective products. Sixth is to complete institution of relevant product information system, which includes the self-restriction and register records system in design and manufacture procedure, client tracing and government supervision in sales and maintenance, public recall and information feedback system.