CHINA Law and Practice Contributed by: Yue Dai, Zhenghao Li and Xiaokun Yuan, King & Wood
proving that the product purchased does not conform to the applicable standards or specifications as pre - sented by the merchant. For tort claims due to product defects, the plaintiff has the burden of proving that: • the product is defective; • damage or loss occurred; and • a causal relationship exists between the defect and the damage suffered. Shifting the Burden of Proof To the defendant For contractual claims arising from product flaws that do not involve a safety hazard, according to the PCRI, if a consumer discovers such a flaw within six months of receiving durable goods such as motor vehicles, computers, televisions, refrigerators, air conditioners and washing machines, the respondent shall bear the burden of proof and must demonstrate that the flaw does not exist. For tort claims concerning product defects, the plain - tiff usually has limited technical knowledge about the product in dispute. Out of consideration for fairness, courts will generally not impose overly stringent evi - dentiary burdens concerning the product defect and its causal relationship to the plaintiff’s loss or dam - age. As long as the plaintiff can present prima facie evidence that the product may be defective and dam - age occurred, the court tends to shift the burden of proof to the manufacturer or seller to prove that the product is not defective. For this purpose, the defend - ant will usually need to prove that the product meets the national and industry standards (if any), does not present any unreasonable danger to a person’s health, and will not damage a person’s property. The “presumptive approach” The same is true in demonstrating the causal relation - ship between the defect and the damage incurred. Given the difficulty for ordinary consumers to establish an unequivocal causal relationship, the plaintiff is usu - ally only expected to prove the existence of a “con - nection” between the injury or damage and the defect. When this has been done, the courts usually take a “presumptive approach” and establish the causal rela -
tionship when there is a high possibility that the defect is the cause of the injury. The inspection procedure In practice, the inspection procedure plays an impor - tant role in determining the existence of product defect and causation. A party may apply to a court for an inspection to determine whether a product is defective or the cause of the injury. The inspection will be conducted by inspection institutions with appropri - ate qualifications or by judicial inspection institutions, which are either appointed based on an agreement between the parties or designated by the court. If necessary, the court may also decide to appoint an inspection institution on its own motion. As mentioned in 2.8 Rules for Expert Evidence in Product Liability Cases , the plaintiff or the defendant may also apply to introduce an expert to give an opinion on the inspec - tion opinion. 2.10 Courts in Which Product Liability Claims Are Brought Courts and Procedures There are no special courts or procedures for product liability cases. However, if a product liability dispute is relatively simple and the amount in dispute is relatively small, a simplified procedure or small claims proce - dure may apply. These two types of procedures are more flexible and are concluded more quickly than the normal procedure for civil litigation. In addition, the judgment or ruling of the first instance court in a small claims procedure is final and not subject to appeal. District Jurisdiction In a contractual dispute the parties may, by written agreement (subject to the statutory rules on hierarchi - cal jurisdiction and exclusive jurisdiction), select the court at the place of: • the domicile of the defendant; • the signing or performance of the contract; • the domicile of the plaintiff; • the location of the subject matter; or • any other place with an actual connection to the dispute. In the absence of a prior agreement of the parties, the court at the place of the domicile of the defendant or
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