论产品召回保险的性质

The nature of product recall insurance

产品召回的前提是产品存在系统性缺陷而不管该缺陷是否已经造成损害。产品召回风险是一种或有的法定义务风险,即在一定条件下才存在的法定义务。召回费用是厂商履行召回义务的费用,而非民事损害赔款。因此,产品召回不是厂商对私法责任的承担而是对公法义务的履行。产品召回保险是一种义务保险而非责任保险,其标的应为整批产品虽存在系统性缺陷但尚未造成损害的产品的召回义务,整批产品存在系统性缺陷且已有部分产品造成损害的产品的召回义务应为其除外责任。

The prerequisites for product recall is the existence of systematic defect regardless of whether there is injury or not. Product recall risk is actually a kind of contingent legal obligation, which only exists under given conditions. The expenses for product recall are the fees paid by manufacturers for performing this legal obligation rather than damages paid to the injured consumers as relieves. Product recall is not the manufacturer＇s fulfillment of its pri- vate law liabilities but its public law obligations. Therefore, product recall insurance is an obligation insurance not a liability insurance,whose insured object is the recall obligation for the whole batch of products that have systematic defect but have not caused losses, and the recall obligation for the whole batch of products that have systematic defect and some have caused losses should be excluded.