| Aiming at consumer protection, by exerting defective-recalling responsibilities on producers, the system of product recall improves the passive condition where consumers are put under the traditional legal remedy mode, reduces harm that defectives have done to society, and protects consumers'interests. Since the launch of Administrative Regulations on Recalls of Defective Automobile Products in 2004, product recall system has already been established in many industries, however, with somewhat problems. Concerning this, studies and analysis on theoretical questions of product recall system have tremendous significance for China's economic development and social security, etc.Through theoretical analysis on the system of product recall, this thesis discusses the current situation of this system and problems existing in it, based on which this thesis further puts forward specific suggestions for completing China's product recall system. Besides the introduction part, this thesis is divided into four parts, and renders its readers analysis and illustrations on the system of product recall from aspects of definition review, analytical jurisprudence, criticism on current situation, and mode design.Part 1 will offer the readers the basic definition of recall and the system of product recall. This part lays foundation for the overall analysis. First, this part analyzes the definition and features of recall. Proceeding from the definition, summarizing descriptions of product recall in different regulations, this part defines recall as the following activities: Under the supervision and instruction of relevant government departments, under the relevant conditions and procedures law has stipulated, the producer releases a recalling announcement, warns its consumers, fixes, recalls and exchanges defectives which have already entered circulation, in order to undone the possible damages caused by defectives. Then features of recall are refined as the following: recalled products have defects; the activity of recall doesn't simply mean calling products back; there are legal conditions and procedures for recall, and of course this activity should be conducted under the supervision and instruction of relevant functional departments. From different perspectives, the activity of recall can be categorized into different classes: whether the producer recalls the defectives actively or passively can decides whether this activity can be called an active recall or a compulsory recall; according to the degrees of damage done by defectives, it then can be graded into three levels. In the later part of this chapter, the author compares recall with another similar activity known as three guarantees, and comparison is drawn from three aspects: subject, responsibility nature and period of responsibility. Second, this chapter supplies its readers with illustrations of the definition of the system of product recall. System of product recall refers to a series of activities conducted by producers, importers or distributors under the notification that their products may do harm to consumers'health, and these activities include: acting under the stipulated procedures and requirements, notifying consumers that the products have defects, recalling defectives, and adopting positive and effective remedies like product exchange and compensation etc, aiming at erasing the risk brought by defectives. Moreover, this part analyzes three features of the system of product recall, i.e. the initiative, preventability and the public welfare. Then brief introduction of the development of product recall system will also be made.Part 2 is a theoretical analysis on the system of product recall. This part serves as a bridge linking the preceding part and the following part. Its function of linking the preceding part lies in the analysis on the system of product recall on the basis of relevant theories of jurisprudence. First, this part analyzes the nature of the system of product recall; in the micro sense, the system of product recall is a protective system exclusively set to protect consumers'safety right in the area of product consumption, so it is a special law for consumer protection. In the macro sense, in the theoretical system of economic law, both Product Quality Law and Consumer Protection Law belong to market order regulation methods whose mission is to enhance consumer's benefit and social public interests. So the author of this thesis holds the idea that product recall should be covered by Consumer Protection Law, and that it can resolve the problem of quality infringement in advance as far as consumer rights are concerned. Furthermore, this thesis analyzes product recall system's theoretical foundations. The author holds the idea that as a regulation for consumer protection, the system of product recall embodies the ideology of sociological jurisprudence which considers social interest as its standard while seeking intrinsically justice. The system of product recall is in the coverage of Consumer Protection Law, and also belongs to the range of economic law, and meantime the standard of social interest is the foundation of economic law. Consumers are the centralized representatives of social interest. To some extent, all members of modern society can be called consumers. All social members'life and activities are sort of consumption activities based on products gained from exchange activities to satisfy their needs of existence and development; exchanging product equally, fairly and also on one's free will are their wishes and requirements from the bottom of heart. Consumer groups'view of interest fits the nature of social interest. What's more, economic law also considers economic fairness as one of its basic principles, which has long been called essential fairness. Through the establishment of the system of product recall, the exchange activities between consumers and producers satisfy the requirements of essential fairness, i.e. rule fairness, information fairness, distribution fairness and social fairness, etc.Part 3 makes an analysis on problems existing in the system of product recall. This part is the core of this thesis. Based on the previous theoretical analysis, this part compares the oversea countries especially America's system of product recall with the current situation in China's system of product recall, and analyzes the latter's deficiency. Legislative deficiency lies in two aspects: the limited coverage of Contract Law and the insufficient precautious function of Product Quality Law. Contract Law only takes effects on the two sides of a contract, leaving consumers which belong to neither side out of its protection coverage. And Product Quality Law protects the consumers only on the condition that damage has already been done to them, so it can't actively protect consumers'interest in advance. Second, the product spectrum of recall is far too narrow. Till now, in China, only four kinds of product, i.e. automobile, toy, food, and pharmaceutical, have the system of product recall, while other kinds of products are left behind. Third, in the practice of supervision and administration, not one department can take entire responsibilities. Fourth, regulations haven't been made concerning the procedures of recall, which will undoubtedly take negative effect on China's product recall practice. Last, penalties are not severer enough concerning the product recall responsibilities; In the relevant regulations of product recall in China, penalties given to producers when they don't take responsibilities or unduly take responsibilities are too light, which can hardly push the obligor to actively fulfill the recall responsibilities.Part 4 is law contemplation on the completion of China's system of product recall. This part serves both as a summary of previous parts and as an assumption in completing China's current regulations. First, China should complete its legislation, enact Law of Product Recall, and stipulate the principles, law enforcement subject, recall standard, recall program, and legal responsibilities of the product recall system. In the aspect of legal responsibilities, penalties should be severer, and maxim fine of 30,000 RMB stipulated in Law of Legislation should be broken through to a higher limit. Relevant rules and regulations should also be made to form a complete legal system and protect the implementation of product recall system. Second, enlarging the coverage of products that can be recalled back, and including circulating products with undetected defects due to the limited technology level in the coverage of recall. Third, specifying the relevant administrative authority in charge, its function and authorization, and establishing prestigious and powerful product recall administrative authority. Fourth, completing the recall procedures; the author of this thesis suggests that the following procedures can be adopted concerning the completion of product recall procedure: 1. Petition and complaint on defectives; 2. Evaluation of defectives; 3. Recall plan designing; 4. Implementation of recall; 5. The final recall report. Finally, in establishing the system of product recall, China should exert severer punishment on law breakers, scientifically calculate legal cost of infringement, and raise the amount of the overall cost of infringement above that of its earnings, in order to encourage law breakers to complete the task of recalling detectives and discourage their activities of intentional concealment, supervision avoidance and fake recall, etc.In finishing this thesis, the author collects data extensively and offers the readers an all-round analysis and summary, hoping that this thesis could be based on a more reasonable foundation in order to make certain contribution in solving the problems in the construction of China's system of product of recall.
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