Study Of Manufacturers’Post-Sale Duties By Interpreting The Law

Traditional product liability limits the producers and sellers’duty of care to a series of links, such as design, manufacture, pre-warning and so on, before the product is put into circulation. With the further extension and expansion of the theory of product liability law and judicial practice, the producers and sellers’duty of care is no longer limited to the link before the product is put into circulation. After the product is put into circulation, producers and sellers still bear certain duty of care of the product defects. Article46of the Tort Law says:"Where any defect of a product is found after the product is put into circulation, the manufacturer or seller shall take such remedial measures as warning and recall in a timely manner. The manufacturer or seller who fails to take remedial measures in a timely manner or take sufficient and effective measures and has caused any harm shall assume the tort liability."This is the first time that manufacturers’post-sale duties are established in the form of law. Manufacturers’post-sale duties can reach double-value targets of "personal justice" and "public safety". There is legitimate legal basis of the manufacturers’post-sale duties. It is both economic and justified that the producers and sellers bear the post-sale duties.Article46of the Tort Law says that warning and recalling happen when any defect of a product is found after the product is put into circulation."Defect" should be decided by whether there is an unreasonable risk or not, which is the basic criterion, while national or industrial standards should only be used as a reference;"Discovery" should not be limited to the de facto but also includes the "should have discovered" situation; There is no contradiction between the post-sales duties and development risks defense, both of which have their own role of the field; there may also be other restrictive conditions on the occurrence of after-sales warning obligations. Recall, which is a measure for systemic defects, is further measures than after-sales warning. In different circumstances, producers and sellers may take different obligations in the recall. The occurrence of the duty of recall has two conditions:the product has defect which is unreasonable and serious; recall is necessary, because there are no other measures to eliminate the occurrence of the danger.Infringement in violation of the post-sale duties is different from general product infringement. Also using the principle of strict liability to regulate post-sale duties will put both manufacturers and sellers in a very difficult situation. So combined the Comparative Law with Article46of the Tort Law, it is more reasonable to use the principle of fault liability."Failing to take remedial measures in a timely manner or take sufficient and effective measures" should be defined based on the specific facts of the case by using the "reasonable person" standard, and making a comprehensive analysis of the scope, methods, the degree of actual effects of warning and recall. The causal relationship between elements of the infringing is not particular compared with other types of tort. Just take causal relationship rules to be determined."Harm" includes "obstruction and danger", which says in Article45. The direct damage caused by a product defect and the "harm" has both connection and difference. The direct damage caused by a product defect is the first damage, but the harm is the secondary damage or expanding damage caused by the violation of the post-sale duties. The compensation should be all damage caused by the Omission, including the loss of product itself. The direct damage caused by a product defect belongs to the Article41-43adjustment range, for this part of the damage, the consumer can either request damages for default, or request the general tort damages. Article46is established as tort liability of producers and sellers who fail to fulfill the post-sale obligations. Violation of the post-sale obligations needs to bear civil liability, but this does not exclude the producers and sellers’administrative responsibility and criminal responsibility.If the producers or sellers do not alert or recall deliberately, we can apply Article47of the Tort Law by analogy. But the determination of the amount of punitive damages should be prudent.