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产品普遍性缺陷流通后补救义务是“停止侵害”的特殊表现形式,违反该义务承担的仍是缺陷产品责任。《产品质量法》第46条的前后段实际上将产品缺陷区分为个体性缺陷和普遍性缺陷。《侵权责任法》第46条的适用范围为流通后发现的产品普遍性缺陷。产品流通后普遍性缺陷的发现适用“提示规则”与“明知规则”。该条规定的警示义务是事后警示义务,不包括说明义务。召回义务是针对事后警示无法补救的严重缺陷的主动召回,不包括责令召回。“等补救措施”是指警示、召回措施均无法满足“及时且有力”的要求时所能采取的其他补救措施。未采取或者未及时采取补救措施造成损害的,应当对全部损害承担侵权责任。采取补救措施不力造成损害的,应当根据实际情况部分承担侵权责任。根据对第46条第2句的反向解释,生产者、销售者及时采取了有力补救措施,可以免除侵权责任。
The universal remedy of product defects after circulation is the special manifestation of “stop infringement”, and the responsibility of breach of the obligation is still defective. Article 46 of the Law of Quality of Products actually divides product defects into individual and generalized defects. The scope of application of Article 46 of the Tort Liability Act is the product’s common defect found after its circulation. The discovery of common defects after the circulation of products applies “prompting rules” and “knowing rules”. The provisions of the warning obligation is a warning after the accident, does not include the obligation to explain. The recall obligation is a proactive recall of serious defects that could not be remedied afterwards, excluding orders to recall. “Remedy ” refers to the other remedial measures that can be taken when neither the alert nor the recall measures meet the requirements of “prompt and forceful”. If the damage was not taken or the remedial measures were not taken promptly, the party shall bear the tort liability for all the damages. If remedial measures are not taken to cause damage, the tort liability should be partly borne by the actual situation. According to the reverse interpretation of the second sentence of Article 46, producers and sellers took prompt and effective remedies to relieve the tort liability.