Product Liability 2009 - Arnold & Porter LLP

Lovells LLP China
3.4 Can claimants re-litigate issues of fault, defect or the
capability of a product to cause a certain type of damage,
provided they arise in separate proceedings brought by a
different claimant, or does some form of issue estoppel
prevent this?
Yes, a different claimant can re-litigate the same issues. “Issue
estoppel” only applies between parties to a proceeding, not in
respect of any third party.
3.5 Can defendants claim that the fault/defect was due to the
actions of a third party and seek a contribution or
indemnity towards any damages payable to the claimant,
either in the same proceedings or in subsequent
proceedings? If it is possible to bring subsequent
proceedings is there a time limit on commencing such
proceedings?
If the fault/defect was due to the actions of a third party, the
defendants may: (1) apply to the court to join the third party as a codefendant
so that the court is able to determine the liability of the
defendant and of the third party; or (2) seek an indemnity from the
third party by filing subsequent proceedings.
If the defendant decides to file subsequent proceedings, the
limitation period for filing the subsequent proceedings is two years.
(Please refer to the answer to question 5.2 for more information
about the statute of limitation.)
3.6 Can defendants allege that the claimant’s actions caused
or contributed towards the damage?
Yes. (Please refer to the answer to question 3.1.)
4 Procedure
4.1 In the case of court proceedings is the trial by a judge or a
jury?
There is no jury system in China. Pursuant to Article 40 of the PRC
Civil Procedure Law (“Civil Procedure Law”), trial is conducted
by a single judge or a judicial panel consisting of an odd number of
judges and/or assessors. Assessors have the same rights and
obligations as judges.
4.2 Does the court have power to appoint technical specialists
to sit with the judge and assess the evidence presented by
the parties (i.e. expert assessors)?
Only the judge has the discretion to assess the evidence presented
by the parties. However, the parties may retain experts to give
explanations of certain technical issues. The experts may be
questioned by the court and by the opposing party at trial. In certain
cases involving complex technologies, courts have asked for an
expert to assist the courts directly.
4.3 Is there a specific group or class action procedure for
multiple claims? If so, please outline this. Is the
procedure ‘opt-in’ or ‘opt-out’? Who can bring such
claims e.g. individuals and/or groups? Are such claims
commonly brought?
The Civil Procedure Law does provide for a “joint action
procedure” for claims brought by more than two claimants.
ICLG TO: PRODUCT LIABILITY 2009
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A joint action is available when: (1) there are more than two
claimants; (2) the claims are the same or of the same category; (3)
the claimants agree to their claims being tried in one action; and (4)
the court considers the claims can be tried in one action (i.e. the
court has jurisdiction over all claims and the same civil procedure
is applicable to all claims).
If the number of claimants exceeds ten, the claimants may proceed
either by themselves or they may elect two to five representatives to
act on their behalf to proceed with the action. The representatives’
acts are binding upon the claimants they represent and the court
delivers one judgment which determines what damages should be
awarded in respect of which claims.
The procedure is “opt-in”. According to the Civil Procedure Law, if
the number of claimants cannot be determined upon filing of the
action, the court may issue a public notice stating the particulars of the
case and the claims, and requesting affected parties to register with the
court within a certain time period. If the registered claimants fail to
agree on representatives, the court may designate representatives
among the claimants. The judgment delivered by the court is effective
and valid for all registered claimants and also for those unregistered
claimants who file proceedings before expiry of the limitation period.
Very few joint actions have been brought in China and the rules and
practice are still under development. Most joint actions that have
been brought relate to securities fraud.
4.4 Can claims be brought by a representative body on behalf
of a number of claimants e.g. by a consumer association?
No, claims cannot be brought by a representative body on behalf of
a number of claimants where the representative body is not directly
harmed.
4.5 How long does it normally take to get to trial?
For a domestic case at the first instance, the court should deliver its
judgment within six months of the date the case was accepted by the
court unless the Chief Judge of the court extends it by another six
months. There is no time limit for the court to deliver a judgment
if there are any foreign elements to the claim (i.e., one or more
parties are foreigners or foreign enterprises; or the subject of the
claim is located outside of China).
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
No, under the Civil Procedure Law, there is no provision to allow
the court to try preliminary issues. However, if certain facts of the
case are evident, the court may issue a judgment on those facts at an
earlier stage of trial.
4.7 What appeal options are available?
If one party is not satisfied with a decision made by a first-instance
court, it is entitled to appeal to the next highest court as a matter of
course, with the lower court judgment stayed in the interim. The
decision rendered by a second-instance court is deemed final.
Where the court of first instance is the PRC Supreme People’s
Court, the decision rendered by the Supreme People’s Court is final.
A party may still apply for “review” of a final judgment by a higher
court or by the issuing court, at the court’s discretion. The Supreme
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