摘要(Abstract)：
现代商品的产销过程变得非常复杂,乃至于产品的缺陷及其责任难以锁定。如何通过规范产品责任而保护消费者的权益成为近几十年备受关注的问题。在欧盟范围,有关产品责任指令统一调整并确立了缺陷产品致害的严格责任原则,迄今积累了丰富的司法见解及学术研究成果。相比之下,中国对于产品责任系统性立法、司法和学术研究起步较晚,有关制度应对产品责任纠纷的法律依据交错繁杂,往往需要诉诸不同法规一并解读释法,存在诸多不足之处,亟待完善。本文运用比较研究、案例分析、法律解释等方法,试图对两大体制下的产品责任规范进行深入系统地评析,?以期能对完善现有制度有所启发。
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作者(Author): 王薇;黎慧华;
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参考文献(References)：
- 1Council Directive of July 25,1985 on the approximation of the laws,regulations and administrative provisions of the Member States concerning liability for defective products.About the transposition of this legal regime for the Portuguese legal order,MONTEIRO,2005:245-262;RAPOSO,1992:5-28;SILVA,1999.
- 2Without further clarification all indicated articles belong to Directive 85/374/CEE.
- 3On the market share liability doctrine and other theories aimed to attribute responsibilities in this scenario,see RAPOSO,2013:4315-4317.
- 4About this issue VOLLEBREGT&KLMPER,2011:6-7.
- 5Case C-127/04 Declan O’Byrne v Sanofi Pasteur MSD Ltd,formerly Aventis Pasteur MSD Ltd.and Sanofi Pasteur SA,formerly Aventis Pasteur SA[2006]ECR I-01313.
- 6SILVA,1999:607.
- 7Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999 amending Council Directive 85/374/EEC on the approximation of the laws,regulations and administrative provisions of the Member States concerning liability for defective products.
- 8HOFFMANN&HARDER,2010:5-54;STRAUSS,2012:267-319;WONG,2013-1014:243-284.
- 9SILVEIRA,2010.
- RAPOSO,2013:4275-4339 and WARE&CASTLE,2005:217-224.
- Case C-402/03 Skovg v Bilka Lavprisvarehus A/S and Bilka Lavprisvarehus A/S v Jette Mikkelsen and Michael Due Nielsen[2006]ECR I-199 260.
- Discussing this issue,ARBOUR,2013:211,212.
- Case C-495/10 Centre Hospitalieruniversitaire de Besan on v Thomas Dutrueux and Caisse Primaire d’assurance Maladie du Jura[2011]ECR I-14155.On this case EXTER&FLDES,2014:74-76.
- A critical perspective on the definition provided by the Directive in WARE&CASTLE,2005:218.
- The criterion to have in consideration is the consumer’s expectations,in the sense of the general and abstract consumer,not the ones of the particular injured consumer(SILVEIRA,2010:141).See also SILVA,1999:635 and WILLIAMSON,2003:4-5.
- Richardson v LRC Products[2000]Lloyd’s Rep Med 280.
- SILVA,1999:655-673.
- SILVA,1999:660.
- SILVA,1999:633-653.
- SILVA,1999:646.
- The impossibility of detecting the defect,as referred in article 7,must be an absolute one,disregarding eventual technical difficulties,added costs,or even the fact that the other producers do not usually track that particular defect,since the decisive criterion is the most advanced state of science and technology(SILVA,1999:510-512).
- In that case the injured party will still be able to sue the producer,but only under the general regime of subjective responsibility(except in the legal orders that included developmental defects in the scope of the Directive,as expressly admitted by article 15/1/b).
- Note that in the framework of this juridical liability none of these argumentations can be seen as culpability exclusions,since in this context the requisite of culpability,or the lack of it,is irrelevant.
- RAPOSO,1992:21.
- However,the limitation period of ten years established in article 11 does not mean that all damages occurred during this period are considered as the result of pre-existing defects at the date of merchandizing.
- SILVA,1999:719.
- FONDAZIONE ROSSELLI,2002:19 ff.
- WARE&CASTLE,2005:220.
- ARBOUR,2013:207,208.
- “The DRC Development Risk Clause was defined in order to establish a satisfactory compromise between the need to stimulate innovation and consumers”legitimate expectations for safer products’(FONDAZIONE ROSSELLI,2002:3).
- However,this argumentation only can succeed when the norm’s content is specific enough to dictate a particular mode of production.
- SILVA,1999:651-652.
- See,e.g.,Provisional Regulations of Total Quality Control in Industrial Enterprises(issued Mar.10,1980),Provisional Regulations for Licensing the Production of Industrial Products(issued Apr.7,1984);Trial Measures for the Supervision of Product Quality(issued Mar.7,1985),Provisional Regulations for the Administration of Quality License for the Export of Electrical Products(issued Feb.20,1986).
- The Regulation on the Quality of Industrial Products(issued Apr.5,1986).
- Art.122:“If a product of substandard quality causes property damage or physical injury to others,the manufacturer or seller shall bear civil liability according to law.If the transporter or storekeeper is responsible for the matter,the manufacturer or seller shall have the right to demand compensation for its losses”.It was further clarified by the Opinion of the Supreme People’s Court on Issues concerning the Implementation of the General Principles of the Civil Law”(issued Apr.2,1988):“Where the use of a substandard product causes personal injury or property loss due to a consumer,user,or another person,the victim may demand compensation from the manufacturer or seller”(Art.153).
- The Chinese lawmakers adopted this American term.
- Cf.Article 5 TLL.
- The Product Quality Law of the People’s Republic of China(adopted at the 30th Session of the Standing Committee of the 7th National People’s Congress on February 22,1993,and amended at the 16th Meeting of the Standing Committee of the 9th National People’s Congress on July 8,2000).
- See,e.g.,YANG LIXIN,2011:562 and WANG LIMING,2011:243.
- Id.
- See,e.g.,ZHANG XINBAO,2010:244.
- The Food Safty Law of the People’s Republic of China(adopted at the 7thSession of the Standing Committee of the 11thNational People’s Congress on February 28,2009 and came into force as of June 1,2009).
- The Pharmaceutical Administration Law of the People’s Republic of China(adopted at the 7thSession of the Standing Committee of the 6thNational People’s Congress on February 28,2001 and came into force as of December 1,2001).
- Regulation on the Supervision and Administration of Medical Devices(issued Apr.1,2000).
- Agricultural Product Quality Safety Law of the People’s Republic of China(adopted at the 21thSession of the Standing Committee of the 10thNational People’s Congress on April 29,2006 and came into force as of November 1,2006).
- According to the Standardization Law of the People’s Republic of China(adopted at the 5thSession of the Standing Committee of the 7thNational People’s Congress on December 29,1988 and effective as of April 1,1989)and Regulations for the Implementation of the Standardization Law of the People’s Republic of China,the product standards are set by the State,specific trade sector,local government and enterprises.For further details,see CHEN LU,2010:21-22.
- Liu Yunsheng,2011:188.
- See,e.g.,Chen Xiao,2013:381,et seq.and Zhang Xinbao,2010:248,et seq.
- Judgment No.51 made by High People’s Court of Yun Nan Province on March 31,2008.
- See,e.g.,YANG LIXIN,2011:556,et seq.,WANG LIMING,2011:246,et seq.,and ZHANG XINBAO,2010:248,et seq.
- Chen Xiao,2013:389,et seq.,containing product liability cases regarding design,manufacture and instruction defectiveness.
- Judgment No.16681 made by People’s Court of Pudong,Shanghai on May 10,2006.
- Xiang Li and Jigang Jin,2014:286.
- Judgment No.34 made by High People’s Court of Shanxi Province on June 7,2010.In this case,the judge opined:“Unreasonable danger”is the standard upon which we determine the product defect.However,if the product does not meet the national or sectorial standards safeguarding personal or property safety,the court may immediately decide that the product is defective;if the product meets the said standards,only demonstrates preliminary evidence,and if there is any evidence showing that the unreasonable risk exists,still the product is considered defective.
- See,e.g.,Yang Lixin,2011:564,Wang Liming,2011:266,et seq.,Xiang Li and Jigang Jin,2014:183,et seq.
- Cf.,e.g.,Yang Lixin,2011:561-563,Wang Liming,2011:267,et seq.,and Chen Lu,2010:130,et seq.
- Xiang Li and Jigang Jin,2014:283.
- Zhang Xinbao,2010:112.
- Interpretation of the Supreme People’s Court on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Tortsissued Mar.8,2001.
- For futherdetails,see,e.g.,Yang Lixin,2011:568,et seq.,and Xiang Li and Jigang Jin,2014:188-189.
- Wang Liming,2011:299-300.
- Xiang Li and Jigang Jin,2014:186-187.
- Prior to the TLL,warning and recall rules were scattered in administrative regulations and applicable to specific products,such as automobiles(Provisions on the Administration of Recall of Defective Auto Products,issued on Feb.12,2004),toys(Administrative Provisions on the Recall of Children’s Toys,issued Aug.27 ,2007),medicines(Administration Measures for Drug Recalls,issued Dec.10,2007)and food(Food Safety Law of People’s Republic of China 2009).
- Yang Lixin,2011:559-560.
- For instance,suppose a customer of a hairdresser that suffered a burning in his head while having the hair coloured.In a strict liability scenario it would be easier to sue the producer of the hair color than to proceed against any of the remaining participants.In consequence,the manufacturer will probably be the only one to get sued,disregarding the fact that the injury may have been caused by the negligence of the hairdresser while dyeing the hair or the conditions in which the hair color was preserved in the hair salon.
- STAPLETON,1993:96.
- BODOAS CA&SAHAROV,2013:1 and VINEY&JOURDAIN,1998:758 ff.
- GHESTIN,1998:148.
- This Directive shall not affect any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability or a special liability system existing at the moment when this Directive is notified.
- Case C-310/13 Novo Nordisk Pharma GmbH/S[Case in progress].
- Id.
- Cf.BOURGOIGNIE,2005:162-172.
