The Market Share Liability In The United States And The Enlightenment To China Tort Law

The market share liability comes from the American tort law, is the rule of the United States courts in the DES case. In the case of DES, the biggest dilemma is the victim can not to prove which is the production enterprise caused the actual damage, thus can not satisfy the causal relationship which is a component of traditional tort law. The U.S. states court in trial of DES cases have tried to use some existing theories to solve the predicament of the causal relationship, such as alternative liability, enterprise liability, concert of action. But the court ultimately considers that these theories are not suitable for DES cases. In order to safeguard the interests of the victim, market share liability is created which requires the plaintiffs need not to prove the actual manufacturers. The defendants take responsibility in accordance with the market share of the product. The U.S. states courts have all kinds of market share liability. The market share liability theory is a major challenge to the traditional tort law. Since we entered the new century, with the development of technology, there are many mass tort cases, example "long dan xie gan wan" case and "melamine" case. The biggest characteristic of this kind of tort case is that the causal relationship is not clear. In face of such infringement cases, should we be stick to the traditional tort law or break through the traditional causal relationship to safeguard the victims’ legitimate rights? Due to the limitations of the legislation in our country, at this stage in handing such cases, we are mainly based on the administrative power. However, with the development of legal society and promotion of the citizen’s law awareness in our country, judicial relief should be the main way to solve these cases. The market share liability theory has a reference value for solving the mass tort in our country. So China needs to use this theory to perfect our tort law system. This theory has a large controversial in causation and basis of liability, this paper discusses causation principle of the market share liability theory, and determine that its basis of liability is damage. The market share liability theory can not only protect the interests of the victim, but also balance the interests of the plaintiff and the defendant effectively. It is very important to perfect our tort law and beneficial to the improvement of our country’s legislation level. This paper is divided into five parts.The first part mainly introduces the meaning, characteristics and applicable conditions of the market share liability theory, and American third edition of tort law:product liability how to description it.The second part mainly introduces the origin and development of market share liability theory in the American law. The California Supreme Court in 1980 trial Sindell v. Abbott labs is the first application of market share liability. After that at least eight states use the market share liability theory. Typical cases are Wisconsin’s Collins v. Eli Lilly Company, Washington’s Martin v. Abbott labs. In 1989, the New York State Court of appeals in Hymowitz v. Eli Lilly made the market share liability theory have a new development.The third part mainly comparison the market share liability theory and relevant theory. For example the continental common risk theory and alternative liability and enterprise liability and concert of action. They are a link to each other but they are different from each other.The forth part mainly introduces the special analysis of the market share liability theory. This part mainly deals with the theory of causation and the basis responsibility of market share liability. About the causal relationship, there are the theory of the correction of justice, the whole proof theory. There are many different views on the market share liability based on the risk or damage.The fifth part mainly introduces the enlightenment to China tort law. This part mainly demonstrates the necessity of introducing market share liability theory, the obstacles of introducing market share liability system in China and how to apply it in our country.