論我國商品責任之請求權主體-消費者與第三人區別之必要性與正當性?-
Date Issued
2004
Date
2004
Author(s)
張志朋
DOI
zh-TW
Abstract
“Products Liability”, with which business operators can be charged, is the legal system of the indemnification of loss caused by goods not in compliance with safety standards. Enacted on January 13, 1994, Consumer Protection Law of R.O.C. firstly regulates “Products Liability”. Under Consumer Protection Law, business operators are stipulated to bear “no-fault liability”. The purpose is to assist the victims to avoid the defence of "privity of contract" while asking for indemnity based on "contractual liability", and also the difficulties that may arise in giving proof of the subjective “negligence” of the business operators while making claims under “fault liability”.
However, the fact that the “Products Liability” regulated in Consumer Protection Law can only be applied to protect specific individuals (namely the consumers) may limit the “subject” entitled to claim indemnity in accordance with provisions of “Products Liability” in Consumer Protection Law to “consumers” only, but not to “non-consumers”. In terms of this limitation, Paragraph 3 of Article 7 of R.O.C. Consumer protection Law regulates that “Business operators violating the foregoing two paragraphs and thus causing injury to consumers or third parties shall be jointly and severally liable therefor, provided that if business operators can prove that they are not guilty of negligence, the court may reduce their liability for damages.” Under this quoted provision, both “consumers” and “the third party” are the “subjects” of the “Products Liability” in Consumer Protection Law; nevertheless, the concepts of these two terms are not only ambiguous, but are often confusing and conflicting both in practice and in theory of R.O.C. law.
Chapter I of this Thesis discusses the current trend of, and problems arising from, the “consumer” and “third-party” distinction. Firstly, the concept of “consumer” is not definite in that “consuming behavior” is mostly defined from the view of economics both in theory and in practice of law, where the concept of “consuming” is too abstract to be defined either positively, or with the supplement of “negative conditions” to cover all consuming behaviors. Thus, the concept of “consumer” remains, in reality, unclear.
Secondly, with respect to the concept of “the third party”, this Thesis starts from the “Imputation Principle” of the Products Liability, supplemented with the inspiration of “foreign legislation”, and dissaprove of the opinions adopted in some theory and court judgments that “victims” should be limitated to “those foreseeable by business operators” or “those having connection with the consumer.” If these opinions are not rejected, the purpose for which Products Liability was made--to make up for the damage on the position of the “victims”— will not be fulfilled.
Therefore, Chapter II of this Thesis argues that the differentiation of the subjective between “consumer” and “the third party” in Paragraph 3 of Article 7 of Consumer Protection Law is not only void of “necessity”, but lacks “validity” as well.
In terms of “necessity”, it is proclaimed in writing in Article 51 of Consumer Protection Law that only the “consumer” may claim punitive damage. However, viewed from the intention of Article 51 of Consumer Protection Law, both the “consumer” and “the third party” should be entitled to claim punitive damage. As a result, it is rendered unnecessary to differentiate the “consumer” from “the third party” by deciding whether a claimant receives entitlement to claim punitive damage or not.
In terms of “validity”, since the imputation principle of products liability is based on risk liability, what matters is whether the subject charged for indemnity is qualified as “business operators”, instead of the categorization of the “victim” of the hazardous goods. In other words, the concept of “the third party” refers to “non-consumer”; that is, the unification of the concept “consumer” and “the third party” is equivalent to that of the concept “consumer” and “non-consumer”, namely the “victim”. Therefore the differentiation lacks “validity”.
This thesis emphasizes that the vague and inappropriate distinction of the concept of the “consumer” and “the third party” espoused in theory and in practice of law results in the confusion of judgment in practice; and that it lacks validity to distinguish whether the victim is protected by the legal system of Products Liability or not by the “categorization” of the victim. As a consequence, the concept of the “consumer” and “the third party” should be abandoned when we are to grant or deny entitlement to claim indemnity. Rather, it is proper and reasonable to determine the liability according to the required elements, rather than to whether the categorization of the victim is the “consumer” or “the third party”.
It is not a necessary conclusion that all victims will be “entitled” to claim indemnity according to Products Liability in Consumer Protection Law by imposing no limitation to the “subject” of Products Liability. Similar result can be seen from former part of Paragraph 1 of Article 184 of the Civil Code. Although there is no limitation to the qualification of the “victim”, those required elements such as “damage”, “illegitimacy”, “casual relationship”, or “negligence”, all serve as filters to sift the victim not entitled to claim indemnity out when reviewing the applicable conditions.
Although including both “the third party” and the “consumer” under the protection of Paragraph 3 of Article 7 of Consumer Protection Law makes the explanation and application in practice difficult, the term “the third party” does add the finishing touch. Although it is inappropriate to place Products Liability in Consumer Protection Law since its purpose is to protect the consumers, it is regulated that both “the third party” and the “consumer” are the subject.,Since the concept of “the third party” is not proclaimed in writing, by adopting interpreting “the third party” as all “non-consumer victims suffering from damage”, we can reach the conclusion that “all victims”, either the “consumer” or “the third party”, are the subject of “Products Liability in Consumer Protection Law”.
In this way, while Paragraph 3 of Article 7 of Consumer Protection Law seemingly “obtrusively” lists “the third party” as the subject, it in fact spares room for those who are to explain the articles. It also considerately makes up for the difficulties that may arise due to the “misplacement” of Products Liability in Consumer Protection Law. Seen from this standpoint, the inclusion of the “third party” is in fact a judicious move on the legislature’s part.
Chapter II, Section A of this Thesis explores the potential difficulty in attempting to interpret concurrent regulations if, as this Thesis states that there should not be limitations to Products Liability on the “subject” in Consumer Protection Law, which is identical with the domain of the Products Liability of the subject in Article 191-1 of the Civil Code amended and enacted on May 5, 2000. It results in the major difficulties in explaining Products Liability taking both Consumer Protection Law and the Civil Code into consideration under the “double-track system” of regulation in our law.
From an interpretiveist viewpoint, the three major differences between Products Liability in Consumer Protection Law and that in the Civil Code are 1) the requirement of presumption of negligence; 2) the burden of proof on casual relationship; and 3) the right of claim for punitive damage. Unnecessary differentiation and variance should be eliminated in explanation.
From a policy-maker’s standpoint, the ultimate goal of the regulations on Products Liability is to create a “one-track system” of regulations. It can be achieved by following the example of “special law” to solely legislate Products Liability, or by regulating Products Liability in the Civil Code, or even by placing Products Liability in “Consumer Protection Law”. Whichever approach is taken, we should not differentiate the qualification of the “victim” and give different treatment accordingly on the subject of Products Liability.
Finally, in view of the diverse types of indemnity for damage nowadays, this Thesis suggests that we should consider a shift from “legal system of fault liability” on the “inflictor” side to “legal system of non-fault liability” on the “victim” side in cerrain types of cases, specifically in legal system of compensation for damage due to “contingency”, and avoid the confusion and interference resulting from the concept of fault liability. It might be an opportunity for the development of our legal1 system of Products Liability.
Subjects
消費者保護法第七條
安全或衛生上之危險
消保法第七條
第三人
消費者
消保法
商品責任
消費者保護法
product liability
consumer
Type
thesis
File(s)![Thumbnail Image]()
Loading...
Name
ntu-93-R89A21028-1.pdf
Size
23.31 KB
Format
Adobe PDF
Checksum
(MD5):847f55b6e51512d3cc546d3919a0a79d