论产品召回侵权责任

发布时间：2018-10-05 08:25

【摘要】：产品召回制度作为顺应时代潮流而诞生的新兴制度,对于预防由产品缺陷而带来的大规模人身或财产损害事件,保护社会公众的利益,规制生产商的生产行为,保障企业的稳定发展,降低现代社会风险,维护社会的繁荣稳定有着不可替代的作用。近年来,我国产品召回制度已经基本建立,产品召回的主体、程序、以及相应的责任等都已被立法明确。但是应当看到由于产品召回的整体立法位阶较低,主要为各类规章、条例,因此目前建立的产品召回责任以行政责任为主。产品召回作为建立在产品买卖关系基础上的制度具有明显的私法性,而其自身的特点又决定不能纳入传统的合同法领域进行调整。因此尽快明确产品召回的民事责任是我国产品召回制度建立过程中的一大问题。《侵权责任法》作为调整侵权行为的民事基本法,在产品责任一章创设产品召回侵权责任,专门规定因未及时有效实施召回而产生的侵权责任,填补了我国产品召回民事责任的空白。产品召回侵权责任以过错推定原则为归责基础,在构成要件上均与一般产品侵权责任相区别,在责任承担方式上也表现出自身的特点。本文认为,产品召回侵权责任的创设,在合同法物的瑕疵担保责任和侵权法一般产品侵权责任的基础上创设了全新的侵权责任类型,丰富了我国的产品召回责任体系。《侵权责任法》除创设产品召回侵权责任外,还再一次明确惩罚性赔偿在产品责任领域的适用。本文认为,惩罚性赔偿适用一切恶意产品侵权行为,当然包括恶意产品召回侵权行为。产品召回侵权责任的创设,改变了过去单纯依靠罚款、吊销营业执照等行政责任处罚生产者、销售者怠于履行召回义务的情形,更加有利于保障消费者的利益。而惩罚性赔偿的引入,也强化了产品召回责任的威慑力,有利于促进产品召回的有效实施。
[Abstract]:Product recall system, as a new system born in keeping with the trend of the times, can prevent large-scale personal or property damage caused by product defects, protect the interests of the public and regulate the production behavior of producers. It plays an irreplaceable role in ensuring the stable development of enterprises, reducing the risks of modern society and maintaining the prosperity and stability of the society. In recent years, China's product recall system has been basically established, the main body of product recall, procedures, as well as the corresponding responsibilities have been clearly legislated. However, it should be seen that the overall legislative rank of product recall is relatively low, mainly for all kinds of regulations and regulations, so the responsibility of product recall established at present is mainly administrative liability. Product recall, as a system based on the relationship between the sale and purchase of products, has obvious private law, but its own characteristics decide that it can not be incorporated into the traditional field of contract law to be adjusted. Therefore, to clarify the civil liability of product recall as soon as possible is a major problem in the process of establishing product recall system in China. The Tort liability Law, as the basic civil law to adjust the tort act, creates the tort liability for product recall in the chapter on product liability, which specifically stipulates the tort liability arising from the failure to carry out the recall in a timely and effective manner. It fills up the blank of civil liability of product recall in our country. The tort liability of product recall is based on the principle of presumption of fault, which is different from that of general product tort liability in terms of constitutive elements, and also shows its own characteristics in the way of liability assumption. This paper holds that the creation of tort liability for product recall creates a new type of tort liability on the basis of the liability for warranty for defects in contract law and the tort law for general product tort. The tort liability law not only establishes the tort liability of product recall, but also clarifies the application of punitive damages in the field of product liability. This paper holds that punitive damages are applicable to all malicious product infringement, including, of course, malicious product recall infringement. The creation of tort liability for product recall has changed the situation in which producers were punished solely by administrative liability such as fines and business licenses, and sellers lagged behind to fulfill their recall obligations, which is more conducive to protecting the interests of consumers. The introduction of punitive damages also strengthens the deterrent effect of product recall liability and helps to promote the effective implementation of product recall.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923

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