The Study On Assumption Of Risk

China’s Civil Code sets up the system of assumption of risk newly and has filled the blank of the law undoubtedly.Assumption of risk is conducive to encouraging people to participate in risky activity,and has established the mode of responsibility undertaking that has appeared in practice,which is conducive to the unification of judicial judgment and the public’s understanding of this issue.In the process of compilation of China’s Civil Code,the expression of clause changed several times,and finally it was finalized.The applicable scope and subject of the law still need to be further explained.The constitutive requirements need to be explained.Whether the effect of the law is to exempt from the liability of defendant.Whether the scope of application of the law limited in "a certain risk activities" is appropriate.And how to deal with the relationship between assumption of risk and the victim consent,and the relationship between assumption of risk ad negligence offset.The above problems need further exploration and research space in judicial practice.Assumption of risk tends to be faded.Thirdly it is to classification of assumption of risk.The article is mainly divided into three parts:The first part is about the basic theory of assumption of risk.The first section is to analysis of the elements of constitution of the assumption of risk through the definition.The second section is about the history of assumption of risk.In theory express of the assumption of risk is exemption clause.Primary implied assumption of risk will exempt from the liability of defendant.Secondary implied assumption of risk apply to the rule of comparative negligence.The second part is about the proof the independence of assumption of risk.The first section is the difference between assumption of risk and related defense,including the difference between assumption of risk and the consent of the victim,and the difference between assumption of risk and comparative negligence.Assumption of risk cannot be replaced.The second section is about the value of the independence of assumption of risk.Assumption of risk is based on individualism.And the contemporary of assumption of risk is safeguard social and public interests and distribute risk between the two parties.It is reasonable and necessary that the victim assume the liability.And Establishment of assumption of risk is feasible.The third part is about the application of the legal provisions of assumption of risk.We can learn from the American theory of assumption of risk.There are three standards in American law in sports,including inherent risks doctrine,intentional-reckless doctrine and negligence doctrine.Inherent risks doctrine and intentional-reckless doctrine is more useful.The key to the judgment of assumption of risk is inherent risks doctrine.In China,recreational and sports activities with certain risks is equal to generalized sports.The subject limited in co-participants.And assumption of risk can be applied when the victim includes audience,juveniles and trespasser.The victim knows the risk and be willing to participate in the sports.The damage is caused from the inherent risk of the sports.And the defendant is not intentional or gross negligent.The organizers cannot defend because of victim assumption of risk.The organizers enjoy the limited liability.If the organizers are fault,they should take the direct responsibility.