Research On The Assumption Of Risk

Assumption of risk is stipulated in Article 1176 of the "Civil Code Tort Liability".This is the first time that our country’s legislation clearly stipulates the assumption of risk.Our country’s assumption of risk rule means that if the victim knows that cultural and sports activities have certain risks,he still voluntarily participates in the cultural and sports activities,and suffers damage due to the actions of other participants,the victim shall bear the consequences of the risks on his own,and shall not justify the damage caused by the injury.If other participants have no fault or gross negligence,they shall not be liable for tort damages.This article believes that there are five elements of the assumption of risk rule: one is subjective knowledge of risk;the other is that the victim voluntarily participates in risky cultural and sports activities;the third is that the victim has suffered substantial damage;the fourth is that there is a causal relationship between the victim’s risky behaviors and damage consequences;fifth,other participants have no intention or gross negligence in the damage consequences.The theoretical sources of the assumption of risk rule are the principle of risk distribution autonomy of will.This is the same as the theoretical basis of negligence and victim consent,but there are also some differences.They mainly show differences in the field of application,legal effect,and subjective will.More importantly,the assumption of risk rule is the value of its existence.Firstly,the assumption of risk rule can effectively solve the problems that arise in social practice,and it has a certain degree of independence,which meets the requirements of the development of a modern risk society;secondly,the assumption of risk rule contains the value of social fairness and justice.It is reasonable and necessary to improve the content of tort liability law from the perspective of protecting the interests of infringers and meet the actual needs of judicial practice.The assumption of risk was transplanted from foreign laws in our country.Although there is no expression of assumption of risk in the current effective legal norms of common law system and civil law system,its spirit still exists.What is more undeniable is that under the social and historical conditions of the capitalist industrial revolution,the assumption of risk rule played a role in adjusting social fairness and justice.Assumption of risk rule of the common law system emerged during the industrial revolution and was applicable to the field of employment relations.Later,the rule was abolished,but its spirit still exists.The United Kingdom has established a comparative negligence theory of liability distribution model.In the "Tort Law(Third)Restatement",the United States replaced the "assumption of risk rule" with "agreed liability limitation rules" in the "Tort Law(Third)Restatement".Although there is no legal expression of "assumption of risk" in the laws of the civil law system,assumption of risk rules apply.The general theory in German law is to incorporate the assumption of risk rule into the negligent rule.Before the promulgation of our country’s "Civil Code",the law did not clearly stipulate the assumption of risk rule.Regarding the application of assumption of risk rule,the scope of application is relatively wide and the judicial judgment model is inconsistent.There are two main attitudes in our country’s legal practice: accepting the assumption of risk rule as an exemption reason;denying the assumption of risk rule as an exemption reason,and combining the assumption of risk rule with the principle of negligence and fair liability.In response to the problems in our country’s judicial practice,the following six suggestions are made regarding the application of the assumption of risk rule after the “Civil Code” comes into force: first,clarify the scope of “cultural and sports activities with certain risks”;second,the damage is caused by the actions of other participants;third,the other participants have no intention or gross negligence;fourth,the organizer of the event should fulfill the obligation to ensure safety;fifth,the legal consequences should be borne by the victim;sixth,the coordination should be at risk application of rules and other systems.