CHINA Law and Practice Contributed by: Yue Dai, Zhenghao Li and Xiaokun Yuan, King & Wood Mallesons
Shifting the Burden of Proof To the defendant
to the court to collect the report from the manu - facturer. In addition, if a party refuses to provide evidence without any proper justification, despite indica - tions that the evidence is in its possession, and the other party bearing the burden of proof for a particular fact claims that the evidence is unfa - vourable to the party that possesses it, a court may presume that the relevant claim has been established. 2.8 Rules for Expert Evidence in Product Liability Cases To resolve technical issues in a product liability dispute, the court may instruct a qualified institu - tion or person to inspect and test the product in detail upon application by a party or on its own motion. The person responsible for the inspec - tion may be present during the hearing to give testimony on the results of inspection, upon the application of a party or if the court considers it necessary to hear the testimony. The judge hearing the proceedings may pose questions to the expert, and any party may cross-examine the expert. Either party may also introduce other experts to provide professional opinion on the inspection or other technical issues during the hearing. Where permitted by the court, experts may address each other regarding issues arising in the proceedings. 2.9 Burden of Proof in Product Liability Cases In product liability proceedings, 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.
In many cases brought by consumers, 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 evidentiary burdens concerning the product defect and the causal relationship on the plaintiff. As long as the plaintiff can present prima facie evidence that the product may be defective, 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 defendant will usually need to prove that the product meets the national and industry stand - ards (if any), does not present any unreasonable danger to a person’s health, and will not damage a person’s property. Notably, for contractual claims arising from prod - uct flaws that do not involve a safety hazard, according to the PCRI, if a consumer discovers such a flaw within six months upon receiving durable goods such as motor vehicles, com - puters, televisions, refrigerators, air condition - ers and washing machines, the respondent shall bear the burden of proof and must demonstrate The same is true in demonstrating the causal relationship between the defect and the dam - age incurred. Given the difficulty for ordinary consumers to establish an unequivocal causal relationship, the plaintiff is only usually expected to prove the existence of “connection” between the injury or damage and the defect. When this has been done, the courts usually take “pre- sumptive approach” and establish the causal relationship when there is a high possibility that the defect is the cause of the injury. that the flaw does not exist. The “presumptive approach”
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