Study On Civil Liability Of Product Recall

Product recall is a new development in modern law system, and the study results of academia regarding product recall are very productive. The innovation of this thesis is reflected in the following aspects:The method of comparative and empirical analysis are both the research approaches of this thesis and I choose the aspect of tort liability law rather than administrative rules and regulations to carry out my study on the civil liability of the product recall; Put forward the new ideas and concepts of product recall system through the research of this thesis; Different from the view that some scholars think the recall of defective products is the obligation in law while other scholars think it is the liability on the opposite, I think it reflects the dual legal attributes of duty and liability; Count the liability of product recall as the new development of the original product liability, and expound and prove the necessity to regulate the product recall under the tort liability law; Address the point that the post-sale duty to recall should be specific stipulated in tort liability law, and the form of undertaking the liability when disobeying such duty is compensation and the punitive damages shall be applicable spontaneously, and; Provide the constructive and feasible suggestion on judicial interpretation of the Supreme Court regarding the existing Article 46 and 47 provided in the Tort Liability Law of the PRC.This thesis is divided into four chapters apart from introduction and conclusion parts. And the content of each chapter goes as follows:Chapter One mainly introduces the basic and important concepts in product recall system. First, introducing the conception of the term "product" and "defective" and analyzing the distinctiveness of the conception of term "product" and "defective" provided in product recall system respectively. On the basis of the above analysis, drawing the conclusion that the term "product" and "defective" referred in laws and regulations relating to recall of the defective products have the different meaning and nature with the same terms stated in the original products liability theory, and the former has a distinct specificity, as the result of which couldn’t be interpreted with the original products liability theory. Second, illustrates the conception of "recall", both the domestic definition and the abroad definition are concerned, and finding that there are some problems in defining the term "recall" in our legal system. Further clarify the relationship between the "recall", "warning", and the "corrective actions".Chapter Two mainly illustrates the legal attribute of the product recall. First, introducing the theory of product recall is the obligation and the theory of product recall is the liability respectively; then analysis the two theories to point out the drawbacks of the former and illustrate some important questions of the latter; at last, addresses and illustrates the point that the recall of the defective products reflects the dual legal attributes of duty and liability. The post-sale duty to recall the defective products which specific to safeguard consumers’body and property safety as well as the public safety shall be deemed as the duty of guarding the safety of products produced by the producers after the selling. However, to the duty aspect, the duty of recall has not been explicitly stipulated in legal provisions and to the liability aspect, the liability of violating the duty of recall always induces the administrative liability at present, which is the mandatory recall responsibility in accordance with the administrative rules and regulations.Chapter Three mainly illustrates the post-sale duty under the tort liability law and punitive damages. Followed the previous chapter demonstrating the legal attribute of the product recall, this chapter further discusses the civil liability of product recall. By representing the post-sale duty rule in common law of American, especially the post-sale duty to recall provided in the Restatement of the Law Third, Torts:Products Liability and analyzing the product liability case regarding the post-sale duty to recall in USA to demonstrate the necessity of regulating this duty in tort-liability law. Also drawing to the conclusion that disobeying of that post-sale duty will lead to civil liability which is the new development of the original product liability theory under the tort law. What’s more, the form of undertaking such liability is compensation for the damages. And then, further introduces the current application situation about the punitive damages in our legal system, and illustrates the relationship between punitive damages and recall of the defective products and concludes that the application of punitive damages in civil liability of product recall is necessary.Chapter Four illustrates the current legislation about the product recall in China, and discusses the problems existing therein. From the view of civil law, accordingly, provides some constructive and feasible suggestion on judicial interpretation regarding the existing Article 46 and 47 provided in the Tort Liability Law of the PRC.