Negative Assumption Of Risk’s Independence

Since assumption of risk rules established on 18th century, it was dominated of the negligence tort law. But from the beginning of the middle 20th century, assumption of risk’s position gradually declined in many countries. Many scholars and judges regard assumption of risk no longer as an independent defense in tort law. Since then, the topic of assumption of risk’s independence has been debated constantly.Presently, Chinese legislation has no provision of the assumption of risk. But judges cite the rules of assumption of risk in judging practise. That’s why we should study the theory of assumption of risk ugently.In Chinese law science, research of the rules of assumption of risk is relatively few. Throughout scholars and experts’ published articles, they speak highly of assumption of risk’s independence mostly. Many scholars suggest recommending assumption of risk into China, but in Chinese Tort Law which took effected on 2010, legislators did not put assumption of risk in it. However, after studying the rules of assumption of risk, author would agrees with legislators.In this thesis, the main body will be organized in five parts. First of them, it will clarify assumption of risk in three aspects, which include assumption of risk’s definition, elements and types of assumption of risk. Secondly, it will tell the historical evolution and present situation of assumption of risk in United States, Germany, France and Japan. Then it analyses assumption of risk’s general situation in our country.In the third part, the thesis denies assumption of risk’s independence, by analysising the relationship between assumption of risk with Comparative Negligence and the duty of care, comes out that assumption of risk is no longer an independent defense in tort law any more. In the fourth part, it will introduce and discuss scholars’ suggestion in our country recently which lead to assumption of risk’s acquisition. And it comes out the conclusion that assumption of risk should not be drawn into China. In the end, the thesis reaches the conclusion:Assumption of risk has no independence. China should complete other related rules in tort law to make negligence tort regulation better.