Chen Ming

I. Definition of large-scale latent product poison infringement

Latent poisons are a by-product of the disorderly development of the economy and the advanced society of science and technology.The long-term incubation period is difficult to discover,the scope of influence is wide,the complexity of causality and the difficulty of collecting evidence make the infringement of latent product poisons.The difficulty of solving the problem is greatly increased in the absence of relevant legal provisions.

Latent poison infringement can be divided into two major categories: latent product poison infringement and latent environmental poison infringement.[6]Latent product poison infringement is mainly manifested by the invasion of toxic and harmful substances caused by the product's own defects to the human health system,which is different from product infringement that causes direct physical damage or mechanical injury to the human body. The author believes that,in a broad sense,product poison infringement belongs to One of the broadest environmental toxicants.The reason why product toxicants with independent material forms are distinguished from environmental toxicants in the natural environment is because there are still many differences between the two in terms of the composition of tort liability,determination of causality,and the cause of defense.It must be discussed separately based on its own characteristics.Of course, the author believes that there is a poison in an independent material form,which diffuses the poison in the air and exposes people to poisons such as asbestos.For such poisons,the rules for the treatment of product poisons can also be applied.The rules for handling environmental toxicants can be applied, which can avoid difficulties in applying the law and make it difficult to fully protectProtect the interests of victims.

II. Subjects of theoretical responsibility

China's liability for damage caused by defective products is stipulated in the Product Quality Law,the Consumer Rights Protection Law, the General Principles of the Civil Law,and the Tort Liability Law.For producers,If the defective product produced causes personal or property damage to others,it shall bear no fault liability;the seller and the producer bear no joint and several liability.

Producers and direct sellers,as the most basic responsible parties, belong to the first-ranking obligor. However,the infringed person cannot directly request the infringer from the transporter,warehouser or other third party who is responsible for product defects.Compensation,and after the producer and consumer assume responsibility for the infringed person,they will recover the person who actually caused the product defect.The limitation of the responsible party will be more conducive to the infringed person to seek relief efficiently.[7]

For large-scale latent product poison infringement,the long incubation period is sometimes caused by the poison of a specific product,and it is difficult to determine the infringer because there are multiple producers producing similar products on the market at the same time.The infringer used different manufacturers It is impossible to determine the infringement level of the defendant and different defendants for the same product produced.It is worth learning from the end of the 1970sUnited States courtIt has been judged that the producers of similar products are defendants,and each defendant assumes liability for compensation according to the market share occupied by its products.The larger the market share,the more profits it receives, and the greater the amount of compensation it bears.

III.The scope of responsibility

In infringement cases,the consequences of damage are manifested in the personal injury suffered by the victim,the related loss of personal medical property,and compensation for moral damages,and the loss of the price related to the product,the author believes,should be contractual damages rather than tort liability damages Consequence range.

In the case of latent product poison infringement,due to its latent nature,vthe consequences of personal damage in the pre-latent period of toxicity are not directly apparent,at this time the damage of the infringement appears to increase the risk of disease. Some scholars believe that in harmful In a large number of cases of material infringement,the victims often suffer sustained low-level injuries,and if the increase in the risk of illness is not included in the scope of the damage results,the rights and interests of the victims will not be guaranteed in a timely and effective manner.In the case,if the victim wants to obtain compensation, he needs to provide a medical diagnosis certificate of stone disease issued by the hospital to prove the existence of the consequences of the damage.It can be seen that in practice,the damage that increases the risk of disease is not included.The ranks of damage relief.The author believes that the increase in the risk of illness should not be included in the consequences of damage,but should only be considered as a "risk".Based on the particularity of the infringement of latent product poisons,its illness has potential and non-inevitability The increase in the risk of disease is not likely to directly lead to the formation of the disease.If it is classified as the category of the consequences of damage,it will unreasonably expand the responsibility of producers and sellers and increase the number of cases.Processing difficulty,it will have serious burden on the judicial practice.

IV. Large-scale latent poison infringement relief mechanism

(I) Treatment in Practice

A large number of compensations for damages that have already occurred are quickly resolved administratively.In the incident,the State Council initiated the first-level response to a national security accident.In order to protect the legitimate rights and interests of sick infants and young children,responsible companies funded the establishment of medical compensation funds,which may occur after the end of acute treatment of sick children until the age of 18 The infringement-related diseases were treated free of charge, and different degrees of compensation were given to the families of victims of death, severe illness and common symptoms.

Regarding how the victim obtains compensation,there are different approaches in practice.In the case of milk powder contamination,the administrative agency limits the possible diseases caused by product poisons to five categories.If infants and young children suffer from the listed diseases before the age of 18 after eating contaminated milk powder. According to the medical diagnosis certificate and the certificate of consumption of contaminated milk powder,you can get reimbursement from the relevant institutions.In the case of Changchun Changsheng fake vaccine,it is only a rough list of the three types of death, disability and paralysis. There is a causal relationship,which needs to be identified by the expert group.

Due to the uncertainty of the incubation period,it is difficult for the victims who did not show the damage during the administrative compensation period to obtain reasonable relief after the fact.In the first national Sanlu milk powder death suit,the victims' family members withdrew after receiving compensation under the administrative system. After the administrative compensation plan was promulgated,the court will no longer accept recovery claims from the families of the victims.Article 5 of the Changchun Changsheng Vaccine Compensation Plan stipulates that compensation should be paid in accordance with the compensation plan if the listed damage occurs within one year.Filed a lawsuit in the court. However,it is worth pondering that shortly after the outbreak of the incident,Changchun Changsheng Company declared bankruptcy,and even if there are litigation reasons, there are no actionable defendants. The appearance of the consequences is unpredictable, which make it difficult to achieve relief in the relevant provisions of civil lawsuits.

(II) Exploration of Relief Mode

For large-scale latent product poison infringement cases, the administrative-led relief mechanism is reflected in practice.The author believes that large-scale latent product poison infringement cases will be a major social event and affect many people once it explodes due to its widespread impact.Compared with the rigorous and complicated judicial trial process,the administrative-led relief mechanism can quickly solve problems and soothe most victims,resolve social contradictions,and maintain order and stability. Problems,compensation can only be made after the panel has determined that enumerated illness compensation inevitably limits the victims' claims and lacks flexibility.

And it is worth thinking about how to remedy the damage after the government stipulates the incubation period.The model of judicial relief in the Changchun Changsheng fake vaccine case has little effect,and the victim will face the defendant's possible bankruptcy after he has incurred huge compensation. High risk.Appropriately extending the compensation time of the special compensation fund and obtaining compensation through the expert group's identification will be more reasonable for the victim. If there is an actionable defendant, the fund compensation can also reduce the probability of the company being sued.Provide stability for the development of the enterprise.

References

[1]Zhang Xinbao. Tort Liability Law (Fourth Edition) [m] .Renmin University of China Press: Beijing, 2016: 238.

[2][美] Jean Machiavelli Aigen, translated by Li Bingqiang. Essentials of Poison Law (4th Edition) [m]. Nankai University Press: Tianjin, 2016: 30.

[3]Tu Yongqian.Study on Tort Caused by Latent Toxicants [m] .Intellectual Property Press: Beijing, 2014: 100.

[4]Liu Xuanlin.Research on Mass Tort [m] .China University of Political Science and Law Press: Beijing, 2018: 150.

[5]Le Wenjing.An Example of Product Defect Infringement Liability and Application of Law [m] .People's Publishing House: Beijing, 2010: 36.

[6]Tu Yongqian , Study on Infringement Caused by Latent Poisons, Intellectual Property Press, 2014, p. 100.

[7]Le Wenjing, "Legal Interpretation of Product Defect Infringement Liability and Application of Law", People's Publishing House, 2010, p. 36.