The Research On Tort Solution Of The Defective Product Injures Itself

For buyers to buy defective product,they will have the right of contract claim against sellers.However,there is a problem: if the sellers go bankrupt,then the buyers' claim will not be fully realized.According to the regulation of current laws,there is a difference between the product quality law and tort liability law.The former refused producers' strict liability for product infringement to buyers,while the latter from the literal interpretation allows the buyers to bring the product infringement claim against the producers.In theory,the scholars' views are inconsistent.In our country's judicial practice,the courts choose to bypass this contradictory analysis,directly adopted certain position.This thesis is divided into four major parts.The first part is to introduce the current situation,raise questions,and make comments.It mainly divides into four quarters.The first quarter clears the distinction between different "defects".It points out that only under the condition of “defective product self-harm” can there be room for discussing exception infringement remedies.The second quarter introduces the China's current laws and points out the contradiction between article 41 of the product quality law and article 41 of the tort liability act.It also organizes the different views of domestic scholars.The third quarter sorts out the judgments and finds that the court's decision in practice is mostly affirm the positive theory.At the same time there is confusion in the application of law.The fourth quarter comments on differenttheories and supports the corrected doctrine of restriction.The second part describes the exclusion principles of the relief of product's self-damage.It mainly divided into three quarters.The first quarter discusses that the product self-damage should be included in the scope of the contractual remedy.The second quarter concludes in the perspective of pure economic loss that the product self-damage should not be relieved in the tort law.The third quarter analyzes the prevailing regulations on comparative law,and generalizes that other countries exclude tort relief about product self-damage in principle.The third part demonstrates the exception of tort relief for product self-damage.It mainly divided into four quarters.The first quarter discusses the necessity of exceptional tort remedies for product self-damage from the perspective of the restrictions of contractual relief and the exceptions of pure economic loss relief.The second quarter introduces two main types of exceptional tort remedies for product self-damage on comparative law which is the German model and the American model.The third quarter describes the exception relief approach of expanding the relativity of contracts and compares it with exceptional tort remedies,finding the lack of the former and the advantages of the latter.The fourth quarter compares the two types of exception relief approach above and clears that China should adopt the American model.The fourth part analyzes the restrictive conditions of exceptional tort remedy for product self-damage in China.It mainly divided into three quarters.The first quarter clears that the article 41 of the tort liability act as a basic claim for buyers to sue for damage of product injures itself against producers.In addition,it makes a restrictive interpretation of the application of the clause in practice which excluding product self-damage in principle.The second quarter distinguishes different conditions about the application of exceptional tort remedy in the basis of the restrictive interpretation of the article.It clears that only the consumers have the right of tort claim to sue for product self-damage against producers in the situation which product injures itself in a sudden and disastrous way.The third quarter discusses the imputation principle of tort liability for product injures itself and considers that it shouldn't adopt strict liability but adopt presumption of fault liability.