Analysis on the legal issues related to the explos

2022-08-02
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Analysis on legal issues related to tempered glass bursting recently, it was reported that the tempered glass door of a shop in a certain place burst and caused serious injuries. If you carefully observe the shower room at home, the glass doors of banks and shops, the turntable on the restaurant table, the tempered glass ceiling of office buildings, the guardrail of pedestrian overpasses, etc., you will find tempered glass almost everywhere. There are more than 6000 articles on Baidu search site related to the explosion of tempered glass. When the explosion of tempered glass causes damage to people, and the victims find the producers and sellers to protect their rights, the producers and sellers often refuse to pay compensation on the grounds of human factors or a certain self explosion rate of tempered glass. As for the self explosion rate, some people say that it is 3%, some say that it is 2%, and others say that it is 3%. There is no consensus. After the tempered glass burst accident, how to protect the rights of the victims, who should bear the responsibility after the tempered glass burst, whether the producers and sellers should bear it, if so, what to bear. For the above problems, this paper mainly analyzes from the legal point of view and puts forward some suggestions and ideas

the cracking of tempered glass is only a surface phenomenon. The cause of the cracking must be found out before determining who is responsible for it. The causes of tempered glass bursting can be divided into external causes and internal causes. There may be many external causes: problems in design, such as unreasonable stress condition of glass caused by poor design; For example, the glass produced in the cold regions of the north is used in the tropical and subtropical regions of the south, so the material selection and model selection are difficult to meet the glass strength requirements; Problems in construction, such as poor construction technology and nonstandard installation and operation, resulting in local glass stress exceeding the bearing limit; In addition, there are external force impact and other reasons. Internal causes mainly refer to the breakage caused by the properties of tempered glass materials, that is, the "self explosion" of tempered glass. It is explained in article A.2, paragraph 1 of gb15763 safety glass for building - Part 2 tempered glass that "as there are tiny nickel sulfide stones in the glass, some of the stones will change crystalline state and increase in volume with time after heat treatment, causing microcracks in the glass, which may lead to self explosion of tempered glass." Therefore, the current national standard recognizes that tempered glass may self explode

after the tempered glass explosion accident, as the victim, on the one hand, we should pay attention to preserving the evidence (such as the relevant evidence of the explosion, the relevant evidence of the calculation of the loss caused, etc.), on the other hand, we should try to find out the cause of the injury. The victim should first look for external causes when looking for the cause of injury. First, it is easier to look for external causes. Some clues can be found from the context of the incident and the design and installation of tempered glass; Second, the subject is found when the external cause is found, and the claims caused by the external cause are relatively clear in law, so it is easier to obtain compensation. If it is found that the glass burst is caused by construction, design or external force impact, the victim can directly claim for compensation from the relevant subject according to law

on the premise of excluding external causes, the damage can only be attributed to internal causes, that is, damage caused by self explosion of tempered glass. At this time, producers and sellers often refuse to pay compensation because tempered glass has a certain self explosion rate. How does the law stipulate this? Article 41 of the tort law stipulates that "the producer shall bear the losses of others caused by the defects of the product." It can be seen that the product stipulated by the law of our country should be no fault, that is, the victim can claim for compensation from the producer if he proves the product defect, the fact of damage and the causal relationship between the two, without proving that the producer is at fault for the damage. According to Article 46 of the product quality law, "defect refers to the unreasonable danger of the product that endangers the personal and property safety of others; if the product has national and industrial standards to protect human health and personal and property safety, it means that it does not meet the standards." In other words, there are two types of defective products: one is products with unreasonable risks, and the other is products that do not meet safety standards. For the former, if the victim can prove that the tempered glass has passed its normal service life or obvious cracks have appeared before bursting, it can be deemed as an unreasonable risk, while the latter mainly refers to unqualified products. As to whether the product is defective, the victim may apply to the relevant public authority for confirmation. In China, both the product quality supervision authority and the people's court have the right to identify product defects. The former is administrative identification, and the latter is judicial identification

the first paragraph of Article 43 of the law on infringement can intelligently take down the sample to save the experimental data and then grab another sample to be taken stipulates: "in case of damage caused by product defects, the infringed can claim compensation from the manufacturer of the product or the seller of the product." Therefore, the victims can claim directly from the producers and sellers. If the relevant public authority determines that the product has defects, that is, the victim provides evidence to prove that the product defects exist, the producer and seller must provide evidence in accordance with Article 41 of the product quality law to prove that: (1) the product has not been put into circulation, (2) the defect causing damage does not exist when the product is put into circulation, and (3) the scientific and technological level when the product is put into circulation cannot find the existence of defects. It can be seen from this that although the current law stipulates that the product is faultless, the victim does not need to prove that the producer has made mistakes in this regard, which is also a qualified supplier of Airbus, COMAC, AVIC and Bombardier, but must prove that the product is defective. If the relevant authorities determine that the tempered glass products do not meet the safety standards, the victim is more likely to make a successful claim; If the relevant authority determines that the product conforms to the safety standard but there is unreasonable risk, because the current national standard recognizes that the tempered glass may explode under certain circumstances, the producer and seller may claim exemption because the scientific and technological level of the product when it is put into circulation cannot find the existence of defects, and the victim's claim may be difficult to obtain the support of the court; If the victim can prove that the producer or seller fails to take remedial measures such as warning or recall after finding that the product has defects after being put into circulation, the producer or seller shall bear the tort liability for the damage caused by the failure to take remedial measures in time or ineffective remedial measures in accordance with Article 46 of the tort law; If the victim can prove that the producer or seller knowingly produces and sells the product with defects and causes losses, he may request corresponding punitive damages in accordance with Article 47 of the tort law. However, due to the lack of professional ability, lack of legal awareness, difficulties in obtaining evidence and other reasons, the victims may have problems such as insufficient preserved evidence and limited probative power of the preserved evidence after the accident, not to mention providing intentional evidence of producers and sellers. It is difficult for the victims to safeguard their rights. In judicial practice, in addition to court decisions, a large number of cases are closed through mediation. In view of the difficulties and insufficient ability of the victims to provide evidence, it is suggested that the victims make appropriate concessions and negotiate with producers and sellers through mediation

since the current national standard does not specify the self explosion rate of tempered glass, it is recommended that relevant departments improve the national standard and make more specific and detailed provisions on the self explosion of tempered glass. In some cases, it is very uneconomical and costly to verify whether the self explosion of a piece of glass is within the allowable range of the self explosion rate. Therefore, we suggest that the government set up a special fund to force the manufacturers producing tempered glass that may self explode to set aside a certain amount of funds for the fund, and set the retention proportion and retention period for the retained funds. The special fund is specially used to compensate for the damage caused by self explosion of tempered glass. In this way, the loss caused by self explosion can be compensated when the existing science and technology can not effectively solve the problem of self explosion

reference

[1] xixiaoming, editor in chief: understanding and application of the provisions of the tort law of the people's Republic of China, 2010 edition, people's court press

[2] huangwenzheng and qianyiwei: Analysis on the causes of curtain wall glass burst, about production and manufacturing, published in Shanghai Construction technology, 2004, issue 4

[3] kongxianghong: Analysis on the causes of burst and anti crack measures of tempered laminated glass used for daylighting roofs, Published in building science, july2010, Volume 26, issue 7

[4] xuhuiqing: safety analysis and preventive measures for curtain wall glass, published in building materials technology and application, 2007, issue 5

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