Article 1203
If the defective product causes damage to others, the infringed party may claim compensation from the manufacturer of the product or from the seller of the product.
If the product defect is caused by the producer, the seller has the right to recover from the producer after compensation. If the product is defective due to the fault of the seller, the producer has the right to recover from the seller after compensation.
1. The main purpose of this article
This article is about the right of the infringed party to claim damages and the right of recourse of the producer and seller in product liability.
II. Evolution of the Provisions
In the previous laws of the mainland, Article 43 of the Product Quality Law stipulates that "if a product is defective and causes damage to persons or other people's property, the victim may claim compensation from the producer of the product or from the seller of the product." If it is the responsibility of the producer of the product and the seller of the product compensates, the seller of the product has the right to recover from the producer of the product. If it is the responsibility of the seller of the product and the producer of the product compensates, the producer of the product has the right to recover from the seller of the product. Article 40 of the Law on the Protection of Consumer Rights and Interests stipulates that: "If a consumer's legitimate rights and interests are harmed when purchasing or using goods, he may claim compensation from the seller." After the seller compensates, if it is the responsibility of the producer or the responsibility of other sellers who provide goods to the seller, the seller has the right to recover from the producer or other sellers. Where consumers or other victims cause personal or property damage due to defective goods, they may demand compensation from the seller or the producer. If it is the responsibility of the producer, the seller has the right to recover from the producer after compensation. If it is the responsibility of the seller, the producer has the right to recover from the seller after compensation. Where consumers' lawful rights and interests are harmed when receiving services, they may demand compensation from the service provider. On the basis of Article 43 of the Product Quality Law, the original Tort Liability Law made clearer provisions on the external liability and internal liability between the producer and the seller, that is, "if the damage is caused by the defect of the product, the infringed party may claim compensation from the manufacturer of the product or from the seller of the product." If the product defect is caused by the producer, the seller has the right to recover from the producer after compensation. If the product is defective due to the fault of the seller, the producer shall have the right to recover from the seller after compensation". This article basically follows the provisions of Article 43 of the original Tort Liability Law, and in addition to "causing damage" due to defective products, it also merges the original three paragraphs into two paragraphs, and the second paragraph uniformly stipulates the issue of the right of recourse.
3. Interpretation of Provisions
This article is a provision on non-genuine joint and several liability in product liability.
Non-genuine joint and several liability is a form of liability borne by most people in tort, and its basic rules are:
(1) The rule of intermediate liability: several responsible persons who bear not genuine joint and several liability are obliged to bear full liability for the damage caused by the victim.
(2) Ultimate liability rule: The ultimate liability that is not truly joint and several liability must ultimately be attributed to the ultimate responsible person who should bear the liability for compensation, rather than being distributed among several responsible persons.
(3) The rule of right of recourse: if the person who bears the intermediate liability is not the ultimate liable person but the intermediate responsible person, after assuming the intermediate liability, he has the right to recover from the ultimate liable person, and the scope of recovery is the full liability for compensation.
Compared with joint and several liability, the difference between non-genuine joint and several liability lies mainly in the allocation of ultimate liability: the ultimate responsibility of joint and several liability must be assigned to each responsible person, while the ultimate responsibility of non-genuine joint and several liability must be attributed to the person ultimately responsible without sharing the share.
Product liability is not really joint and several liability, and its specific rules are:
(1) If the defective product causes damage to others, the infringed party may claim compensation from the manufacturer of the product or the seller of the product. This is an intermediate liability rule that is not truly joint and several liability, and it is no-fault liability, and the infringed party can choose the responsible person to bear the liability for compensation according to its own wishes.
(2) The ultimate responsibility shall be borne by the producer or seller who caused the defect. Usually
If the defect is caused by the fault of the seller, the seller is the ultimate responsible person and shall ultimately bear the tort liability and be fully liable for compensation.
(3) The attribution of ultimate responsibility is realized through the exercise of the right of recourse, that is, if the product defect is caused by the producer, the seller has the right to recover from the producer after compensation, so that the producer bears the ultimate responsibility; if the fault of the seller makes the product defective, the producer has the right to recover from the seller after compensation, so that the seller bears the ultimate responsibility.
4. Cases
A store in Lutian Township, Poyang County, v. Bao Moumin et al., a product liability dispute case
Facts: Bao Moumin set off fireworks purchased from a store in Lutian Township, Poyang County, in the yard, but the fireworks did not go off after lighting the fireworks fuse. A few minutes later, Bao Moumin lit the fuse again, and the fireworks suddenly rushed out of the tube, Bao Moumin couldn't dodge being hit by the fireworks, and Bao Moumin was injured in the eye and fell unconscious. The court of first instance held that this case was a product liability dispute, and that there was a causal relationship between the fireworks that caused the accident and the loss of the plaintiff Bao Moumin; There is a causal relationship between the defective product and the damage, and the defendant, a store in Lutian Township, Poyang County, as a fireworks seller, should be liable for compensation. Setting off fireworks is a dangerous operation, plaintiff Bao Moumin did not read the fireworks instructions when setting off the fireworks, continued to light the fireworks after the fireworks went off for the first time, and the plaintiff Bao Moumin did not follow the requirements of the fireworks instructions to carry out the fireworks operation, for the occurrence of the accident plaintiff Bao Moumin has a greater fault, and the plaintiff Bao Moumin himself should bear certain responsibility. The original verdict was upheld in the second instance.
5. Analysis
This case is a product liability case. One of the constituent elements of product liability is the existence of a defect in the product. From the extinguishing of the fireworks after the fireworks in this case were lit, it can be inferred that the fireworks have defects such as mildew, empty triggering or lotus roots, which is sufficient to determine that they constitute product defects. Moreover, in this case, there was no source of purchase for the fireworks, the packaging of the fireworks products did not have the manufacturer's barcode, and there was no product certificate, so it can be presumed that the quality of the fireworks products was unqualified.
When the product is defective and causes damage to others, the seller and the producer are not truly jointly and severally liable, among which, the seller bears fault liability for the damage caused by the defective product to others, and the producer bears no-fault liability. Therefore, in this case, a store in Lutian Township, Poyang County, as the seller of defective fireworks, should bear tort liability. Moreover, a store in Lutian Township, Poyang County, could not identify the manufacturer or supplier of the fireworks that caused the incident, so it could not recover compensation from the manufacturer of the defective fireworks, and its tort liability as a seller was the ultimate liability.