Definition Of Assumption Of Risk In Tort Liability Law

Assumption of risk is a defence in Tort Liability Law. Scholars in academic circles have different views about whether assumption of risk should be written in Tort Liability Law, and they also have different opinions on the name, the concept and constitutive requirements. Sometimes judges apply assumption of risk ruling case. Because our country has no written assumption of risk in the tort liability law and has no provided the basis for judge, similar cases have different verdicts.That is not conducive to maintaining the authority of the law in our country. We should have unified and comprehensive understanding for name, concept and constitutive requirements, which help us have more in-depth discussion about assumption of risk. Unified and comprehensive understanding is also basis for assumption of risk which is written in Tort Liability Law. Assumption of risk has rich contents. Constitutive requirements of assumption of risk is very logical.Through the method of historical research and comparative research methods,this paper which wants to define assumption of risk accurately analyses the existing views about constitutive requirements of assumption of risk, putting forward a new constitutive requirements.In this paper, in addition to the preface, including the following three parts:The first part:assumption of risk summary. This part discusses the name of assumption of risk and concept of assumption of risk, discussing the development history of assumption of risk and application status of assumption of risk at home and abroad.The second part:The necessity of the rules which is applicable in China. This part through three aspects to prove the necessity of assumption of risk which is applicable in China. First part is that assumption of risk helps function of Tort Liability Law. Second part is that assumption of risk is irreplaceable. Third part is that application of assumption of risk has realistic significance.In the second part, the paper clear the difference between assumption of risk and concepts which are similar to assumption of risk. The third part:Constitutive requirements of assumption of risk. The first, this part discusses opinions of assumption of risk,which have been put forward, pointing out shortcomings of previous opinions. The second, By analyzing the theory of subjective fault and the theory of objective fault,the paper holds on that constitutive requirements of assumption of risk should be based on the theory of objective fault. Considering characteristics of assumption of risk, the paper puts forward that opinion, and the paper also think that purpose of constitutive requirements of assumption of risk is that proving the offender has no fault. The last, The paper puts forward new constitutive requirements of assumption of risk. The new constitutive requirements of assumption of risk include that the common behavior, activity has risk, they have common purpose which is not contrary to public order, they have same understanding of the risk, the victim is willing to take a loss.The forth part:Analysis of legislation which is about assumption of risk.