Defective Product Recall System

Recall of defective products, means an institution that when there are defects inflicted on the products of a certain model or batch which will possibly harm the safety of person or property and such products are already available in the market, the manufacturer shall withdraw and change such products to reduce the potential risks and meanwhile apologize or compensate to the consumers. The recall institution can be regarded as a development to the product liability attribution, which has evolved from contract breach liability, general tort liability to strict tort liability. Such evolution shows both the liability to the manufacturers and the protection to the consumers increasing. Though the recall responsibility is the further development of the product liability, there are sharp contrasts between them. Recall is a statutory responsibility which starts before the injury occurs with protecting the public security as the aim. In contrast the product liability of compensation is borne by the manufacturers when the injury actually occurs. Recall can be regarded as the result of more risk exposures out of rapid development of technology and mass production.In accordance with the significance of food security to China and the particularity of food recall, I introduced the PRC recall regulations with the food recall as the center. Now in China there are four recall regulations with respect to mobile, food, toys and medicine. Importance is attached to the regulation authorities, hierarchy and classification, start and procedure and the assessment of food recall. Since the three regulations except the mobile recall regulation were enacted in 2007, the actual effect can not be found by now. Recall institution was established in U.S.A in the 1960s, which was improved significantly during the half century, such experience was drawn on in the legislation of the PRC recall regulations. Therefore, in this thesis much importance is attached on the common products recall and food recall legislation in U.S.A and the analysis in the features and shortcomings of the PRC recall regulations.The essence of this thesis lies on the analysis in the predicament and the according solutions to the recall institution in China with the food recall as the center. Firstly, according to the PRC Product Quality Law the estimation criteria for the product defect refer to the existence of unreasonable danger or inconsistence with the national or industrial standards, if any. On the basis of some actual cases, I made analysis on the difficulty and confusion in launching a recall resulted from the paradox of the dual-criteria in finding product defect and introduced such criteria in U.S.A and Europe, and accordingly tried to suggest the solution. Secondly, with respect to the classification of product defects and the "developing defect", I tried to probe into the relation between the developing defect liability exclusion and the performance of recall responsibility. Thirdly, in respect of the "tragedy of anti-commons" caused by various authorities and standards and according confusion and low efficiency, establishing a single authority and standard is a must. Fourthly, the excessively low liability provision and absence of penal damages lead to the negative attitude toward recall by manufacturers and backward recall insurance.Last but not the least, notwithstanding the shortcomings, there is much room for improvement with respect to the recall legislation mode, the establishment of recall regulation authority and the recall procedure. Moreover, there is in-depth element for the difficulty for recall in China. After all the success of product recall depends on the support of the manufacturers and the national economic policies. The perfect recall laws do not mean sound performance, since there is certain limitation of law in the enforcement of recall. And comparing the traditional product liability, recall obligation is a method of prevention of mass injury. However in respect of actual product security, recall is still a measure after the risk exposure. And the essential and fundamental way to realize product security is to the alteration of remedy to prevention.