An Empirical Study On The Applicable Law Governing Product Liability Involving Foreign Elements

Under the promotion of economic globalization and rapidly development of e-commerce,China's foreign exchanges and foreign trade have also made great progress.The rising trend of foreign product liability disputes,emerging new types of foreign product infringement cases.The Law of the PRC on Choice of Law for Foreign-Related Civil Relationships(hereinafter referred to as Law on Applicable Laws)promulgated in 2010 sets conflict norms for the application of laws on foreign-related product liability for the first time(namely,Article 45).Thus,how about the judicial application of Article 45 of the Law on Applicable Laws in the past 10 years? What are the problems existing in the reality? Through important websites and major legal databases,the author has collected and screened 49 cases that have problems in the application of foreign product liability laws.Through sorting out and analyzing these 49 adjudicative documents,the author finds that there are two prominent problems in judicial practice regarding the application of Article 45 of the Law on Applicable Laws,that is,the identification of China's foreign-related product liability: one is the qualitative problem of the foreign-related product liability relationship,and the other is how to identify the "place of damage" in Article 45.Regarding the identification of foreign product liability relationship,the author found that 23 cases had errors in the determination of foreign nature,5 cases had errors in the identification of product liability relationship.On the issue of foreign-related identification,the author believes that the court should analyze it from the aspects of subject,object and legal facts.Specifically,the court should examine and identify the foreign-related nature of the subject and object based on the "different selling modes" in the network product liability cases.Attention should be paid to distinguish the two concepts of product defects and product defects to avoid confusing product liability relationship with contract relationship about the determination of product liability relationship.Regarding the "place where the damage occurred" in Article 45 of the Law on the Application of Law,in our country's judicial reality,the courts have either determined the place where the event occurred or determined the place where the damage results occurred,so the application of the law seems unsystematic and arbitrary.In the way of comparative law,there are two modes to identify the word: one is represented by South Korea's Revised Private International Law of 2001,and the other is represented by Rome II.The author tries to discuss the legislative reasons and purposes behind these two modes,analyzing the advantages and disadvantages of different identification modes.Considering the current judicial reality,substantive law policies in our country,from the perspective of simplifying judicial tasks and protect the weak,the author thinks that when the place where the damage occurs is directly identified as the place where the damage results occur,on the one hand,it is more conducive to the balance of the protection of the interests of consumers and producers in our country;on the other hand,as the place where the damage results occur is more easily determined than the place where the damage acts occur,it is also conducive to saving the judicial cost of the court.