An Empirical Study On The Application Of Voluntary Risk Rules

As an ancient defense in traditional tort law,voluntary risk has declined due to the prevalence of comparative negligence theory,but it can not be denied that it plays an irreplaceable role in some fields.As far as China is concerned,before the adoption of the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),the Tort Liability Law did not stipulate the rules of self-grelicity risk.However,in the judicial practice,it is very common to use the self indulgence risk rule as the basis of judgment,which proves that it is in line with the actual development needs of our country.The current Civil Code’s liability for tort has adopted a provision setting out the voluntary risk rule,but there are still the following problems that need to be urgently addressed:The scope of application of self indulgence risk rule is limited to "literatiary activities with certain risks",but the scope of "literatiary activities" has not been further explained and defined,which leads to the phenomenon of arbitrarily expanding the scope of application of self indulgence risk rule in judicial practice.It is necessary to recognize the validity of the exemption agreement if we are willing to take risks into law.However,there is a conflict between the provisions of article 506 of the contract part of the civil code,and there is no effective connection between the legal norms.The judge’s vague understanding of the definition of self indulgence risk rule,confusion in the application of relevant rules,excessive abuse of the principle of fairness and other issues lead to the phenomenon of unclear reasoning and argumentation in the trial of such cases,Thus causing different judgments in the same case and different judicial chaos of the same judgment,which undermines judicial authority.In addition,there is a lack of law in infringement cases caused by codrinking alcohol,and it remains to be argued whether the self-grected risk rules should be applied.To sum up,it is necessary to clarify the basic concepts and applicable conditions of the relevant rules such as self indulgence risk in theory,and sort out the essential differences between different rules,so as to clarify the applicable boundary of each rule and effectively solve the problem of rule confusion.On this basis,this paper collects 80 typical tort cases about voluntary risk in judicial practice,and divides the judgment rules into three modes for typological analysis.According to the comparison between the case and the judgment,further analyze the basis and trend of the judgment,and then summarize the common problems in the application of the self-glying risk rule in practice.Finally,according to the problem,the specific concept of improving the self-glying risk rules is put forward,hoping to make every effort to make good progress in the field of tort liability.