On The Application Of Assumption Of Risk In China

The defense of assumption of risk indicates that if a person has already understood the potential risks yet still voluntarily engaged in such dangerous activities,he shall not be compensated for the incurred injury.This rule arising from Anglo-American law system is an effective defense in the field of tort law.Although the common situation concerning risk self-assuming in China involves victim knowledge of risk and voluntarily engagement,it does not necessarily apply the assumption of risk rule which can exempt defendants from tort liabilities.Nowadays,some cases related to assumption of risk have frequently occurred in judiciary practice in China.For instance,a plaintiff voluntarily participated in an outdoor activity and claimed for compensation after injury.Due to the lack of stipulations,certain similar rules of defenses in tort law have been confusingly invoked despite of their differences in the trial.In addition,some cases involved similar facts have totally different final judgments.The controversial issue focuses on the legal liabilities of defendants: whether their conducts constitute liabilities in tort? Whether they are qualified to reduce or even exempt the liabilities? Therefore,to improve and unify the application of the assumption of risk in Chinese tort law is very crucial.Firstly,clarify the respective characteristics,application scopes and legal results of certain similar rules through comparison in order to resolve the different situations of assumption ofrisk.Secondly,classify and sort out the relevant rules to which the different types of assumption of risk could apply: if a victim consented to be injured by the other party,the defense of consent can block the illegality of intentional infringement;if both parties breached the duty of care as a reasonable person,the rule of comparative negligence could apportion the liabilities between the parties properly;If a victim voluntarily participated and suffered the loss from the risks inherent in activities,the defendant did not have to assume the liabilities since no duty of care had been breached;If parties have agreed to exempt the liabilities before injury,the effective exemption clause can also be applied in relevant situations.In particular,if the clause entered into by and between the equal parties,the exemption agreements on personal injury caused by general negligence can be in effect.At last,discuss the necessity of the introduction of assumption of risk rule in China to resolve the pertinent issues.Nevertheless,Tort Liability Law of PRC has not defined the assumption of risk as a generally effective defense.Through the analysis of the regulations and applications in the two major legal systems,we have witnessed the trend of declining of this rule.Furthermore,the current rules in Chinese tort and contract law,such as victim intentionality,fault liability,exemption clause and comparative negligence have completely covered the every type of assumption of risk.As a result,the rule has no independent value.Accordingly,it is not necessary to introduce this rule to Chinese tort law system which otherwise would create confusion in our judiciary practice.The thesis consists of three parts.The main body is made up of four chapters.Chapter one briefly introduces several kinds of situations where risks are voluntarily assumed,and lists certain relevant cases concerning assumption of risk in Chinese judiciary practice,and founds out that the local courts have different opinions on the judgments of the legal liabilities of defendants.Chapter two introduces and compares the four similar rules: victim consent,victim intentionality,pre-exemption of liabilities and comparative negligence,which further lays a foundation for the judiciary application in the next Chapter.Chapter three elaborates the relevant laws and rules to which the different situations of assumption of risk should apply.Chapter four denies the necessity of introduction of assumption of risk to China.In the US,more and more doubts have arisen about assumption of risk rule since the occurrence of comparative negligence and the theory of apportionment of liabilities.In France and Germany,some situations of risk assumption have to be addressed by consent of victim,and the others are regulated by comparative negligence.Therefore,this rule has been declining in other countries.In addition,the relevant rules in Chinese tort and contract law have completely covered the every type of assumption of risk.As a conclusion,this rule has no independent value in Chinese legal system.