Research On The Application Of The Product Liability Punitive Damages System

On the basis of Article 47 of the Tort Liability Law,a new provision has been added that "failure to take effective remedial measures in accordance with the provisions of the preceding article".It forms the "parallel application condition" of punitive damages applied to product liability with "production and sale of products despite knowing the existence of defects".Through case search with keywords such as "product liability","knowing" and"remedial measures" on China Judicial Documents Network and Peking University Talisman,it can be seen that the product infringement punitive compensation system has some problems in practice,such as heavy burden of proof for consumers,neglect of product tracking and observation obligations,severe damage consequences,and confusion in determining the amount of punitive compensation.Therefore,when the new application conditions are added,it is necessary to clarify the applicable rules of the system,analyze the problems from the practical cases,and put forward countermeasures,in order to provide theoretical support for the application of punitive damages system.First of all,in the aspect of knowing,because the consumer cannot prove the operator’s subjective knowing state and bear the risk of failure to prove,more than 95%of the punitive damages claims are not supported by the court.Because of the characteristics of product liability and the definition of product defect,it is difficult for the victim to prove the requirement of "knowing the defect of the product" in punitive damages,and the punitive damages clause has been shelve in judicial practice.Therefore,at the time of new application conditions,we should solve the dilemma of knowing identification and the difficulty of application by clarifying the connotation of knowing,establishing the rules of knowing identification and reversing the burden of proof.In addition,since the implementation of the Civil Code in 2021,no punitive damages have been applied to violations of the obligation of warning and recall,so the standards for violations of the obligation of warning and recall need to be clarified.The application of punitive damages to the obligation of tracking and observation has caused new problems between it and the development risk defense system.Therefore,it is necessary to clarify not only the applicable conditions of the obligation of warning and recall,but also the relationship between the obligation of tracking and observation of products and the development risk defense system.In terms of the consequences of damage,Article 1207 of the Civil Code limits the consequences of damage to death or serious health damage.There is no provision for serious health damage in the field of civil law.It is necessary to learn from the provisions for health damage in the field of criminal law,clarify its applicable standards,and make clear the connotation and applicable standards for injuries above light injury,mild disability,moderate disability,or organ and tissue injury.As for amount of punitive damages,there are often wrong cases in the calculation base of the amount of damages in practice.On the one hand,it is the confusion of punitive damages for breach of contract and punitive damages for infringement On the other hand,it also shows the lack of determination of punitive damages and lack of clear applicable standards.Therefore,the calculation base and calculation multiple should be determined with reference to the Food Safety Law,and the amount of punitive damages should be determined with reference to the subjective malignant size and damage result.