Research On The Constitutive Elements Of Assumption Of Risk Rule From The Perspective Of Civil Code

Assumption of risk as the exemption of tort liability means that the damage suffered by the victim when he voluntarily participates in the risk behavior shall be borne by himself.China’s Tort Liability Law does not include the exemption of assumption of risk,similar cases are determined according to the fair liability,which is controversial in theory.The Tort Liability of the Civil Code added assumption of risk as a reason for exemption,in response to the needs of judicial practice.However,the provisions of this rule are more principled,and the understanding of its constituent elements needs further analysis to ensure correct identification and application.In terms of the application of assumption of risk rules,it mainly includes the definition of cultural and sports activities and the analysis of inherent risks of cultural and sports activities.Cultural and sports activities generally recognized by the society mainly refer to the common literary and artistic activities and sports activities in daily life,not all of them,however,can be included in the assumption of risk rules.For example,some amateur activities without activity rules may also have certain risks,but the lack of activity rules will lead to a difficult problem in the determination of the subjective fault of the offender in judicial practice,which therefore shall not be adjusted by the assumption of risk rules.At the same time,if illegal cultural and sports activities are included in the assumption of risk,the scope of exemption will be improperly expanded,which is not conducive to the establishment of legal authority,and is bound to cause negative social impact.Inherent risk refers to the risk of cultural and sports activities itself,which is obvious,inevitable in nature and inseparable from sports.Although the cultural and sports activities with certain risks exist objectively,the voluntary participation of the victim is an essential element to bear the consequences caused by this.The victim’s voluntary participation is related to his subjective judgment,and the premise is that the victim knows and understands the content of the risk and its possible damage consequences.The victim’s knowledge shall be interpreted as in fact knowing and ought to know.In judicial practice,the identification of the victim’s knowledge shall return to the facts of the case and be loyal to the facts of the case for case identification,pay full attention to the true meaning of the victim’s heart,and abandon the identification standard of statutory elements that completely relies on objective judgment.Voluntary risk-taking is possible only when the victim has a full understanding of the risks.Generally,the judgment of the victim’s voluntariness involves the voluntariness in the explicit and the implied ways.In the case that the victim does not express his willingness to bear the risk,the voluntariness can be determined through the victim’s own participation or intervention.The extent to which the victim voluntarily assumes the risk shall be limited to the damage which he can foresee or has seen.Victims voluntarily participate in cultural and sports activities with certain risks,and the damage results are caused by the behavior of other participants,so it is very important to define the scope of other participants.There is a causal relationship between the damage suffered by the participants of cultural and sports activities and the behavior of other participants,and the damage of the former must be caused by the behavior of other participants.For example,when a player in a football match is injured by a firecracker thrown by a spectator outside the stadium,such damage that does not originate from other participants cannot be applied to the assumption of risk rule.At the same time,the spectator who is injured by the ball kicked by the athletes shall not apply the assumption of risk rule,but shall apply other legal obligation rules.However,"other participants" shall not be defined too narrowly.For example,the referee in a football match shall also be interpreted as belonging to "other participants".