Research On The Legal Issues Of Assumption Of Risk

Since the emergence of the assumption of risk rule,countries around the world have experienced similar but different developments.There are different regulations in the scope of application,constituent elements,and legal effects.The self-contained risk rule in my country belongs to a scratch.The development trend,the "Civil Code" has gone through a process of codification for many years,and finally introduced the self-contained risk rule into Article 176 as an independent exemption.However,the self-contained risk rule is still a controversial issue in academia.Some scholars advocate that the self-contained risk rule should be introduced into the "Civil Code",and some scholars have raised questions about whether self-contained risk is independent.And even scholars who believe that the "Civil Code" should be introduced have different views on the constituent elements of the self-contained risk rule.Therefore,further research on the constituent elements of self-contained risk is necessary for the application of the Civil Code in judicial practice.The constituent elements of self-contained risk can be divided into subjective and objective parts,mainly including: risk belongs to the inherent risk unique to sports activities,the victim’s attitude to risk requires that he knows and voluntarily participates in risk activities,and the perpetrator does not have intentional and significant risks.fault.In the self-contained risk theory,inherent risk and duty of care are more important concepts.Inherent risk is different from the risk mentioned in the work and life of ordinary rational people.It is a special risk inherent in cultural and sports activities.On the basis of knowing the inherent risks,the victim voluntarily participates in cultural and sports activities,and the damage suffered by the inherent risk is transformed into reality.After excluding the perpetrator’s intentional and gross negligence,he can use his own risk defense.The more controversial issue in the self-contained risk rule is whether its legal effect should be applied to negligence.Scholars who believe that negligence should not be applied believe that the self-contained risk rule is a complete exemption requirement,while scholars with the opposite view think that it should be based on specific circumstances.According to the faults of both parties,the responsibilities are allocated and the losses are shared.Even though the "Civil Code" now stipulates self-contained risk as a completely independent rule that exempts liability,the suggestion that negligence should be introduced still exists.It is reasonable to introduce negligence offset by self-contained risk.When the victim is not at fault,the self-contained risk complies with the requirements of self-contained risk.Of course,the self-contained risk rule can be used to exempt other participants from responsibilities.But when the victim is at fault,the negligence offset has the meaning of existence.In addition,the introduction of negligence in the self-contained risk rule not only conforms to the logic of civil law theory,but also prevents the occurrence of too rigid judgments.As our civil law enters the era of code,the newer regulations will arouse widespread discussion among the masses.There is still a long way to go for the self-contained risk rule itself.More perfect rules not only conform to the principles of civil law,but also embody justice value.