Article 1206
If defects are found after the product is put into circulation, the producer or seller shall promptly take remedial measures such as stopping sales, warnings, recalls, etc., and if the remedial measures are not taken in a timely manner or the remedial measures are ineffective and the damage is expanded, the manufacturer or seller shall also bear tort liability for the expanded damage.
Where recall measures are employed in accordance with the provisions of the preceding paragraph, the producer or seller shall bear the necessary expenses incurred by the infringed party.
1. The main purpose of this article
This article is about the obligation of producers and sellers to follow up and observe.
II. Evolution of the Provisions
Article 46 of the original Tort Liability Law stipulates that: "If a product is found to be defective after it is put into circulation, the producer or seller shall take remedial measures such as warning and recall in a timely manner." Where remedial measures are not taken in a timely manner or the remedial measures are ineffective and cause harm, tort liability shall be borne. Subsequently, Article 19 of the Law on the Protection of Consumer Rights and Interests, amended in 2013, clearly stipulates the obligation of business operators to take timely measures against defective products and services, which stipulates that "if a business operator discovers that the goods or services provided by it are defective and threatens the safety of persons and property, it shall immediately report to the relevant administrative departments and inform consumers, and take measures such as stopping sales, warnings, recalls, harmless treatment, destruction, and stopping production or services." Where recall measures are employed, the proprietor shall bear the necessary expenses incurred by consumers as a result of the recall of the goods. Paragraph 2 of Article 33 further stipulates: "If the relevant administrative department discovers and determines that the goods or services provided by the business operator are defective and there is a danger of endangering the safety of persons and property, it shall immediately order the business operator to take measures such as stopping sales, warnings, recalls, harmless disposal, destruction, or stopping production or services." Compared with the provisions of Article 46 of the original Tort Liability Law, this article adds the remedy of "stopping sales" in paragraph 1, amending the original "causing damage" to "causing damage to expand", and adding "the loss to the expansion" before "shall bear the tort liability". The word "also" here implies that there is also tortious liability for this expanded damage. In addition, a new paragraph 2 is added to this article, which clearly stipulates that "if recall measures are taken in accordance with the provisions of the preceding paragraph, the producer and seller shall bear the necessary expenses incurred by the infringed party".
3. Interpretation of Provisions
This article is a provision for the follow-up and observation of defects in product liability.
As mentioned earlier, defects in product liability include design defects, manufacturing defects, warning description defects, and follow-up defects. The first two defects are the usual defects of product liability. Article 18 of the Law on the Protection of Consumer Rights and Interests stipulates defects in warning statements. This article regulates product liability for tracking defects.
The elements that constitute liability for the follow-up observation of defective products are:
(1) Before the product is circulated, whether it has defects can not be found according to the existing science and technology, and it meets the requirements of development risk and can be put into circulation.
(2) If the product is found to be defective after it is put into circulation, the producer and seller shall have the obligation to stop selling, warn, recall and other remedial obligations.
(3) The producer or seller fails to take remedial measures in a timely manner, or the remedial measures are ineffective. (4) The product has caused the expansion of the infringer's damage due to the failure of the producer or seller to take remedial measures or the ineffective remedial measures taken.
With regard to the compensation rules for follow-up observation of defective product liability, the provisions of this article are different from those of the Tort Liability Law: the Tort Liability Law stipulates that "if the damage is caused by failure to take remedial measures in a timely manner or the remedial measures are ineffective, the tort liability shall also be borne for the expanded damage". In fact, this provision makes an appropriate distinction between the development risk defense and the liability of the follow-up observation defective product, that is, the development risk rule is the exemption of product liability, that is, Article 41, Paragraph 2, Item 3 of the Product Quality Law stipulates that "the existence of defects cannot be discovered at the level of science and technology when the product is put into circulation". If a product put into circulation that meets such requirements is found to have caused damage due to defects, it may be exempted from liability, and after the defect is discovered, the producer or seller has the obligation to warn and recall to avoid further damage. Failure to fulfill the obligation of warning and recall is an expanded damage in the sense of causing damage.
According to the provisions of this article, the damage caused before the occurrence of the defect is exempted, and the liability for the damage caused by the failure to fulfill the obligation of warning and recall after the defect is discovered is the liability arising from the follow-up observation defect under this article.
4. Cases
Wu Mouqin v. FAW-Volkswagen Co., Ltd. and other companies in a product liability dispute
Facts: The deceased Zhang purchased an Audi sedan from Xintai Company and registered it in the name of Wu Mouqin. After drinking alcohol, when Zhang drove the small car along the people's road of a certain county from north to south to the intersection of Fengjing Road, the operation was improper, the vehicle collided with the billboard, the airbag was not opened, and Zhang died on the spot. It was identified that the front airbag of the car had the conditions to open in this accident, but the front airbag of the car was not opened, indicating that the system was not working properly, but it was impossible to determine whether there was a defect. FAW-Volkswagen failed to provide evidence to prove that it had notified Wu to recall the vehicle. The court of first instance held that the deceased Zhang's drinking and driving and improper operation were the main factors that caused his death on the spot, and that the front airbag of the accident vehicle had the conditions to open but was not opened at the time of impact, which was a secondary factor causing Zhang's death, and according to the degree of fault of both parties, it was determined that Zhang should bear 60% of the liability and the manufacturer or seller of the vehicle should bear 40% of the compensation liability for Zhang's death. The original verdict was upheld in the second instance.
5. Analysis
In this case, Zhang, the son of Wu, drove an Audi A4L car with product defects, and after a serious traffic accident, the airbags were not opened, resulting in the direct death of the driver, Zhang. The vehicles involved in this case are within the scope of the recall in the notice "FAW-Volkswagen Co., Ltd. recalls some imported Audi A4 and domestic Audi A4L cars" issued by FAW-Volkswagen on the official website of the Defective Product Management Center of the General Administration of Quality Supervision, Inspection and Quarantine of the People's Republic of China on October 29, 2014. FAW-Volkswagen, as the manufacturer of the defective product, has the obligation to take timely and effective remedial measures against the vehicle involved in the case, and shall bear tort liability if it fails to fulfill this obligation. As the seller of the defective products, Xinfengtai Company could not prove that it had fulfilled its remedial obligations such as warning and recall to Wu Mouqin or his son Zhang through various means such as mass text messages, telephone calls, notices, announcements, etc., and therefore should also bear tort liability.