Products Infringement Proceedings The Burden Of Proof Allocation Study

Product tort liability is a special tort liability, when the product tort litigation happens, The burden of proof which both parties responsibilitied is different from the general tort. Our burden of proof theory is not perfect, especially when the theory applies to litigation, it often can not solve the problems in judicial practice. The burden of proof allocation of product tort liability in litigation relates to the combination of product tort liability entity law and proof allocation procedural law.Chapter one mainly is about the meaning,the history,the allocation models of the product tort liability and the burden of proof. First, the product tort liability follows the theory from the express theory and the implied theory. They have different ways of damage. Second, the burden of proof has double meanings.Chapter two mainly introduces the other countries and regions judicial practice in a product tort action.Chapter three mainly analyses our current product tort liability and the burden of proof in law. With a summary of that there are some shortages when the product tort took place. First, clear the theory, the range of subject of action, the burden of proof of fault, defects and the injusties. The proof of defence causality and punitive compensation. In our country there is lack of legal provisions.Chapter four mainly analysis and perfect. The burden of proof theory chooses the law of classification as the base and combined our country's substantive law. The subjects of action of product tort are between the direct Infringer and obligee. The direct Infringer includes direct producers and sellers, the direct obligee includes victim and victim's relations. The liability for wrongs is eliminated from direct producers and sellers. The fault standard is divided into integral standard and legal standard. Damage including the product itself damage. The cause-and-effect relationship includes cause in fact and cause in law. There is burden of proof in cause in fact but not in cause in law. The proof of defence causality need to improve from obligee and punitive compensation need fault.To perfect the burden of proof of Chinese products tort liability, need to be based on the the legal elements classification and the detailed analysis of product tort liability elements.