产品责任中生产者和销售者之间的不真正连带责任——以《侵权责任法》第五章为分析对象

The Unreal Joint and Several Liability between the Producer and the Seller in the Context of Product Liability

在产品责任中,生产者和销售者之间虽然存在不真正连带责任关系,但该不真正连带责任区别于传统意义上的不真正连带责任。在我国《侵权责任法》中,该不真正连带责任是立法者有意选择的价值调整工具,具有不同于传统不真正连带责任的新特质。生产者和销售者之间的不真正连带责任存在内部追偿权,具有价值缓冲作用。仅从《侵权责任法》的现有规定来看,这种内部追偿权是一种新的权利,而非让与请求权或法定赔偿代位。

In the context of product liability law, there＇ s unreal joint and several liability between the producer and the seller. However, it is different from the traditional unreal joint and several liability. Under the Tort Law of China（ TLC）, the unreal joint and several liability between the producer and the seller is intentionally stipulated to adjust the value, and has the characteristics beyond the traditional one. It exists the fight of recourse between the producer and the seller. This fight of recourse has the func- tion of value buffer. In the context of TLC, this fight of recourse is a new - born fight, not the transfer of a claim nor statutory subrogation of compensation.