Legal Interpretation Ofassumption Of Risk Rule

As a defense cause in tort law,assumption of risk rule originated from the Roman Law proverb that "Volenti Non Fit Injurias".Assumption of risk rule has gone through a process of application from prosperity to decline in comparative law,but it is undeniable that assumption of risk rule still has its applicable value in some special fields such as sports.Whether to incorporate assumption of risk rule into tort law system is quite controversial in theoretical and judicial practice circles.As early as when the Tort Liability Law was enacted,some scholars suggested that assumption of risk rule should be written into the Tort Liability Law,but at that time legislators believed that assumption of risk rule belonged to the scope of legal transplantation.The research on assumption of risk rule was not thorough enough.If legislation was rushed,it may be unacceptable.Although there were no explicit provisions in law,there had been a large number of cases involving assumption of risk in judicial practice,especially in the field of cultural and sports activities.Since our country is a statutory law country,judges must make judgments based on the current legal provisions.Therefore,in cases involving assumption of risk,the application of assumption of risk can only be used as the reasoning part of the judge,not as the basis for judgment.Judges have different understandings of assumption of risk,therefore,different judgments often occur in the similar cases.In order to be able to unify the judgment and reduce disputes,when the Civil Code was formulated,assumption of risk rule was re-discussed.At this time,the research on assumption of risk rule in academic circles was constantly deepening and mature.Until December 2018,assumption of risk rule was clearly proposed in the second draft of the Civil Code’s Tort Liability for the first time,and then revised and improved in the third draft of the Civil Code’s Tort Liability,and finally assumption of risk rule is determined in Article1176 of the Civil Code.The promulgation of assumption of risk rule was bound to be of great significance to unify judgments.At the same time,because of assumption of risk rule will exempt non-intentional or grossly negligent actors,it will help protect people’s freedom of behavior,improve people’s awareness of risk prevention,and promote the development of cultural and sports activities.Although the establishment of assumption of risk rule is a major improvement,there are still a lot of questions to discuss about the specific interpretation of assumption of risk rule.Regarding the legal composition of assumption of risk rule,whether assumption of risk rule is an exemption cause or a reduction cause;what are the differences between assumption of risk rule and consent of victim,deliberate of victim and contributory negligence rules.What are the constituent elements of assumption of risk rule;what is the specific scope of application of assumption of risk rule;how the responsibility of the organizer in assumption of risk rule should be borne,these issues should be clarified.Therefore,in response to the above problems,the article is divided into four parts to give a specific interpretation of assumption of risk rule.In the first part,the article introduces the judicial application current status and problems of assumption of risk rule.First of all,the article explains the specific meaning of assumption of risk rule.At the same time,by examining the civil law and common law countries’ regulations on assumption of risk rule,it is concluded that assumption of risk rule have changed from prosperity to decline in application,but it is still existence value.Secondly,the article sorts out the historical process and reasons of assumption of risk rule written into the Civil Code;and analyzes the application of assumption of risk rule in judicial practice before the Civil Code is issued.Finally,through the analysis of the status of legislation and judicial application,it is concluded that there are still problems in understanding and application of assumption of risk rule,so as to expand the following discussion.In the second part,the article analyzes the legal composition of assumption of risk rule.On the one hand,it is clear that assumption of risk rule is an exemption cause,not a reduction cause.By comparing assumption of risk rule with similar rules such as consent of victim,deliberate of victim and contributory negligence rules,it is concluded that there are still many differences between assumption of risk rule and other rules and can’t be confused.On the other hand,the article analyzes the constitutive requirements of assumption of risk rule,including seven constituent elements,such as the existence of certain risk,the victim’s knowledge of the risk,the victim voluntarily taking the risk,the perpetrator should have non-intention or gross negligence,and the victim is not based on legal or moral obligations,the actual occurrence of damages,can’t be violate the law and social public order and good customs.The article explains these elements in detail in order to provide a reference for the judicial application of assumption of risk rule.In the third part,the article explains the scope of application of assumption of risk rule.The scope of application of assumption of risk rule should be expanded interpretation,and should not be limited to “certain risk cultural and sports activities”.In combination with judicial practice,it should also include adventurous entertainment activities and outdoor self-help adventure activities.But at the same time,must also be careful not to explain too broadly,and should exclude good-will rides,training and other activities,otherwise it will lead to the abuse of assumption of risk rule.In the fourth part,the article clears the responsibility of the organizer in assumption of risk rule.The significance of the addition of the organizer’s liability article is to prevent the organizer from evading responsibility,so that the victim’s damage will not be compensated.When the third party’s infringement and the organizer’s failure to fulfill the security guarantee obligation exist at the same time,the organizer should bear supplementary responsibility and have the right to recover from the third party.School and other educational institutions,as special subjects that carry out cultural and sports activities,should perform their education and management responsibilities for underage students,and parents should also perform their own duty of care for their children.Finally,through the insurance system,the liability for compensation after the damage is transferred to the insurance company,so as to better protect the interests of the victims and reduce the burden on the event organizers.