On The Relief Of Defective Products Themselves

Damage to the defective product itself, also called "harm to the defective product itself,"product injures only itself, which is a controversial problem of the damage compensation scope of product liability, is related to the scope of application of Contract Law and Tort Liability Law.After the promulgation and implementation of the Tort Liability Law,the uncertainty of the legislation caused an extensive discussion in the academic field, judicial judgment made different judgments on this issue,therefore it is necessary to clear the foundation of remedy.Damage to the defective product itself means the defect of the product causing disbenefit to the buyer, not limited to the substituted expenses of the product's loss,which belongs to loss of performance interest.To compensate the damage to the defective product itself is to carry out the principle of good faith and to realize fairness and justice. Foreign countries such as the UK,the United States,Germany and France reject to apply the product liability for the cases of the defective product injuring itself,they apply the negligent liability for the cases or set up the system to breakthrough the contract privity to apply for the contract liability. Civil law academic circles in China holding views that the Article 41 of the Tort Liability Law should be applied exists some problems such as the logical inconsistency,neglecting the constitutive requirement damage,not accord with the legislative purpose of the Tort Liability Law,we should apply the liability for breach of contract.I suggest improve our current system:firstly to interpret the Article 41 of the Tort Liability Law, the application scope of it is unsuitable to be explained extensively,it should keep consistent with regulations of Product Quality Law. When the defective product only injures itself or the collateral damage occurs,harm to the defective product shouldn't apply to the Tort Liability Law.When the defective product only injures itself,we should apply the contract law to claim the seller's liability for breach of contract;secondly explaining the Article 122, under the situation of injuring performance,personal injury and mental damage can obtain relief from the contract law.When the defective product causing personal injury,damage to other property and damage to the defective product itself,it leads to concurrence of injuring performance and product liability for the sellers, the victim can get full compensation based on injuring performance while can't obtain full compensation from the seller and the producer based on the right of claim of product liabiliry,the claim of the request polymerization can make up all damages but it is not economic and efficiency in lawsuit;thirdly as the privity of contract,in order to convenient the direct buyer or the indirect buyer claim the compensation of the damage to the defective product itself from the producers,I suggest refer to American system of third party beneficiaries of warranties express or implied to endowed with the direct right of claim to breakthrough the contract privity.