[Direct answer]It can be pursued, but the defendant does not have to focus solely on the manufacturer. The law grants the right to choose between the producer and the seller to the victim. According to Article 1202 of the Civil Code of the People's Republic of China (effective January 1, 2021), if a product has a defect that causes harm to others, the producer shall bear tort liability; Article 1203 allows the infringed person to request compensation from the producer or the seller. Defects include three categories: design, manufacturing, and warning. Whether it constitutes a defect is determined by whether there is an unreasonable danger according to Article 46 of the Product Quality Law of the People's Republic of China (amended on December 29, 2018). If the manufacturer or seller knowingly produces and sells products with defects, they can also claim punitive damages.

I. Problem Background and Typical Scenarios

The scenarios of children's products causing injuries are more concentrated than imagined. Firstly, small parts of toys and stationery fall off and are swallowed or inserted into the nasal cavity, with magnetic beads, water guns, and battery-powered luminous toys accounting for the majority. Secondly, the railings of cribs, dining chairs, strollers, and walkers break, buckles fail, and brakes malfunction. Thirdly, the braking or steering components of scooters, balance bikes, and roller skates suddenly break down. Fourthly, the ropes, zippers, and decorative buckles of children's clothing get caught on slides, car doors, and elevators, causing strangulation. The sales channels also change the path of accountability: when purchased from mall counters, the seller and producer information is relatively complete; when purchased from e-commerce platforms, the store may only be a newly registered individual business, and the actual producer only prints a pinyin trademark on the packaging; for goods purchased through cross-border purchasing agents, the instructions often lack Chinese warnings. Most parents first ask the seller to exchange the goods, and after the exchange, they hand over the damaged parts. By the time the child's injuries worsen and they want to claim compensation, they only have a few photos left. Whether hospital records are preserved or products from the same batch are available often determines whether a case can be filed or an appraisal can be conducted later.

II. Key points of contention

First, what category does the defect belong to? Design defects refer to unsafe factors in the product's design itself; manufacturing defects refer to individual products deviating from design standards; and warning defects refer to instructions and labels failing to warn of foreseeable risks. The three types of defects require different lines of evidence: manufacturing defects can be compared with products from the same batch, while warning defects require checking the location, font size, and illustrations of the labels. Second, how is the burden of proof distributed? Victims must prove the existence of product defects, the fact of damage, and the causal relationship between the two; to avoid liability, producers must prove that the product was not put into circulation, that the defect did not exist when it was put into circulation, or that the scientific and technological level at the time could not detect the defect. The producer must provide evidence to support these defenses. Third, should platforms bear liability? E-commerce platforms that know or should know that the goods sold by operators on their platforms do not meet requirements for ensuring personal safety and fail to take necessary measures shall bear joint and several liability with the operators. Fourth, what are the applicable thresholds for punitive damages? If a product is produced and sold despite known defects and causes death or serious harm to others' health, the infringed party may request corresponding punitive damages.

III. Professional analysis by Hengluo Lawyers

After taking over, the first thing to do is to preserve the physical evidence. The toys that caused injuries, broken guardrails, and malfunctioning brake components should be packed into cardboard boxes as is and sealed without cleaning, welding, or submitting them to the merchant for inspection. Keep the packaging boxes, instruction manuals, warning labels, shopping receipts, and order screenshots. When taking photos of the injuries, use a ruler to record the injured areas and the time of the injury. If possible, purchase an identical product as a comparison sample and keep the purchase receipt. Then determine whether an appraisal is needed: check whether the structural strength, material composition, and the dimensions of small parts meet the national toy safety standards, and commission a qualified testing institution to issue a report. If the testing institution does not accept individual submissions, the appraisal can be requested through the court. During the litigation, you can apply for an expert witness to testify in court and provide opinions on the application of standards and the causes of defects. If the market supervision department has imposed administrative penalties or ordered a recall on the batch of products, the penalty decision and recall announcement are among the most powerful pieces of evidence, and you can request the court to obtain them. When claiming compensation, list the medical expenses, nursing care costs, follow-up treatment costs, disability compensation, and mental distress compensation separately to avoid making a general claim for a total amount.

IV. Practical suggestions and legal basis

Article 1206 of the Civil Code of the People's Republic of China (effective January 1, 2021) establishes a recall system for defective products, Article 1207 sets forth punitive damages for producing and selling defective products with full knowledge, and Article 1179 lists the items of compensation. Article 41 of the Product Quality Law of the People's Republic of China (amended on December 29, 2018) stipulates that producers shall bear liability for personal injury caused by defective products, and Article 46 defines a defect as an unreasonable danger to personal and property safety. Where there are national or industry standards ensuring human health and personal and property safety, a defect refers to non-compliance with those standards. Article 55 of the Consumer Rights and Interests Protection Law of the People's Republic of China (effective March 15, 2014) stipulates three-fold compensation for fraudulent acts, and punitive damages of not more than twice the losses suffered for providing goods with known defects that cause serious health damage. Article 38 of the E-commerce Law of the People's Republic of China (effective January 1, 2019) clarifies the platform's responsibility for personal safety-related products. Materials should be prepared in five groups: the actual products causing injuries, packaging and instructions, purchase receipts and order records, medical treatment and appraisal materials, and products of the same batch or administrative handling documents. For the handling process, please refer to our firm's guidelines.Legal services for personal injury and medical disputes\nPage.

5. Henglu Law Firm's Advice

Here are four reminders. First, the damaged parts are more important than the invoice. Merchants are willing to replace the items because they can recover the damaged parts; once the damaged parts enter the other party's warehouse, there will be no object for defect identification, and it will be hard to provide evidence with just photos. Second, don't sign settlement agreements containing confidentiality clauses. Some merchants are willing to pay a little more on the condition that parents cannot disclose the information to the outside world and agree to waive all subsequent claims. If the child develops complications during adolescence, the agreement will become an obstacle. Third, don't just sue the online store. The registered capital and compensation capacity of online stores are often insufficient. The producer's name, address, and implementation standards on the packaging are the key to seeking compensation. If necessary, apply to the court to retrieve the operator's real name information from the platform. Fourth, pay attention to the three-year statute of limitations. The statute of limitations for product liability claims starts from the date when the claimant knows or should have known about the damage to their rights and the obligations of the other party. For cases with a long latent period of injury, the starting point may be postponed, but the difficulty of providing evidence will increase with time. Keeping photos of the packaging and warning labels during the purchase stage is the lowest-cost form of prevention.

VI. Frequently Asked Questions

Q1: If a toy lacks warning labels and causes injuries, can we directly sue the manufacturer?

It's possible, and there's no need to negotiate with the seller first. According to Article 1203 of the Civil Code of the People's Republic of China (effective January 1, 2021), the infringed party can either request compensation from the producer or from the seller. The two parties can seek recourse from each other, and the choice lies with the victim. The lack of warning labels constitutes a warning defect. It's necessary to prove that the product poses a foreseeable risk of misuse but the labels fail to provide warnings, such as missing information about the applicable age, prohibition of swallowing, and the need for adult supervision. When suing, submit the packaging, instruction manual, and actual product together, and apply for an appraisal if necessary. If the producer fails to indicate their real name and address on the packaging, you can first sue the seller and require them to disclose the source of the product.

Q2: To prove that the product has defects, which reports do I need to submit for inspection?

The products shall be inspected according to the types of defects. For manufacturing defects, comparative analysis of the same batch and material composition analysis can be conducted, and a product quality inspection report shall be issued; for structural strength issues, static load, impact, and durability tests can be performed; for whether small parts are easily detachable, tensile and torsion tests shall be conducted in accordance with national toy safety standards; for the length and position of drawstrings on children's clothing, measurements shall be made in accordance with the technical specifications for children's clothing safety; for electrical products, insulation, temperature rise, and battery protection tests shall be conducted. The inspection agencies must have the corresponding qualifications. Personal submissions of inspection reports are often rejected, and the inspection can be entrusted to a court or applied for appraisal. The sampling inspection reports, recall announcements, and administrative punishment decisions of the market supervision departments can be directly used as evidence of defects.

Q3: Can the attorney's fees in a product liability case be charged as a percentage of the amount of compensation received?

It can be negotiated, but there are restrictions. Lawyer's fees are subject to market-regulated prices, and contingency fees are charged at a certain percentage of the amount of compensation obtained, which is agreed upon by both parties in the power of attorney contract and usually decreases as the amount of the subject matter increases; cases requesting alimony, child support, pensions, relief payments, and work-related injury compensation cannot implement contingency fees. Product liability cases often adopt a mixed model of basic fees plus risk commissions. Litigation fees and appraisal fees are not charged by lawyers. According to the "Measures for the Payment of Litigation Fees" (implemented on April 1, 2007), they are prepaid by the plaintiff and borne by the losing party. Before signing the contract, check the charging items, charging bases, and payment points to avoid disputes in the future.

Q4: How long does it usually take from the time a defect appraisal is commissioned to the issuance of the conclusion?

Generally, the appraisal period lasts between two and four months, and it is even longer for complex cases. The appraisal period depends on whether the inspection materials are complete, the number of inspection items, and the institution's scheduling: the testing of small toy parts usually takes one to two months, the analysis of material components and failure causes takes two to three months, and multi-item tests involving electrical safety or combustion performance may take more than three months. In litigation, applying for appraisal involves selecting an institution by the court's random draw, paying fees, submitting inspection materials, and issuing an opinion letter, plus the time required for procedural processing. If the inspection materials are missing or have been damaged, the institution may refuse to accept them. This period is not included in the statute of limitations, so the overall period will be significantly extended, and sufficient time should be reserved before filing a lawsuit.

Q5: Before opening the toy packaging, should I take a photo first or keep the receipt first?

Do two things at the same time, with the order being to first film the outer packaging and then open it. Film the front and back of the packaging, the barcode, the age-appropriate label, and the warning message, and keep the intact plastic wrap and seals to prove that the product has not been tampered with. Record a video of the unpacking process to show the internal accessories and the instruction manual. Keep the shopping receipts, invoices, order screenshots, and payment records. For online purchases, save the product page snapshots and store information. After the product causes an injury, immediately seal the remaining parts and do not hand them over to the merchant for inspection. These actions only take a few minutes, but they determine whether it will be possible to complete the defect comparison and provide evidence of the same batch later on.

The above answer is based on the judicial practice in Beijing. The adjudication standards in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Personal injury legal services·Beijing Hengluo Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In the event of a dispute, please consult a practicing lawyer in time.