Study On Assumption Of Risk In Tort Law

Since the beginning of the 18 th century,assumption of risk has always played an important role in the field of tort law.However,since the middle of the 20 th century,its status has gradually declined,and dissented voices about assumption of risk as a defense could be heard from many scholars.The oppugn is mainly focused on the law application of assumption of risk,and the debate has not yet been settled.The mainstream theory of Britain,which is the birthplace of assumption of risk,has already changed,and transforming the law application of assumption of risk from contributory negligence to comparative negligence.In the jurisprudential circle of German,early precedent and theory tend to adopt the view of the implied exemption,and then change to adopt the viewpoint of the victim's implied consent to the damage,but both of them are legal fiction and lacking in persuasiveness.Therefore,at present,the current theory in German abandon the above-mentioned standpoints,and apply detailed classification system of legal consequences to assumption of risk.In December 2018 the second draft of Tort Liability in Civil Code has just established the rules of assumption of risk.As a imported goods,the necessity,rationality and logic of the rule of assumption of risk are worthy of intensive study.In addition,whether legal phenomenon,assumption of risk,can be reasonably soluted by this rule is also quite doubtful,so it is necessary to conduct research on the law application of assumption of risk.Before analyzing the law application of assumption of risk,we should first identify the nature of assumption of risk,and there are three theoretical views on the nature of it: firstly,to include it in the scope of victim's consent;secondly,to deny its independence and to include it in the rule of comparative negligence or the constitution of tort liability;thirdly,to regard it as a defense of tort liability.Althoughin December 2018 the second draft of Tort Liability in Civil Code adopts the third viewpoint,the second standpoint through analysis is more worthy of approval.In order to prove the validity of this opinion,it is necessary to analyze the actual legal effect of assumption of risk.After researching the extraterritorial theory from the perspective of functionalism,it can be concluded that the actual legal effect of assumption of risk conducting by the victim is that the degree of the defendant's duty of care decreases within the scope of assumption of risk conducting by the victim.On the one hand,if the duty of care is reduced to the extent that the defendant has not breached,it should be determined that the act does not conform to the constitution of tort liability;on the other hand,if the degree of the duty of care is reduced,but the defendant's act still violates it,the act still constitutes tort liability,but if the victim also has negligence,that is,violates the duty of care to protect his own rights and interests,the Article 26 of Tort Liability should be applied.Although regarding assumption of risk as an independent defense has not great theoretical value,in fact,it helps to alleviate the phenomenon of “the outcome of judgments various” in judicial practice.Therefore,it is also of practical significance to explore and analyze this newly established the rule of assumption of risk.Although in theory a solution to the law application of assumption of risk has been put forward,in order to observe the law application of assumption of risk more intuitively,it is necessary to make analysis of categorization to it.In the judicial practice of China,assumption of risk frequently arises in the five types of cases.That is,dangerous ride,participation in antagonistic sports,participation in outdoor adventure activities,unauthorized access to dangerous areas and participation in risky recreational activities.However,judges have not made a thorough analysis of the phenomenon of assumption of risk.Of course,before the promulgation of the Civil Code,the rule of assumption of risk can not be used as an independent basis for the law application in the judgement,so there are contradictions in the law application in various courts.Therefore,on the basis of the two-tier structures theory of the constitution of tort liability and comparative negligence,this paper analyses the above-mentioned cases one by one,so as to clarify the misunderstanding of assumption of risk and determine the applicable areas of the rule of assumption of risk which will be established later.First of all,this thesis identify the connotation and component of assumption of risk,and then further identify the concept of assumption of risk by distinguishing it with other legal concept.Secondly,combining the extraterritorial law to determine the nature of assumption of risk,and through its direct legal effect,i.e.the reduction of the duty of care standard,it demonstrates the law application model of assumption of risk,i.e.the two-tier structures theory of the constitution of tort liability and comparative negligence;thirdly,it retrieves the cases of assumption of risk,summarizes the mainstream judgment viewpoints,and then makes a typological analysis of assumption of risk,trying to verify the rationality of the two-tier structure by comparing with the mainstream view of referees.Finally,it evaluates the newly established assumption of risk rule to determine its scope of application.