Product Tracking Observation Obligation Research

In order to correct the imbalance of interests under the defense of development risk,legislators put forward stricter requirements for producers and sellers,that is,they are required to bear the obligation of tracking and observation and the tort liability arising from the violation of this obligation.The establishment and development of product tracking and monitoring obligations play an important role in protecting consumer safety and improving product quality.However,the provisions of this system are relatively one-sided.In judicial practice,there are disputes on how producers and sellers can more fully perform this obligation,the conditions for the establishment of product tracking and observation obligation,the imputation principle of tracking defect liability and the burden of proof.Taking the obligation of product tracking and observation as the research object,this paper makes a systematic study on the content of the system,in order to promote the improvement of the system and solve its disputes and differences in judicial practice.This paper analyzes and discusses the product tracking and observation obligation from three aspects:The first part is "basic theory of product tracking and observation obligation".Based on the analysis and introduction of the connotation and normative source of product tracking and observation obligation,this paper expounds the theoretical basis of product tracking and observation obligation from three aspects: risk responsibility theory,communication obligation theory,justice and order value of law,and then points out that product tracking and observation obligation can ensure the personal and property safety of consumers,promote enterprises to strengthen the concept of product quality Finally,it defines the legal nature of the obligation of product tracking and observation,and believes that it is more reasonable to belong to the first obligation.The second part "content and performance of product tracking and observation obligation",analyzes and discusses the content and performance of product tracking and observation obligation from two aspects: tracking and observation of products put into circulation and response to defective products.The former expounds the necessity of producers and sellers to track and observe products,and the performance methods of tracking and observation,including active tracking and investigation of products,It also includes responding to consumers' complaints and feedback.The latter expounds the way of responding to defective products after discovering product defects,including stopping sales,warning,recall,improving products,destroying necessary products and other remedial measures.The third part is "violation of product tracking and observation obligation and its responsibility".Firstly,it identifies the violation of product tracking and observation obligation,and believes that the violation of product tracking and observation obligation includes three situations: failure to conduct tracking and observation,failure to take remedial measures and improper remedial measures;Then it analyzes the legal liability for violating the obligation of product tracking and observation from the two aspects of the nature of liability and the principle of imputation.It is considered that the liability for tracking and observation defects belongs to the category of product liability,and the principle of fault liability should be adopted,but in the distribution of the burden of proof,the producer and seller should prove that they are not at fault;Then it analyzes and discusses the product defects as the basis and premise of liability composition;Finally,it clarifies the responsibility of violating the obligation of product tracking and observation,and holds that the producer and the seller are the subject of responsibility,and they are not really joint and several liability,so they can recover from each other.From the perspective of exemption,it distinguishes the defect liability of product tracking and observation and the defense of development risk,and holds that they can be parallel and there is no contradiction in application.