| Defective product from damage compensation system development until now, has become an effective, allocation of modern industrial society, the defective product caused damage risk of tool, it is not only a kind of incentive system, and a compensation system. Article 41 the tort liability act is considered to be about damage compensation at the core of the defective product, from the content of the letter of the law, we can see that the tort liability law article 41 is built on the basis of the "product quality law" article 41(1) above, but different, mainly reflected in the defective product itself damage can be included in the scope of tort compensation, at the same time due to the tort liability law the provisions of article 41 is not clear, a lot of time and need to refer to "product quality standard", so that the applicable law conflict appeared in the judicial practice and the consumer request damages other difficulties. Such as: what is a defect, what is the standard of identified defects, how to define the article 41 of the damage range.Tannin judge did so for the relationship between judicial and legislative a metaphor, "the law itself is like a piece of fabric, this fabric is not always smooth, law judges have to do is not to change the fabric material." so how to explain the tort liability law article 41 a crucial, and the explanation of the correct relationship to the interests of the consumer protection, is related to our country product liability responsibility to the interests of both sides in the balance.For the tort liability law article 41 of the defect, although our country product liability section and the tort liability act "product quality law" has not been on product defects, but scholars generally believe that defects can be divided into three types, combined with the defective automobile product recall management ordinance with article 3 of the American judicial practice for defect classification recognition operability, take to distinguish different defect in our country that has the rationality and the reality. As for the defects of standards, shall, according to different defect types apply to different standards.For the tort liability law article 41 of the imputation principle, although the tort liability law article 41 deletes the provisions on defense, but should be understood as a provision is the concept of justifications into different types of product defect, namely our country law does not exclude under strict liability, the application of the principle of fault, the deletion of justifications for is understandable, legal identity in China to distinguish the types of defects are under the premise of different defect types for different imputation principle. This is in accordance with the concept and goal of products liability in our country.The article 41 of damages in the tort liability act. In the case of the defective product causes a variety of damage, there is no scholars generally believe that because of the rules of the competition and the condition of the compensation is not completely, namely "product quality standard" the provisions of article 41 incomplete will not lead to compensation. But under the "product quality law" article 41, if the victim to completely fill the damage, must at the same time put forward for breach of contract damages and tort compensation claim, litigation practice in our country, if the victim to obtain full benefits, subject to the procedure, need to two different victims claims filed two lawsuits. Allow multiple damage cases, defect product itself damage infringement damage compensation is put forward, along with all the apparently claim damages for the victims is very beneficial. But for single defect product damage, the victim does not request tort damages. |
