The Study Of Product Liability System Of Tobacco Industry To Smokers

As tobacco products appeared, tobacco industry promoted tobacco products through a variety of marketing strategies in an attempt to improve the market share of tobacco products and obtain enormous economic benefits. The effect of these strategies is obvious:the number and age span of smokers are continually expanding. In the1960s, science researches proved that tobacco products contain a variety of cancer-causing substances, greatly increasing the rate of cancer of smokers. Later, more and more medical researches showed that tobacco products can lead to smokers with various diseases, and the nicotine is addictive, making smokers being addicted to smoking. At present, the use of tobacco products has become the leading cause of preventable death in the world. The harm of tobacco products is so huge, whether to involving defects of product so as to cause the product liability of tobacco industry to the smokers? The judicial practice of the United States has experienced three waves of Tobacco Litigation, and there are a lot of tobacco products liability litigations. Defects of tobacco products, the causal relationship between smoking and smokers and the tobacco industry’s defenses are all discussed in the judicial precedents. Also the trend that victims win and get compensation is evident. However, in the judicial practice of our country, tobacco products liability litigation has not appeared, and the theorists are also not too much involved in the issue. Moreover, tobacco products are causing more and more damages to smokers. Therefore, The author chooses this topic, hoping that this study will clarify the legal relationship in this area and provide some relief for the smokers who are damaged.This paper uses the comparative method, on the basis of the research of existing theory, legislation and case law in the United States, combined with provisions of product liability in our Product Quality Law, Tort Liability Law, to explore the product liability of the tobacco industry to the smokers. In addition to the introduction and conclusion, the paper is divided into four parts. With the thread of the constituent elements of the product liability, this paper analyzes the conditions of the establishment of product liability of tobacco products, respectively from the product defects, damage and causal relationship, then discusses the question of responsibility of tobacco industry, such as liability reduction.In the first part, in the definition of tobacco products, the author clarifies that this kind of product belongs to the regulatory scope of the product liability law, introducing the main composition of tobacco products and a variety of harms, especially pointing out the addictive characteristics of nicotine. Tobacco products is a kind of special products. After the analysis of tobacco products, on the basis of comparing imputation principles of national product liability, the author explicitly points out that, in the product liability of our country, producers bear strict liability, sellers bear fault liability, and suggests that we should adopt the legislative experiences of the United States, applying different imputation principles in different defects, that is, strict liability is applied in manufacturing defects, fault liability is applied in design, warning defects.In the second part, first of all, the author compares the definitions and cognizance of foreign product defects, approximately forming two modes:the connotation of "unreasonably danger" in the United States, using three standards for defect identification; the connotation of "lack of reasonable safety" in The European Union and other countries, listing some specific factors in the definition for defect identification. However, our country is insufficient in the definition and cognizance of product defect. The author suggests that in our country, the connotation of product defect is "unreasonable danger", referring to the interpretation of the United States’law, the cognizance of defect should learn from the integrated approach of the two modes. Using defect types as a framework, the author analyzes manufacturing defects, design defects and warning defects of the tobacco product in detail. From the existing case law of the United States, the "inherent danger" of tobacco products is not a manufacturing defect. There is no a more reasonable alternative design for tobacco products, so the design of tobacco products is not defective. According to the warning of "smoking is harmful to health" in our country, the author reasons the warning is not sufficient from the content, form and position of the warning. Moreover,"legal standard" is not decisive standard of the presumption that the warning is not defective.In the third part, the author analyzed the damage and causality. The damages caused by tobacco products are special. In addition to diseases, death and other general personal damages, the author also introduces the loss of chance. The compensatory damages caused by the loss of chance include the property and non-property damages the victims suffer. In the calculation of damages, Difference Method is used in the diseases, death and other personal damages, and the specific way can learn from the stipulation in Judicial Interpretation of Damages for Personal Injuries and Judicial Practice. The calculation method of the loss of chance is mainly the proportional compensation, sometimes the comprehensive discretionary method, and probabilistic data are used in the specific calculation. In the product liability of tobacco products, the recognition of causality is very difficult. In many American jurisprudence, the plaintiffs were established losing without proving causality. The author introduces the loss of chance to expand the scope of the injury, so as to alleviate the plight of proving causality. The theory of market share can be used in determining the responsibility of the specific responsible persons.In the forth part, the author mainly discusses the tobacco industry’s liability, including the defenses, the main responsibility and the way of accountability. The primary defense of tobacco industry to smokers is assumption of risk. The defense of assumption of risk of smokers is not certain, involving the effects of minor’s agree, nicotine addiction and other elements hinder the establishment of defense. With the establishment of defense of assumption of risk, the judge can apply the "comparative negligence" to allocate responsibilities between the parties. The victims’fault is a mainly applicable defense tobacco industry can effectively refer to. In a few cases, there is also the defense of fault of the third party. In our country, tobacco industry mainly refers to the tobacco industrial and commercial enterprises. In the way of accountability, tobacco industry mainly uses the compensation for losses to make up for the damages to smokers.