On Application Of Assumption Of Risk

The rule of assumption of risk is an common defense in negligence tort,whichoriginated form the Roman dictum “volenti non fit injuria”.Assumption of riskprinciple implies that the victim,acquainting with the conditions of risks,volunteer tobear the damage consequence,so as to the defendant exempt form tort liability.Therule of assumption of risk has been considerably developed in Common Law, butthere are almost no statutes about this rule in Civil Law. Many scholars haveadvocated that the rule of assumption of risk should be defined as an independentdefense.But The Tort Law of the People’s Republic of China only provides fivedefenses,including the victim intention,the third party,force majeure,self-defense andnecessity.Due to the existence of assumption of risk in judicial practice,whetherexisting laws are sufficient to solve this legal problem,or it is still necessary to set upa separate rule for assumption of risk? By means of comparative law and constructionof law,combining the practices of our country and results of theories’ research,thisarticle will assume there cases and do research on the application of assumption ofrisk.The whole article includes three parts: introduction,main body,andconclusion.The main body contents five chapters.Part1is introduction,which summarizes the possible ways to solve therisk-taking situation in our country,and put forward that the research objective is theapplication of assumption of risk.Part2is main body,which contents five chapters.Chapter1assumes there cases related with risk-taking situation,it is on the basis of a brief introduction on the therule of assumption of risk.Chapter2describes three different types of assumption of risk,and its origin anddevelopment process in Common Law,then take a conclusion that the cause of itsdeclining is the development of comparative negligence.This chapter also do detailedresearch on the application of assumption of risk in Common Law.Chapter3summarizes the possible ways to solve the assumption of risksituations in Germany and France:these situations can be settled by the rule of thevictim consent or the contributory negligence.Chapter4focus on other four rules which are related with the rule of assumptionof risk:the victim intention,the victim consent,contributory negligence and priorexemption. In the meantime,there is a further study on their mutual differences.Chapter5reviews in detail the provisions of Article6,26and27of The Tort Lawof the People’s Republic of China,and analysis the application of assumption of risk inour country.Part3draws a conclusion that the existing laws are sufficient to solveassumption of risk situations,and it is not necessary to set up a separate rule forassumption of risk.