Tort Remedy For Losses Of Defective Product Itself

As far as the scope of product liability relief is concerned,Article 41 of the“ Tort Liability Law”,which was implemented in China in 2010,states that “producers shall bear tort liability for damage caused by defects in product.” In this regard,compared with the "Product Quality Law" implemented in 1993,the Legislative description of property damage caused by defective product lacks the restriction of "property damage other than defective product".This difference has led to the rethinking on the scope of damage for product liability in academic circles and judicial practice,which is,whether the losses of defective product itself is included in the realm of the relief under Article 41 of the“Tort Liability Law”.According to the theory of traditional civil law,the loss of the defective product itself should be adjusted by the rule of “liability for warrant of defects” under contract law(or the rule on breach of contract),and principally the tort law does not provide relief.Observing the legislation of the major countries of the world,it is also stipulated that such losses are remedied through contract law.However,with the development of product economy,there are many differences between infringement relief and breach of contract relief,which has led to a large number of cases of claiming compensation(the losses of defective product itself)for infringement.The comparative law provides a reference on the path for the remedy of the losses of the product itself under the Tort Law.The representative ones are the “continuingerosional damage theory(Weiterfresserschaden)” developed by the German Federal Supreme Court(Bundesgerichthof)and the “intermediate rule” developed by courts of American.In China,the representative theory of affirmative attitude to the tort law relief of defective products includes “infringement of ownership theory”,“accompanied loss theory” and “damages in dangerous way theory,damages in fiercely dangerous way theory”.As far as the study is concerned,the “continuing erosional damage theory” of German interprets the self-destruction of defective product as the infringement of buyer's product ownership.The core of this theory is to observe whether the product of the prime is valuable,but it cannot provide convincible reasons that for the parts suffers damages,they all caused by the initial defective part,why they are treated differently.The theory of "infringement of ownership" in China essentially advocates infringement law provide remedy for the loss of defective products itself indiscriminately.The essence of the“ Intermediate Rule” and " damages in dangerous way theory,damages in fiercely dangerous way theory " focused on the categorizing of this type of pure economic loss,so it can be fallen into the realm of the remedy of the Tort Law.This theory advocates whether the losses of the product itself can be remedied by the Tort Law depends on whether the damages caused by the defect in dangerous way or in fiercely dangerous way.But defect always means danger,besides the “fiercely dangerous theory” couldn't provide a proper reason for why the escalating of danger makes it different.For the China's “accompanied loss theory”,it advocates that when the losses of the product could be adjusted through Article 41 of the Tort Liability Law mainly depends on whether the losses accompanied by the injury of human body and the damages of the other property or not.But,this theory is too pragmatic.The losses of the defective product itself is essentially losses of the buyer's performance benefit,and is a violation of the seller's obligation to pay.It is not a violation of the rule under the tort law that “no harm to the unspecified person”.The relief on the tort law will invalid the contract law and interfere with parties' autonomy.Therefore,this article does not agree with the opinion that the losses of defective products themselves could be remedied through the tort law.