Assumption Of Risk

As an ancient defence, Assumption of Risk was growing vigorously in eighteenths and nineteenths centuries during the Industrial Revolution, which became the defence for the employers to exempt from liability in industrial accidents. With the adjustment of social and economic policies as well as the change of concepts in law, on one hand, the rules was abandoned in the field of employment; on the other hand, it has been adopted effectively in other areas of Torts from several aspects. In addition, there are more meanings added to it during the process of the court decision. Although there is a dispute regarding the abolition issue of the rule (when it is in different terms), with the considerable impact of the Comparative Negligence doctrine, it is still irreplaceable in certain areas, and has been proven in practice. China does not have any related law about Assumption of Risk, whilst, in practice, the judges often make the decisions by referring the rule. As a statute country, it is harmful to have these types of judge-made law, which in turn, showing the reality and necessity of the immigration of the rule (Assumption of Risk). Due to the gap of legislation and the lack of academic research, problems regarding the unclear understanding of the concepts and the ambiguous positioning of the situations' nature occur frequently, when people are dealing with related issues in real life. Take the sports torts as an example, which is the field that Assumption of Risk has been widely used, this type of cases are usually treated as Victim Consent, which blurs the boundary between Assumption of Risk and Victim Consent. Under such circumstances, it is not only against the rational distribution of responsibility, but also detrimental to the legal rights protection of the parties.This paper will provide a relatively comprehensive analysis of the basic theory of Assumption of Risk, following this, there will be a clear identification about its scope of application. Lastly, a system will be designed by using the advanced practices in other countries as references, upon this, taking the reality of China into consideration cautiously. The thesis is divided into three chapters. A brief introduction of each chapter is given below:With the aim to provide a comprehensive understanding of Assumption of Risk and to build the theoretical foundation for the elaboration in the later stages, Chapter One reviews the basic concepts of Assumption of Risk thoroughly. Initially, an overview is provided in terms of its history, key elements of its system construction and types. In the following stage, the definition of Assumption of Risk is clarified based on a precise analysis, which tries to predict its development in the near future from its history, to capture its real nature from its construction and to take the essence from its existing types.In Chapter Two, an analysis is conducted with a focus on three key elements of the assumption of risk behaviors, which are the subject, the object and the intention. Through relevant cases and legislation, more details are given in terms of analyzing the restricted applicable subject of Assumption of Risk and the applicable areas of it, which are with a preference. Moreover, the expression of intention will be further discussed, on the basis of the outline of types of Assumption of Risk in Chapter One. With clarifying the scope of application of Assumption of Risk, on one side, it affirms the feasibility of Assumption of Risk system in its scope of application and the necessity of its exit; on the other side, it denies the abuse of the Assumption of Risk system.Chapter Three demonstrates the ultimate intention of the paper, which addresses the value and significance of Assumption of Risk by referring to legislative and practical experiences in other countries. Furthermore, it justifies the feasibility of constructing the system of Assumption of Risk in China. Moreover, specific legislative suggestions are given in terms of its system construction.