On The Legislative Study Of The Assumption Of Risk

As an ancient system,Assumption of risk originated from Roman law.The autonomy of the parties' will is the basis of its development.It has existed as a defense of tort liability law for quite a long time.Assumption of risk has undergone a long period of ups and downs in Anglo-American law and German law.At the same time,the development of Assumption of risk is also closely related to the relevant legal systems,such as victim consent system,with fault system,fault resistance system.These systems interact with each other and have been replacing each other for quite a long time.With the continuous progress of the compilation of the Civil Code,taking Assumption of risk as a part of the compilation of tort liability in the Civil Code,the perfection of its own systems and the cohesion and coordination with the relevant provisions are urgent problems to be solved.Although before the promulgation of Tort Liability Law,experts and scholars represented by Professor Liang Huixing and Professor Yang Lixin advocated adding the Assumption of risk in the compilation of tort liability in the compilation of civil code,they did not use this defense reason when the final law was promulgated,which caused widespread controversy in academia and practice.At present,Article 945 of the second review draft of tort liability of the Civil Code confirms Assumption of risk,which makes the relevant legal system of our country more perfect.However,this article does not strictly distinguish the rule of self-risk from the consent of the victim,and it lacks strict restrictions on the constituent elements as a reason for exemption,so it needs to be further improved.There are 204 related cases retrieved on the Chinese Judicial Documents Network with the keyword of "Assumption of risk".Among them,200 cases were retrieved in the case section of the Fabao database of Peking University with the keywords of "voluntary responsibility","Assumption of risk","self-risk".In addition,200 cases were retrieved in the case section of the Fabao database of Peking University.383 cases,474 cases and 167 cases.This shows that there are a lot of Assumption of risk in our judicial practice.Through the analysis of the development process of Assumption of risk and its application outside the country,what enlightenment will it bring us? How to distinguish it from similar systems? How to construct an effective link with relevant laws and regulations to ensure the rigorous and harmonious legal system? Most importantly,in the current legal environment of our country,how should we construct this rule? Where is the basis for incorporating tort liability into it? Therefore,this article will focus on the above issues,from the conceptual analysis,system comparison and other aspects,to find "arguments" for the increase of Assumption of risk in our country's tort liability compilation,and to analyze the shortcomings in the second review draft of the tort liability compilation of the Civil Code,with a view to contributing to the construction of the relevant legal system.The article is divided into four parts.The first part is an overview of the Assumption of risk.It mainly analyses and summarizes the basic connotation,types and constituent elements of risk-taking,which lays a theoretical foundation for the following discussion.The second part is about the necessity of constructing the Assumption of risk.It also analyses the problems existing in the process of applying the self-risk rule in our country and the necessity of constructing the Assumption of risk in the light of specific cases.The third part is the application of extraterritorial risk-taking rules.Through the analysis of the development and application process of the Assumption of risk in civil law system and common law system,we can learn from the advanced experience.Part IV: Legislative thinking on self-risk rules;Starting from clarifying the scope of application of self-risk rules and improving the content of tort liability provisions,it strictly restricts the application of Assumption of risk in the tort liability codification of the Civil Code,determines the applicable subject and field,coordinates the conflict between Assumption of risk and relevant laws,and clarifies the responsibility of the organizers of risk-taking activities.