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Title: A comparative study of the liability rule for defective product under the product quality law of PRC and several other jurisdictions
Other Titles: Guan yu que xian chan pin de ze ren yuan ze de bi jiao yan jiu : Zhongguo chan pin zhi liang fa yu yi xie guo jia he di qu de fa lü
關於缺陷産品的責任原則的比較研究 : 中國産品質量法與一些國家和地區的法律
Authors: Li, Han (李菡)
Department: School of Law
Degree: Master of Philosophy
Issue Date: 2003
Publisher: City University of Hong Kong
Subjects: Products liability
Products liability -- China
Notes: CityU Call Number: KNQ846.5.L525 2003
Includes bibliographical references.
Thesis (M.Phil.)--City University of Hong Kong, 2003
iii, 312, [16] leaves : ill. ; 30 cm.
Type: Thesis
Abstract: Product liability appeared as legal issues in British cases Winterbottom v. Wright ' in mid-nineteenth century and gradually developed as an important area of law. The United States of American (USA) developed modern product liability. Based on the landmark decisions, in 1965 the rule of strict product liability has been incorporated as section 402A of the Restatement (Second) of ~orts.' It has been adopted by the most of states in the USA. Product liability law in the USA is generally regarded as having its impact and influence upon product liability legislation in many other countries. On 25 July 1985, the Europe Product Liability Directive was adopted by the Council of Ministers of the European Economic Community (EEC). China adopted its Law of the People's Republic of China on Product Quality (hereafter "PQL")~ in 1993 and also adopts the strict liability in it. In the Hong Kong SAR, until now the "privity of contract" rule has not been changed, in February 1998, the Law Reform Committee of Hong Kong published the "Report on the Civil Liability of Unsafe Products", creating a strict liability remedy against manufacturers for defective products causing damage. It has not been adopted yet. In 1997, the Restatement (Third) of Torts on product liability was finally approved by American Law Institute of the USA.~ This is the first reform of the product liability rule in the USA since the Second Restatement was adopted in 1965. It marks a change from reliance on the strict liability rule for product liability to a negligence-based product liability rule. The primary purpose of modem product liability law is to balance two different kinds of interests. On the one hand, it is the necessary to provide appropriate protection to the lawful interests of a consumer or user. When a consumer or a user has suffered either personal injury or property damage caused by defective products, he should be entitled to immediate and fair compensation. On the other hand, we should also ensure that the manufacturer would maintain the enthusiasm to do research and development in technology so as to provide society with more and better products. In other words, the strict liability is designed to promote both safety and fairness. The key issue in PQL is product liability principle, i.e., strict liability or fault-based liability. This paper will conduct a comparative study of the product liability principle in four different jurisdictions, i.e., the United States of America ,European Union, Hong Kong Special Administrative Region and the People's Republic of China. Based on the above examination, the paper will conclude that the strict liability rule has achieved the objective to establish a proper balance between protecting the consumer's interests and protecting the enthusiasm of the manufacturer to develop new products. In the field of international product liability, the strict liability rule has played a very important role in achieving such an objective in the last thirty years. Consumers have got the benefits from this strict liability rule. Strict liability rule has also been widely adopted in many other countries. With regard to the arguments against the new Third Restatement in the USA, I would submit that even if crisis has happened, its occurrence would not necessarily be due to the implementation of the strict liability rule itself. Obviously, we cannot conclude from the factors existing in American litigation, that the strict liability rule should no longer apply in product liability cases. Those factors are not inherent elements of the strict liability rule. With regard to the new reform happening in the USA, we should note that the fundamental issue, as has been discussed by many scholars, is how to present the "most just" solution to the problems of liability law between the consumers and the manufacturers. In the case of China, its economy has developed over the last twenty odd years and is converging with market economy. The present China has a good basis for the application of the strict liability rule. Having said that, it should also be noted that a proper balance need to be kept in its product liability legislation between the protection of consumers' interests and the interests of the producers and insurance companies. Such a balance will be achieved by adopting the rule of strict liability in Chinese product liability legislation, i.e., the PQL. The conclusion will further point out that through comparison with the legislation and practices of product liability law existing in other jurisdiction, Chinese PQL can be improved in some areas.
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