Study On Assumption Of Risk Under The Compilation Background Of The Civil Code

In the context of the compilation of the Civil Code,the “assumption of risk” was written into the second and third drafts of the Tort Liability Volume of the Civil Code,finally written into the Civil Code passed on May 28,2020.The rule of assumption of risk is a long-established extraterritorial rule,and it is a full defense of the Tort Liability.That is to say,when the plaintiff voluntarily accepted the risk,the defendant was free from the negligence responsibility.This rule was originally applied by the countries,which is in the common law system,to employer-employee relations to serve industrial development.Then,with the changes of the society and economy,the assumption of risk is gradually replaced by the comparative fault,and it is going to decline.Although the assumption of risk is not closely related to our country,at present,whether it is an endless stream of risk movements in social reality or a series of risk damage cases in judicial practice,it is releasing a risk signal: The necessity and reasonableness of exempting the offender from liability when the victim is voluntarily in the risk and suffered damage.Risk behavior is different from other infringement behaviors,because risk is the essential attribute of behavior and it is inevitable.Victims are aware of the risk and make a sign to intervene it.However,when the risk of its own choice occurs,it defends itself on the grounds that it does not show that it bears the damage,and transfers the responsibility for the damage to the offender,which violating the consistency of rights and obligations,and contrary to individualism.With the development of the insurance system,the ability of social individuals to take risks has risen significantly.Corrective justice,which once regarded victims as weak and over-protected,has gradually been allocated to justice and balanced.The damage of the risk which is chosen by victim can be borne by insurance,and there is no reason for the law to favor the victim excessively.Risks have two sides,there must be allowable risks,and the damage caused by them is also reasonable to a certain extent,and the liability of the offender can be reduced or even eliminated.But unlike the comparative fault,the behavior of the victim to participate in the risk cannot be regarded as a fault,and the responsibility of the victim cannotbe measured.At the same time,when there is indeed a fault in the objective behavior of the offender,it is impossible to determine that neither party is at fault and adopt the principle of fairness to adjust.Therefore,start from the historical evolution of the risk-free rules,do a comparative study of extraterritorial experience,combined with China's legislative and judicial dilemmas,the legal basis of the risk-free rules is constructed,and the necessity of the risk-free rules is demonstrated.Then,attempt to link the rule of assumption of risk with the Civil Code as a whole,and specifically link it with the Volume of Tort Liability,and explore its way into the Code.