Clarification Of The Market Share Liability And Its Application In China

Whereas the massive torts which due to product defect occur much morefrequently in China, the injured parties in some cases not only fail to identify thevirtual injuring party for many reasons including numerous infringers et al, but alsocannot list all the infringers because of some faults which will not be attributed to theinjured parties themselves. In the both circumstances, as the absence of rescue method,the injured parties may not be compensated. However, in the USA, a rule named asthe market share liability will be adopted in such cases. For the sake of injured parties’interests, it seems necessary to establish similar rules in China.As to the concrete measures of rules establishment, the first part of this thesistakes steps in the analysis of the origin and the development of the market shareliability. Firstly founded in the Sindell v. Abbott Labs., the market share liabilitytheory triggered wide arguments. In the subsequent similar cases, many courtsadopted the theory while some of them denied its adoption. Through these cases, thisthesis tries to find the value orientation of the market share liability.Then, the second part of thesis embarks on the content of the market shareliability. In fact, the market share liability was an extension of the "alternativeliability" in the American law; meanwhile, the "alternative liability" was highlyidentical to the "joint dangerous action" in the China law. With the comparationbetween the three rules, this thesis tries to clarify the theoretical basis for the similar rule in the China law.As injustice may occur between the injured party and the infringers whenconfronting the absence of rescue method for massive tors in China, it is theresponsibility of the court to break through the traditional tort law theory and takesteps with the notion of Fairness and justice. Accordingly, in the last part, this thesiswill analyzed the difficulties of the foundation of the market share liability in China,and then present many propositions, hopefully may it be beneficial to the problemsolving in massive tort cases.