Study In Post-marketing Alert And Recall System Of Defective Products

In recent years, the consumer’s personal and property damage due to productdefect events continued occur in our country, product responsibility issue isincreasingly obvious.The “SanLu” milk powder incident, Toyota recall cases, IKEA Curtains recallcases and so on are all one reflection of a series problem, the problem with productliability legislation in China, which is that the aftermarket products defect liability hasa lack of authoritative legal provisions, and only in limited scope of objects as therelevant provisions of food, toys, and medicines.According to Tort Liability Act, which was born at the end of2009, it dedicatesone whole chapter to the provisions of product liability, at a total of seven regulations.As early as before the enactment of the Tort Liability Act, there are many one-lineregulates and single laws have made regulations on product liability provisions.Accept from "Product Quality Law", we still have "Food Safety Law"(2009), and the"Drug Administration Law”(2001), the Agricultural Product Quality Safety Law(2006),“Administrative measures on the health food"(1996). After the enactment ofTort Liability Act, in accordance with the principle of the priority of new law over oldlaw, and the priority of law at the higher level over the lower level, when there is aprovisions conflict, the Tort Liability Act provisions shall be applied. If Tort LiabilityAct does not provide particular regulations, then it shall still be dealt with inaccordance with the provisions of the special law.The defective product post-marketing alerts and recalls liability is a specialproduct liability, it did not take the usual strict product liability. According to TortLiability Act46,"Who did not take timely remedial action or remedial measures areineffective and causes damage, shall bear tort liability." The author believes that, thisis the attitude of China to take the fault presumed responsibility in the warning andrecall obligations. Producers should take responsibility for the damages caused bybeing not fulfill their alerting and recalling obligations, meanwhile, they can useevidence to the contrary to counter so they can get exemption. In this production-consumption relationship, the manufacturer is undoubtedly on the dominant position,in this case, the provision is reasonable and easy to operate.However, this exemption conditions in Tort Liability Act is disobey to the"Product Quality Law". According to Product Quality Law, Manufacturer could invoke the legal exemption provision that “when products into circulation the defectcaused damage are not yet exist, as well as scientific and technological level could notfind the defect exists “. But in accordance with the provisions of the Tort Liability Act,this exemption condition chance has been greatly reduced. Even if the defectiveproduct is not yet exist while it into circulation or the level of technology can notdiscovered the defect yet, the manufacturers also have the follow-up observations,warning and recall obligations. Only making the obligatory can make the clause ofthis exemption. Improving of the defective product warning and recall system is ageneral trend. In the current situation, for this transplantation legal system there arestill many theoretical and practical issues need to be addressed.