Research On The Rule Of Assumption Of Risk

The rule of assumption of risk originated from extraterritorial legislation.There was no rule of assumption of risk in Chinese law before that.However,with the development of social economy and the change of legal system,it keeps appearing in the studies of scholars.In the original "tort liability act" and "the general civil law",as well as civil code compiling expert proposal written in the rules since the risk-taking,through reviewing many times,finally on May 28,2020,promulgated the law of the People’s Republic of China civil code(hereinafter referred to as the "civil code")article 1176 the provisions of the rules,the establishment of this rule is a great progress in legislation,It can not only fill the legal vacancy,but also unify the standard of judgment in judicial practice,but there are still many imperfections.Since the risk-taking rules without its difference with the victim consent,negligence offset,etc,in the risk-taking situation,with the consent of the victim must be a certain risk,except that there are risks when the victim in the activity,more important is it should be cognitive risk,just know that risk and voluntary,and cannot be identified as the risk-taking.The scope of application of self-willingness to take risks is not strictly limited,although it is limited to "sporting and sports activities with certain risks",but the "certain risks" should be interpreted in a narrow way,which must be inherent risks of the activities and generated from the activities themselves."Recreational and recreational activities" should be interpreted in an expanded way.It should refer to activities related to culture and sports,not necessarily competition activities,and not necessarily only officially recognized activities.Such recreational activities can also be included in the scope.In addition,compared with the judicial adjudication before the enactment of the Civil Code,the application of cases in the fields of traffic accidents,highly dangerous activities and medical treatment should be excluded.Since risk-taking rules applicable subject should also include minors,minors is an important subject of culture,sports activities,but due to a minor physical and intellectual development is not mature,less social experience and cognitive ability is low,the self-protection ability is weak,should bear the responsibility,should according to carry out specific analysis on the meaning of legal representative said.Since risk-taking rules of tort liability,the legal effect should be reduced or remitted because of its main solution is after the damage occurred shall be borne by who damage problem,so need to be on all parties in the damage occurred before or even after the behavior to carry on the comprehensive evaluation,and not because the victim from risk-taking,namely completely exempted from the responsibility of the offender.