Study On Assumption Of Risk In Civil Law

Assumption of risk refers to the fact that the perpetrator knows that a certain activity has certain risks but is still willing to engage in it,and cannot claim damages after the damage has occurred.It is a defense in the field of tort law.In the context of the compilation of the "Civil Code",since the entry of the rule,the draft has been changed three times,finally established in the "Civil Code",ending the era of chaotic application of assumption of risk due to lack of relevant clear regulations,and opening a new chapter in the "Civil Code Era".The Assumption of risk has a long history.It originated from the ancient Roman proverb that "voluntary behavior does not constitute infringement".It was formed during the industrial revolution and applied to the employment field in Britain and the United States.However,with the development of the times,it was gradually declining and was eventually replaced by the comparative negligence system.Tracing back to its theoretical classification,the common law system and the civil law system are different.The classic classification is based on the common law system,which means that assumption of risk is divided into two types: explicit and implicit.The latter can also be based on the duty of care that the infringer should bear.The degree is divided into primary and secondary implied assumption of risk;assumption of risk in the civil law system is not an independent defense but is included in the negligence.Before discussing the construction of the application of the assumption of risk in the Civil Code,this article uses the duty of care as the starting point to analyze the reduction in the duty of care of the infringer under the assumption of risk,and distributes based on whether the parties violate their respective obligations.Responsibility,and derived from the structure of the dual class of assumption of risk.In addition,this article compares with related similar systems such as the victim’s consent,the victim’s deliberate and the negligence system to clarify the application and differences of each system.In the "Era of the Civil Code",there are many cases of using assumption of risk in judicial practice.This article collects and summarizes four categories of sports competitions,"good intentions together",self-service outdoor adventures,and adventure entertainment activities through case search.It can be found that the lack of the law clearly stipulates that the actual judgment is not uniform,and whether the parties involved in the case constitute assumption of risk and the distribution of ultimate responsibility are the focus of the case judgment.Returning to the construction of the "Civil Code" assumption of risk,this article refines the composition of the self-adventure rules into four elements: objective existence of risks,knowledge of victims,voluntary acceptance by victims,and actualization of risks."Cultural and sports" activities should limit assumption of risk to sports competitions,adventurous entertainment activities,and self-help outdoor adventure activities;of course,according to relevant laws and regulations,the responsibility and exemption of event organizers and operators should be correctly screened;applicable in the norms the path is distinguished from the exemption contract,the high-risk liability,and the fair liability.The exemption clause is a manifestation of the assumption of risk,but the validity of the contract and the degree of responsibility allocation still need to be examined.The high-risk liability belongs to the assumption of risk but the same reason exists.The factual constitution of the law can also assign responsibilities through the legal effects of the second class.The final fair responsibility is to get rid of the mentality of "the weaker is the bigger" in judicial practice.This article is composed of three parts,the main body mainly includes four chapters.The first chapter is an overview of the theory of assumption of risk,exploring its development process and reasons,as well as the relevant regulations in the Common Law System and the Civil Law System.The second chapter starts with the duty of care,analyzes the legal application model of s assumption of risk,and constructs a dual structure of its legal effect.The element of liability for infringement is blocked as the first tier,and the negligence offset is the second tier.At the same time,it compares the difference with the victim’s consent,the victim’s intention,and the negligence system.The third chapter introduces the typified cases that mainly use assumption of risk in judicial practice in our country,namely,sports,self-guided tours,traffic accidents,and adventurous entertainment activities.The fourth chapter is based on the evaluation and analysis of Article 1176 in the Civil Code and related regulations,exploring the path of its application of norms,and on this basis,it is proposed that the dual system applies the factual composition of“assumption of risk”.