Tort Liability Study For Violating Remedial Obligations

The variety of products accidents occur frequently in recent years, so that the majority of consumers sleepless nights. Tort Law was published in2009, defined in Chapter5of product liability. This is a significant advancement in the product liability legislation."Tort Law," Article46provides that:remedies."Found after the product was put into circulation flawed, producers, sellers should take timely warning, recall not timely or ineffective damage should assume the tort liability. Tort Law first time explicitly provides for the obligation to compensate the producers and sellers of products universality defects circulation, as well as illegal such obligations shall bear tort liability, significant. This article is to discuss the provision, is divided into four parts the universality defect of the product in circulation after the obligation to compensate tort liability.The first part focuses on "Tort Law," section46of the positioning of the entire legal system. Product liability legal system in China from122of the General Principles of the Civil Law provides for the principle to the "Product Quality Law of the People’s Republic of China to establish a system of product liability, to the" People’s Republic of China Tort Law, product liability provisions of Chapter The development process can be described from scratch, from simple to perfect. Compared with the previous law, many innovative before provisions Product Liability in Tort Law ". For the first time defined the spirit in the field of product liability damages, punitive damages, recall system, medical product liability and other issues. However, we should see, For these innovative legal provisions, general provisions are too general and general operation is carried out in practice, there are still many problems in the provisions of unknown depth explanation is required. Violating remedial obligations is the responsibility of the defective product.The second part focuses on the type of product defects. Restatement of the law divided the defect into manufacturing defects, design defects and warning defects. Standard of consumer expectations, risk-benefit analysis, and Baker dichotomy."Dichotomy" advocates. Its classification is the defect of the product into individual defects and universality defects two categories."Dichotomy" is built on the basis of "trichotomy". That manufacturing defects are individual risk exists only individual products, generally do not occur in a batch or model, relief should adopt the strict liability of the producer, and that specific consumer cases relief. Design defects and warning instructions defects universality risk exists in a batch or model of all products, with comprehensive coverage, it can be applied to an alert and recall system, universal relief that is not specific consumers. Therefore, product defects into individual defects and the universality of defects, more in line with the purpose of the presence of product defects and recall system in reality, this protection is not specific consumer interests.The third part focuses on the remedial obligations. The main types of remedial obligations are warning obligation, recall obligations and other remedial obligations. Warning obligation, the correct use of a product and the product itself dangerous mark, tips and warnings obligations of producers and sellers of products to consumers. Warning signs and instructions are the warning obligation to fulfill three ways. Based on alerts generated time point of view, can be divided into pre-warning obligation and after-sale warning obligation. Violating universality defects of product warning obligation belongs to aftermarket warning obligation. Recall obligations divided into active recall and mandatory recall Tort Law article46belongs to active recall. Other remedial obligations generated warning obligation and recall obligations can not be reached "timely" and "strong" requirements. Remedial obligations generated conditions there are two:First, the "discovery" or "should have discovered" a defective product defects found after the product was put into circulation. According to the law violating Remedial obligation contains the two forms.:"Not to take timely remedial measures" or "ineffective remedies"The fourth part focuses on tort liability study for violating Remedial obligations. The constituent elements of tort liability contains:the universality defects; producers or sales in violation of the obligation to compensate the products universality defects circulation; defective product has caused damage to the victim; the causal relationship between producers, sellers do not as damage. The main products in violation of the obligation to compensate tort liability for manufacturers and sellers. And defective products in general tort liability, breach of the obligation to compensate the provisions of section46of the Tort Liability Principle applies fault liability. Exemptions, the exemption provided in Article41of the Law on Product Quality "the subject of one of the development risk in this can not be the subject matter of the violation of the obligation to compensate tort liability disclaimer. Tort liability is still a breach of the obligation to compensate the defective product to tort liability. But compared with defective products in the general case of infringement, there are also quite different. General defective product tort system meaning that the ex post compensation, usually tort cause damage occurred, compensation to victims. Breach of the obligation to compensate the tort liability system intended lies in prevention, usually before the damage did not occur through remedial actions to avoid. Tort liability because the violation of the obligation to compensate the manufacture and sale of those actively remedial action not taken responsibility for behavior damages arising tort liability and general product because the product has inherent risk, it is the responsibility of the product damage. The former belongs to the acts of responsibility "while the latter belongs to the" substance "of responsibility.