| Summary: | 碩士 === 東吳大學 === 法律學系 === 99 === In modern society, commercial product defects caused serious hazards on the consumer. Therefore, how to prevent or reduce the generation of hazardous incidents, and how to fill a reasonable risk of damage accident born on merchandise liability become an important issue for consumer interest protection in national legal system to protect the interests of consumers vulnerable victims.
Both Taiwan and Mainland China use tort theories to regulate merchandise liability and serve two main functions: one is to fill the damage, the other is harm prevention. However, from the consumer perspectives, even the damages can be recovered, it can only recover to the status it should be but not to its original status quo. Therefore, since damages filling cannot achieve the real objective of consumer protection, harm prevention objective became more important, especially to prevent consumers from infringement of life, physical, health and property interests. In other words, the merchandise which business operators provides should be in cope with the basic safety requirement and the business operators bear the duty of transaction safety. Thus, the business operator shall ensure and have the duty to prevent harms caused by the defects of the merchandise if the products causes or has the tendency to cause the consumers and third persons’ safety or health.
The so-called business operators’ obligation to prevent harm, means that once the business operators put the products into the stream of commerce, must meet professional standards of technology that was or could reasonably be expected of the safety. In addition, in order to prevent the harm expansion, the business operator also has the warning duty to warn, recall or other preventive methods once found the products in the stream of commerce has the defects to cause consumer or third party’s safety or health. In other words, when business operators breached these duties of prevent and caused the harm to the consumers or third party, the consumer or the third party has the right and cause of action to assert the rights to exclude or prevent the harm even if the harm has not yet caused the real damages.
This thesis will discuss use comparative study in US and German regarding the product liability theories to illustrate both legal systems in Taiwan and Mainland China, especially how business operators’ duty to prevent the harm from the defective product once it put into the stream of commerce, and further analyze what necessary measurements and duties the business operators should have when the defective products has the tendency to cause consumer or third party’s safety or health. Meanwhile, the thesis will provide personal legislative suggestions to cross-straits legal mechanisms for the business operators’ harm prevention duty revision in the near future.
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