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Chapter 32 of China NTCs deals with an analysis of the new legislative implications of the Chapter concerning product liability in the Chinese Tort Liability Law. The author, Professor Hu Junhong , analyzes this issue under the consumer protection law perspective. It has to be underlined that China recently began to address the issue of product safety. Since no specific law exclusively regulated product liability, related provisions could only be found in legislation pertaining to other legal fields and different time periods. From July 2010, a special kind of tort liability, linked to the fact that a product defect endangers the personal or property safety of another person came into effect in China. Related provisions were mainly contained in Chapter IV of the Product Quality Law (Articles 41 to 46) before the Tort Law was enacted. According to article 45, “the victim is entitled to require the producer or seller to assume the tort liabilities by removing the obstruction or eliminating the danger”. Appropriate remedial measures should be adopted in case the defect of the product is discovered after its circulation. Remedial measures include warning and recall. Scholars have noticed that there is a common trend in China: on the one hand, the Government has enacted strict laws on product safety but on the other the consumer safety cases with serious damage constantly arise. Two cases have been particularly stressed by professor Hu during his analysis: the Fuyang milk powder accident of 2003 and the melamine milk powder accident of 2008. In particular, the second case dealt with a milk powder with 1.5 to 6 times higher non-protein nitrogen and of melamine contained in it. Melamine is a poisonous chemical used to fresh milk. Its use caused 290,000 infants suffered from nephrolith at different stages, and 6 of them died from it. The State Quality Inspection Administration subsequently conducted an inspection on infant milk powder, and the result demonstrated that 69 patches of products from 22 companies contained melamine. During the test, the company recalled all the milk powder but they sent the rejected milk containing melamine to a subordinate company to make fluid milk. After the faulty product started circulating, the company neglected consumers’ safety complaints and failed to take immediate remedial measures, such as to warn consumers or recall the product. The resulting serious accidents therefore amounted to a large-scale violation of the public’s health and safety rights. The case pushed the Chinese government to emphasize preventive protection of civil rights from the dangerous sources of unsafe products. The Tort Law reaffirms the producers’ and sellers’ duty to issue warnings about or recall unsafe products already in circulation. What is sure is that the Government has started a process of regulation but still other requirements need further implementation, such as inspections after product circulation, and analysis and organization of consumers’ complaints, statistics, and reports of product accidents. The clarification and enhancement of business operators’ duties, together with more business awareness, not only are beneficial to the protection of people’s rights to life and health, but will also achieve the same effect as strict product liability.
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