Research On The Identification Of Product Defects In Product Liability

Product liability as a special type of infringement,product defects constitute the core concept of product liability,but there isn’t any interpretation of product defects in the Tort Liability Act.In this case must quote the "Product Quality Law" 46 Relevant provisions of the article.This article has the product’s unreasonable danger and violation of statutory mandatory provisions as the double standards for identifying product defects.Based on the application of the article,the referee is overly dependent on the appraisal in practice,and does not fully identify the specific defect type,resulting in damaging the victim’s interest.On the basis of rethinking the double recognition standards,it is necessary to incorporate the violation of the statutory mandatory norms into the unreasonable danger through the methods of system interpretation,purpose interpretation and comparative law interpretation,and further seek the ambiguity of the irrational danger.From the perspective of comparative law theory,the consumer expectation standard,the risk utility standard,the dichotomy standard,etc.have evolved in the judgment of the unreasonable danger of the product.The development of a series of standards has experienced from favoring the consumers and the users of products to focus on protecting the producers and sellers and then the balance of interests between the both.This has provided great inspiration for the identification of product defects in China.Although the relevant legislation in China does not distinguish the types of product defects,in theory we can roughly divide product defects into manufacturing defects,design defects,warning defects and tracking observation defects.The type analysis of product defects should be based on the comparative method,combined with the experience of China’s practice referee.First,for the determination of unreasonable hazards in manufacturing defects,it is first applicable to violate the established design standard rules,that is,the products do not meet their own design standards,national standards or industry standards,and directly identify defects in the products.Secondly,in the case of loss of the product,the principle of product failure can be applied,and the existence of defects is estimated by indirect evidences.Finally,when there is no established standard for the product,the consumer expectation standard can be considered,that is,whether the product meets the expectations of the general consumer for safety.Identifying manufacturing defects,the product’s own design standards,national standards,industry standards,use of products,the usage time of products and other factors should be taken into accounted.Second,in the identification of design defects,in addition to the application of consumer expectations standards,risk utility standards can be introduced,that is,the economic analysis method is used to compare the cost and benefit of redesigning products to determine whether there is a more reasonable alternative design program.Identifying the design defects,the functions of similar products,the warning instructions attached to the products,the foreseeable safety of the products,and the price of the products should be considered.Third,the identification of product warning defects is basically applicable to the principle of fault liability,that is,the violation of the statutory warning obligation by producers and sellers,without warning or insufficient warning,causing damage to others,and the consumer’s expectation standard can be applied in the specific determination.The time of the product warning,the location and method of the product warning,the object of the warning,the content and necessity of the warning,and the adequacy of the warning should be considered.Fourth,product tracking and observing defects are the least in practice.When determining product tracking defects,comprehensive judgment criteria can be applied to consider,including the time when products are put into circulation,the possibility of damage caused by products,the development level of science and technology,and the ability and cost of taking remedial measures.In addition,the identification of product defects is based on the distribution of burden of proof.There are differences in the distribution of burden of proof of product defects in practice.Some courts believe the victim should prove the existence of defects in products and the normal use of products,some courts considered that the producer and the seller prove that the product defects don’t exist and the victim improperly uses the product to cause damage.In addition,when the product defect cannot be ascertained,the court directly applies the fairness principle to make the judgment.In this regard,with the theory of burden distribution of proof and comparative law interpretation,it is concluded that the victim should prove the existence of the product defect,and the producer or seller proves that the victim improperly uses the product,and when the product defect cannot be ascertained,it should not apply to the principle of fairness,the preliminary burden of proof should be applied only when the victim proves the defect of the product,and try to avoid the situation where the product defect is not clear.