OEM (OEM) in the product to be responsible for which to assume?
OEM (Original Equipment Manufacturer), translated as “original equipment manufacturer”, the basic meaning of the brand owner does not directly produce products, but uses their own key core technology and is responsible for the design and development of new products, control of sales channels, specific Processing tasks through the contract ordering way entrusted to other manufacturers of similar products, and then will be ordered to buy out the product at a low price, and directly affixed with their own brand trademark production model. It can be seen that the biggest difference between OEM and traditional production modes is that the actual producers and product trademarks are not the same as the indicated producers.
Those who own brand influence, the industry in need of a wider range of product coverage of brand producers based on the advantages of product concentration, industrial chain extension cost considerations, for this processing mode is very favorable, but also due to the special nature of the OEM processing is different from the traditional mode, the product defects or defects should be borne by whom the responsibility of the laws and regulations of this is still a lack of very clear norms, this article Attempts by the legal relationship of OEM processing, responsibility for sorting out, and accordingly put forward risk prevention and control recommendations, with a view to the practice of dealing with some benefits.
First, what legal relationship exists in the OEM processing?
OEM product production and sales process involves more subjects, the legal relationship is more complex, from the contract and tort aspects of the following groups of legal relationships.(A) the contract
The existence of commissioned processors and trustees based on commissioned processing agreement between the legal relationship between the processing contract, commissioned processors (commodity sellers and nominal producers) and consumers based on the contract between the contract legal relationship.(ii) Infringement
Based on the fact of product infringement, there are commissioned processor as the actual producers and consumers of the rights and obligations between the commissioned processor as a product seller and the nominal producer and the consumer rights and obligations between the commissioned processor and the actual producer of the product (commissioned processor) on the product quality of the internal responsibility for the rights and obligations of the relationship.
Second, OEM processing product quality problems in the responsibility of the bearer
OEM processing in practice, the situation is very complex, the responsibility should not be indiscriminate across the board. In general, according to the commissioner of the whole process of processing of different control to make the following distinction:
Principal such as their own key core technologies, responsible for the design and development of new products, and even the commissioned processor to use the raw material formulations, production processes, packaging materials, the choice of storage and transportation methods have clear requirements and set up quality inspection and supervision of the program, the processor in the production process of the subjective initiative is very small, the product quality of this time should be entrusted to bear the responsibility of the processor;
If the product is unqualified because of the commissioned reasons, such as production conditions, environment, equipment control is not effective, the operation of the production process errors, the packaging or storage and transportation modes of unauthorized changes, then the commissioned enterprise should bear the resulting product quality responsibility.
Product quality problems arising from the responsibility can be divided into product quality default liability and product quality tort liability. According to the "product quality law", product quality infringement refers to the product defects caused by personal, defective products other than property damage. According to the reverse interpretation, product quality default liability can be interpreted as product quality problems have not yet caused personal, defective products other than property damage civil liability, such as does not meet the agreed product quality, does not have the use of performance and other responsibilities.
Contract Law, Tort Liability Law, and Product Quality Law provide different remedies for two different types of product liability.
(A) the liability for breach of contract for the quality of the labeled products
Article 40 of the “Product Quality Law” provides that “the product sold in one of the following circumstances, the seller shall be responsible for repair, replacement, return; to the consumer who purchased the product caused losses, the seller shall compensate for the losses: (a) does not have the performance of the product should have without prior explanation; (b) does not comply with the product or its packaging indicates that the use of the product standards; (c) does not meet the product description, physical samples and other ways to indicate the quality of the situation.” In the production mode of OEM processing, the principal actually controls the sales channels and the sale of products, the consumer based on the contract of sale and contractual relativity can require and can only require the principal to assume responsibility for breach of contract for product quality.
Of course, this is the product quality of the external assumption of responsibility for breach of contract provisions, the principal can be based on the processing contract signed with the commissioned processor, in the external responsibility after the commissioned processor is required to its production behavior does not comply with the agreement caused by product quality problems bear the ultimate responsibility.(B) the assumption of product quality infringement responsibility of the labeled products
Ordinary product quality infringement liability for reference, "Product Quality Law," Article 43 provides that "due to defects in the product caused by personal, other people's property damage, the victim can ask for compensation to the producer of the product, you can also ask for compensation to the seller of the product," which in fact is the producer and seller of a product is not a real Joint and several liability. Producers and consumers together on product defects have legal obligations, and the two obligations of non-performance of the competing, in the product infringement of the fact that occurred, the consumer can arbitrarily choose one of the requirements of its product liability, one of the subjects of the product liability of the responsibility for all the infringement of the responsibility for the elimination of the responsibility.
In the labeling production mode, the commissioned processor is the actual producer, has to ensure that the quality of the products it produces will not cause personal and property damage to the responsibility of the consumer; The commissioner is the nominal producer, he selected specific commissioned processor, in the commissioned processing contract on the commissioned processor production activities put forward specific standards and requirements and monopoly of the labeled product sales activities, whether in appearance or actual risk Control should bear product quality guarantee liability.
As with ordinary product liability, the commissioned processor of the labeled products and the trustee of the labeled product defects have legal obligations and tort facts after the occurrence of the competing responsibilities, the presumption of application of not true joint and several liability has its own reasonableness.
Therefore, in the external liability, consumers can choose any principal or trustee (consumers may be difficult to know the actual producer, but should not be deprived of the right to claim compensation) to assume full liability; in the internal, there is an agreement is still in accordance with the agreement between the commissioner and the trustee of the division of obligations and responsibilities, there is no agreement, by the fault of the party to bear the ultimate responsibility.
Third, the production of OEM products in the commissioned processor's legal risk prevention and control
Based on the above sorting and analysis, for the commissioned processor in the OEM mode of risk prevention and control put forward the following suggestions:
(a) prudent selection of product manufacturers with relevant qualifications and competent product production work. Production qualification is the basis of qualified products, whether a stable and high-quality production technology level for product quality provides credit endorsement, commissioned the processor in the selection of cooperation contractors can focus on its production and processing level.
(ii) The commissioning party to strengthen the supervision of the quality of product production. It may adopt procedures such as sampling and acceptance inspection to supervise the entrusted party’s product production activities and prevent and control product quality problems at the source.
(C) The commissioning party shall specify in the purchase agreement or commissioned processing agreement the quality standards that the products produced by the commissioned party should meet, and make an agreement on the resulting product quality breach of contract and the assumption of tort liability, so as to enhance the commissioned party’s awareness of its responsibility.
(d) Adopting reasonable transportation and storage methods, and ensuring that the products are not subject to acquired product quality problems caused by improper transportation and storage methods at the sales end of the products.
