Simon Says: Can Victims Claim Against Approved Defective Products?

Published
11/30/2017 by

This is the fortieth in a weekly series of legal advice provided in a short and entertaining story format.

 

每周轻松有趣法律常識故事系列 - 第40篇

 

 

Keywords: Product Defects, Consumer Rights, Damages

 

关键词:产品缺陷;消费者权益;损害赔偿

 

 

Can Victims Claim Against Approved Defective Products?

 

西门说法:产品符合国家标准,消费者使用后遭受损害怎么办?

 

Helen is a lively and beautiful girl who likes to nurture her skin with cosmetics. One day when Helen was strolling down the street and passed the cosmetics shop she frequently visited, she remembered she was running short of masks, so she decided to go in for a look. “Oh, you are here again. Now we have some new products," the shopkeeper greeted her with a smile. “Nice to see you again. I just stopped in for a look," Helen said.

 

Helen是一个活泼、漂亮的女孩子,平时喜欢用一些化妆品保养自己的皮肤。一天阳光明媚,她迈着轻盈的步伐走在街上。路过那家自己熟悉的化妆品店时,她想起自己的面膜快用完了,就走进去看看。“哎呀,你又来了啊,最近刚上了新货。”店员笑呵呵地说。“是呀我来看看。”Helen回答说。

 

Soon Helen retuned home with some masks and a lighted heart. In the evening, she took out a mask she had just bought and applied it onto her face as usual. However, after half an hour, she felt her skin itching and found that her skin was swollen and itchy. Things went even worse later. Helen fainted. After diagnosing, her doctor advised her, “it was an allergy. You must be allergic to some ingredients in cosmetics. That’s why you suffered an anaphylactic shock.”

 

Helen买了面膜后走回家,心里美滋滋地。晚上,她就把面膜取出来,按照以往的习惯使用,不料半个小时后,皮肤红肿而且奇痒无比,最后竟然晕过去了。医生经过诊断,对她说:“这是你对化妆品中的某些成分过敏,导致了休克。”

 

Helen was now in despair but after recovering, she managed to go to the cosmetics store with the rest of the masks. Helen told to the shopkeeper, “your mask caused me suffered so much. I won’t buy your stuff anymore! There is no warning on the package and you did not cause me any attention about the risks. I spent 5,000 Yuan for medical treatment. Now I demand you to compensate my loss!" The shopkeeper replied, "this cosmetic product is in line with national standards. You are allergic to it. That’s your problem, not our fault. Even if there is a problem with the quality of the product, you should claim your loss against the manufacturer. We are sorry about it. But we cannot compensate you for that.”

 

Helen的心情糟透了,等到身体好了些,就拿着剩下的面膜就去找化妆品店。Helen对店员说:“我好好的一个人被你们的面膜害惨了,我以后再也不买你们的东西了!这个面膜上没有注意事项,你们也没有给我说明会有这种风险,我看病花了5000块,现在我要求你们赔偿我的损失!”店员说:“这个化妆品是符合国家标准的合格产品,你过敏是你自己的皮肤体质的问题,不是我们店的责任。就算是产品质量有问题,也应该去找产品的生产企业。我们很遗憾,但我们不能给予你任何赔偿。”

 

What should Helen do if such product is in line with the national standards?

 

产品符合国家标准,Helen使用后遭受损害怎么办?

 

 Simon Says - Episode 40: Can Victims Claim Against Approved Defective Products?

 

Prof Simon Says:

西门教授说法:

 

Despite the fact that the masks Helen bought are in line with the mandatory national standards, Helen, as a consumer not dealing in the ordinary course of her business, was not informed of the safety-related risks and has suffered an anaphylactic shock after normal use of the product. Such risks of using the product are unreasonable; therefore, it shall be deemed as a “defective product”. In addition, even if the anaphylactic shock induced by the cosmetic product is related to Helen’s own special physical conditions, the manufacturer should have provided proper reminders and instructions on the package, or else the product shall be considered as “defective”. Under the China’s Product Quality Law, if Helen suffered personal and financial losses due to the defect of the product, she is entitled to claim such losses from the cosmetics shop or from the manufacturer. As a result, the cosmetics shop shall be liable for Helen’s loss.

 

Helen购买的面膜,尽管属于符合国家标准的产品,符合强制性标准,但是Helen作为普通消费者,不会想到用面膜会发生安全危险,购买后正常使用时却发生了过敏休克,有“不合理的危险”,因此仍然属于缺陷产品。除此以外,就算化妆品引发的过敏休克和Helen自身的特殊体质有关系,生产者也应该给予提醒与说明,否则仍然属于缺陷产品。根据《消费者权益保护法》,Helen因为商品缺陷而使自己的人身、财产受到了损害,既可以向销售者化妆品店要求赔偿,也可以向商品生产者要求赔偿。化妆品店应当承担赔偿责任。

 

Legal Basis:

 

The Law of the People's Republic of China on Product Quality

Article 46: Defects mentioned in the law are referred to the irrational dangers existing in the products that threaten the safety of person or properties or products that do not conform to the standards set by the State or the specific trade if there is any.

The Law of the People's Republic of China on the Protection of Consumer Rights and Interests
Paragraph 2 of Article 40:

A consumer or other injured party whose person or property is harmed due to a commodity defect may demand compensation from the seller or may also demand compensation from the producer. Where the responsibility lies with the producer, the seller, after settling compensation, shall have the right to recover from the producer. Where the responsibility lies with the seller, the producer, after settling compensation, shall have the right to recover such compensation from the seller.

 

法律依据:

《中华人民共和国产品质量法》

第46条:本法所称缺陷,是指产品存在危及人身、他人财产安全的不合理的危险;产品有保障人体健康和人身、财产安全的国家标准、行业标准的,是指不符合该标准。
《中华人民共和国消费者权益保护法》

第40条第2款规定:
消费者或者其他受害人因商品缺陷造成人身、财产损害的,可以向销售者要求赔偿,也可以向生产者要求赔偿。属于生产者责任的,销售者赔偿后,有权向生产者追偿。属于销售者责任的,生产者赔偿后,有权向销售者追偿。

 

 

For more about this or to contact Professor Simon Choi at:

Emai: simonhkchoi@163.com,

Phone: +86 13823677853 or

WeChat: simonhkchoi

 

Simon Choi

About the Author: Professor Simon Choi

Prof Simon Choi, solicitor and linguist, is an international lawyer, qualified to practise law in England & Wales and in Hong Kong, China. Simon graduated from law schools of the Peking University, the University of London and the University of Hong Kong respectively, with an in-depth knowledge of Chinese laws and common laws and with more than 20 years experience in China practice and international trade, investment, finance, merger & acquisition. He is an adjunct professor of laws at the Zhongnan University of Economics and Law. Simon is the founding partner of Acme Ardent and can be reached at simonhkchoi@163.com, +86 13823677853, or WeChat ID: simonhkchoi

 

FEATURED EVENTS & PROMOS See All

Reserve your Christmas Turkey at George and Dragon

Get your Christmas turkey incl. stuffing, gravy, and cranberry sauce at George & Dragon starting at 980RMB. Prefer to dine on ham? We offer a whole ham (5+kg) for 880RMB only! Contact us at 0755 - 2669 8564, 15987949007 or manager@george-dragon.com


Christmas Lunch Buffet at George & Dragon British Pub
Christmas Lunch Buffet at George & Dragon British Pub

Join us at the G&D the 25th for an all-you-can-eat British Christmas lunch buffet! We'll serve you a delicious turkey roast wit...

Join Terrace's 12th Anniversary Party
Join Terrace's 12th Anniversary Party

Limited free drinks, lucky draw, live show, anniversary cakes!