VIEWS: 19 PAGES: 8 POSTED ON: 8/27/2010
Summary product quality problems Product quality and company law notes summary ? A legal conclusion: ? 1. Product quality categories and areas of responsibility ? Product quality issues, including product defects and product defects. ? Product defects responsible for: the sold one of the following circumstances, the seller shall be responsible for repair, replacement or return; to buy the product caused the loss of consumers, the seller shall compensate for the losses: (a) do not have the product should have the property is not stated in advance; (b) does not comply with the product or its packaging the product standards marked on; (c) does not conform to the product description, physical samples showed that the quality of the situation. The sellers, is responsible for repair, replacement, refund or compensation, the responsibility belongs to the producer or are providing products to sell to other sellers (hereinafter referred to as supplier), the responsibility of, the seller shall be entitled to production who, as supplier recovery. ? Responsibility for product defect: a defective product caused the victim bodily harm, the infringer shall compensate for medical expenses and nursing expenses during the treatment, the reduced income due to missed work and other expenses; cause of disability shall be paid a fee for self disabled , living allowances, disability compensation and dependency of people by their necessary living expenses; caused death of the victim, and should pay the funeral expenses, death compensation, and supported by the dead person&#39;s living expenses are necessary. Due to a defective product causes property damage victims, the infringer shall restore the original state, or compensating for it. The victim suffers other great losses, the infringer shall compensate for the loss. A defective product causes personal injury, property damage to others, the victim can seek compensation to the product manufacturer, product sales may also demand compensation. Are products of the producer&#39;s responsibility, sales compensation, the sales person has the right to recover the product manufacturer. Product sales are the responsibility of, the product manufacturer for compensation, the product manufacturer product sellers have the right to recover. ? 2. Product quality defects dispute the burden of proof and Disclaimer ? Judicial practice, the burden of proof of product quality differences across the court to understand large, often the error distribution of the burden of proof in the case: that the defendant prove that their products should be no quality problems and the direct request of proof of their exemption. ? First of all: the plaintiff must prove that the products have quality defects or deficiencies, followed by the plaintiff should prove its damage and the quality of flaw or defect is causal. The proof of causal relationship should be to enable the judge is convinced that the possibility of other causes little damage (Shanghai geophysical measurements in the case of coal). On product quality defects or deficiencies in the exemption are recognized burden of proof is completely wrong. ? If the product does not meet the statutory requirements, the court case can be assumed that the producer is at fault, if not prove cause and effect relationship between the above, it is likely to award the responsibility. For example: the product or its packaging must be true identity and meet the following requirements: (a) quality certificate of inspection; (b) the Chinese marked the product name, manufacturer name and address; (c) according to the characteristics and use requirements, need to indicate product specifications, grade, name of the major ingredients and the content, shall be specified clearly in Chinese; need to inform consumers in advance, it should be marked on the packaging, or provide information to consumers in advance; (d) limited use of the product should be in a prominent position clearly indicated production date and safe use of, or expiration date; (e) improper use, easy to create the product itself is damaged or likely to endanger the personal and property safety of the product, there should be warning signs or warning statements in Chinese. Unpacked food and other according to the characteristics identified are difficult to be packed products, you can dispense with product marks. By the same token, if the producer does not produce permits, approvals, etc., can also be regarded as presumed at fault situation. ? Secondly, if the defendant has been proven to bear the responsibility, if it thinks there are exemptions, you can adduce evidence to prove. Producer to prove that one of the following circumstances exemption (1) is not the product into circulation; (2) products are put into circulation, causing damage to the defect did not exist; (3) the product into circulation, the level of science and technology defects can not be found there. ? Time from the real case to summarize the extent of the plaintiff to prove: for example, baby sling, cell phone batteries, refrigerator, hairdryer, etc., from a variety of different case designs reproduce the fact that different legal environment, combined with the rules of evidence, integrated analysis of both sides testify to fair deal with the types of cases the principle of allocation of the burden of proof to obtain the conclusions (such as different types of products, different burden of proof). ? 3.&#39;s Commitment to product quality defects in human responsibility: sales and producer; responsibility for product quality defects contract relative anthropogenic, that vendor. ? In the OEM production mode, the product of OEM manufacturers (OEM commission business) and manufacturer (OEM manufacturer) belong to the producer, jointly and severally liable. Supreme People&#39;s Court on whether the victims of product infringement cases to the product trademark owner&#39;s approval to initiate civil action the defendant wrote: &quot;No his name, names, trademarks or other identifiable marking reflected in the products, the product manufacturer said its business or personal, belong to the &quot;General Principles of Civil Law&quot; Article 22 provides that &quot;the product manufacturer&quot; and &quot;The People&#39;s Republic of China on Product Quality&quot; under &quot;producer.&quot; ? 4. Limitation: ? Product quality defects limitation of 2 years (knew or should have known from the date), product liability statute of limitations for one year (or should have known from that date) ? 5. The application of national mandatory product standards ? To protect the safety of products, some countries are closely related with the personal use of compulsory product certification. Therefore, the quality of dispute cases in the course of treatment or prevention should be the first to find the product by the applicable national mandatory standards, to see which specific provisions. Did not receive the mandatory certification, will assume a greater liability. ? 6. The state&#39;s mandatory three packs of responsibility ? Three Guarantees countries on certain products mandatory obligations to increase production and sales of the responsibility to protect consumers. ? ? 7. In product quality disputes, tort and breach of competing. How to choose the applicable law? Infringement or breach of contract the buyer shall have the right to choose the premise that: the seller&#39;s breach of contract against the interests of property rights other than those attributable to the performance benefits, but not the subject matter caused by the buyer unqualified loss (Shanghai Bao-printed color coated metal case). ? Compensation should be based on jurisdiction and the buyer to choose the amount of litigation to their advantage. ? 8. Foreign product quality, the difference? ? (1) jurisdiction and applicable law ? Under current civil law, due to a substandard product causes to property, personal injury actions, are violations. According to China&#39;s &quot;Code of Civil Procedure,&quot; Article 22: &quot;due to infringement lawsuit brought by the infringement to court jurisdiction. Due to product defect lawsuits filed by the defendant where the general jurisdiction of the court, but can also be agreed in the contract . ? . On the foreign law applicable to product liability cases, our law in this area are: a. The People&#39;s Republic of China in international treaties concluded or acceded to the civil law with The People&#39;s Republic of China have different requirements, applicable international treaties, but unless the PRC has made reservations, The People&#39;s Republic of China and the Republic of China or the law not provided for in international treaties may be applied to international practice. b. on the product liability tort damages for violations of the laws. The parties of the same nationality or have residence in the same country, may be applied domestic law or the law of domicile. The People&#39;s Republic of China People&#39;s Republic of law does not think the behavior is outside the field of tort, not as violations processing. ? (2) Convention and our products liability law on the different ? a. Convention does not involve the goods on the personal injury or death caused by the seller of liability arising. Article 5 states: &quot;This Convention does not apply to goods to any person for injury or death arising from the seller responsibility.&quot; Is generally believed that the product defect caused by personal or property damage, not breach of contract, but of tort liability, product liability should be subject to national law and consumer protection laws to adjust the scope of the Convention right to adjust this. However be noted that the Convention in Article 5 of the personal injury only to give up the responsibility of the jurisdiction, and not expressly waived the jurisdiction of the property damage liability, so the seller should remain under the Convention on the product defect caused by damage to property of others responsibility. The laws of China, causing defects in product quality due to personal or property damage cases, consumers can claim compensation from the sellers responsibility, but also to the producers claim. ? b. Limitation of actions under the Convention for the actual date of receipt of the goods within two years, unless this time period with a contractual guarantee does not match. China&#39;s law will be product defects and product defects were made by different rules. ? ? ? 9. Request occurs when the quality of the administrative department of dispute procedures and considerations involved? ? 10. Quality overview of criminal responsibility ? On producers, sellers serious violations of product quality law, criminal acts constitute a crime. According to China&#39;s legislative system, the constitutive elements of crime and criminal penalties, are unified in the criminal law provides for, but not in other single law otherwise. Chapter III of the Criminal Code specifically provides for &quot;production and sale of fake goods Crime&quot; section, on the various types of production and sale of shoddy goods Crime and criminal penalties should be given to specific provisions. Violation of the provisions of the Product Quality Law, constitutes a crime, should be investigated in accordance with the provisions of the Criminal Code sellers of criminal responsibility. ? 11. Other issues: ? If the seller denied in the proceedings of the products stored in the buyer&#39;s warehouse belonging to the sale of products, such as live view by the court, its type, size, number of contract manufacturers in particular the same, you should determine if the seller is no evidence to the contrary, should be identified The sale of goods belonging to the subject matter (Shanghai Beverly metal case). ? No objections were raised during the inspection or acceptance by, the initial quality of the product are proof; warranty period of product quality problems, should the buyer to prove that the problem is not caused by the use of its own. (Shanghai Jin Wei film plate membrane equipment case) ? 12. Warranty and quality of objection period: contract law, the two sides agreed during the inspection, over the period did not notice as quality standards; warranty, but if the provisions of the law, even if the inspection period, the seller has the legal nature should be liability insurance during the period (such as housing, heating and cooling system should be two cycles or three packs of three packs of the product directory is valid); no inspection period, usually two years notice quality issues, more than two years as quality standards However, the application of quality assurance of the quality guarantee period. There are two problems: A test if the same agreement and quality assurance during the period, the quality of opposition in what subject? School management through the normal quality assurance that will automatically be extended test period. B If only the agreed inspection period and the period has passed, the buyer can claim quality of support? If the quality demands the return of such claims can not support, but the buyer can really prove the quality of the product itself caused the loss, can tort to sue for damages in accordance with C if no test of agreement, but the buyer in the quality assurance product quality during the present issue, even if they have already paid full paragraph, can claim to terminate the contract? Yes, but should prove that the product quality problems are the product itself, but does not use or natural aging causes of quality problems. Identification of the warranty period shall not use national standards, because it is an old product, and if the quality does not meet the contract identification purposes, should also cancel the contract discount (on Hai Lannuo case of electric vehicles). ? On Ama many cases there are several points worth noting Textiles: 1. The unilateral submission of the report identified the buyer found &quot;on the Civil Evidence Provisions&quot;, 18 self-identification of the relevant departments entrusted effective provisions, ignoring the non-parties The other sample storage objections; (Shanghai Dipper food cases similar circumstances) 2. its inherent quality defect that our laws should apply to a period of 2 years, to the exclusion of the &quot;goods to the test&quot; test of agreement. ? ? ? &quot;Criminal Law&quot; because of quality problems relating to the conduct of criminal responsibility are listed below: ? (1) producers and sellers of products adulterated or impurities, shoddy or substandard product off as qualified to products, sales more than the amount of 50,000 yuan. (2) production and sale of fake medicines, enough to seriously endanger human health or cause serious harm to human health, or to cause death or serious human health hazards in particular. (3) production, sales of inferior quality, causing serious harm to human health, or the consequences are especially serious. (4) production, sales do not meet health standards of food, enough to cause serious food poisoning accident or other serious 食源性疾患; or serious harm to human health; or the consequences are especially serious. (5) in the production and sale of food mixed with toxic and harmful non-food raw materials, or knowingly sells mixed with poisonous and harmful food non-food raw materials; or cause serious food poisoning accident or other serious 食源性疾患, causing serious harm to human health; or to cause death or serious harm to human health in particular the. (6) production does not meet national standards to protect human health, the industry standard medical equipment, medical materials, or knowingly selling do not meet national standards to protect human health, the industry standard medical equipment, medical materials on human health serious harm; or consequences are particularly serious, or where the circumstances are especially bad. (7) production not to protect personal and property safety of the national standards, industry-standard electrical appliances, pressure vessels, or other flammable products do not meet personal and property safety of the national standards, industry-standard products, or knowingly sells above do not meet personal and property safety of the national standards, industry-standard products, resulting in serious consequences; or the consequences are especially serious. (8) produces fake pesticides, fake veterinary drugs, fake chemical fertilizers, knowingly selling fake or no longer effective pesticides, veterinary drugs, fertilizers, seeds, or the producer or seller to substandard pesticides, veterinary drugs, fertilizers, seeds as standard pesticides, veterinary drugs, fertilizers, seeds, suffered great loss of production; or heavy losses of production; or to produce especially heavy losses. (9) the production of cosmetics do not meet health standards, or knowingly sells cosmetics do not meet health standards, resulting in serious consequences. (10) production, sales above (2) to (9) listed in the product does not constitute a crime under the article, but the sales amount of more than 50,000 yuan, according to the above (1) shall be convicted and punished. (11) production, sales above (2) to (9) listed in the product constitutes a crime under the article, at the same time constitute the above (1) shall be fined in accordance with the provisions of a heavier penalty be convicted and punished. (12) units have committed the above (1) to (9) shall be fined, sentenced to a fine, and directly in charge and other directly responsible personnel shall be punished according to the article. ? Customs Criminal Law in the producers, sellers serious violations of product quality law, criminal acts constitute a crime. According to China&#39;s legislative system, there ? ? ? Second, the company notes ? 1. In dealing with the quality of disputes, should pay attention to investigate other criminal methods used to promote the achievement of the negotiations, We also have to pay attention to the risks involved in criminal offenses. ? 2. As a seller should pay attention: A possible access to the statutory exemption itself, so it should be: as far as possible the transportation of goods from the manufacturer delivered directly to customers, and expressly informed the customer who is the manufacturer (for example, a single on the maintenance record stated) ? 3. As a seller or producer should be noted: A product should have a hallmark and certificates (see I.2), or it may increase due to fault of the burden of proof; B was charged with cautious acceptance of quality products, Because the product means that the burden of proof to accept the transfer; C using limitation of claim for damages against the D-date sales of quality inspection of the contract, to start the implied quality standards. ? Sellers and producers of quality defense: 1. Limitation defense 2. No damage defense (burden of proof on the plaintiff) 3. No flaws or defects in the quality of defense (burden of proof on the plaintiff, if the buyer has the product in use or sale, then quality standards as the default) 4. harm no causal relationship with the quality of defense (burden of proof on the plaintiff) 5. the statutory exemption defense. Preparation of evidence, including: product is famous in the qualification certificate, the official publication described on the cause of failure (for example, not only the fault of computer products including hardware, software), warranty period, test reports, controversial products such as follow-up of the purchase contract. ? 4. The buyer should note: A note that aging is expired (2 years, quality defects, quality defects 1 year) the right to timely claim the event B fixed at the expense of attention to the evidence, request the relevant government departments involved in the investigation C held the seller certificates, permits, qualifications, etc. aspects of defects, so the judge found the seller to increase the burden of fault D quality inspection at the agreed time period to test and inform the seller in order to avoid loss of payment defenses E note whether the product has been the warranty period has expired is as is the initial failure to prove the product quality (superior&#39;s superior construction materials into the case) ? 5. Identify the buyer a unilateral defense: ? Not a common sample storage products will be inspected, nor proof of this as sellers supply (Shanghai Yi Jie fasteners case);
"Summary product quality problems"