The Legal Application Of Assumption Of Risk In The Civil Code

Assumption of risk was born in Common law.For the injured voluntarily participating in the activities,the tort liability of the injurer was exempted.Later comparative negligence is used to replace contributory negligence to limit tort liability.Different from contributory negligence resulting in full responsibility or no responsibility,comparative negligence shares the loss between both parties according to the proportion of their negligence,which is obviously more fair.As a result,the validity of assumption of risk adopting the same sharing paradigm as comparative negligence,has been questioned and finally abandoned in the Second Restatement of American Tort Law.However,assumption of risk has shown a trend of recovery and plays an irreplaceable role in tort law in recent years.Before the pass of the Civil Code,China has no law explicitly stipulated assumption of risk.However,assumption of risk has frequently been used to adjudicate cases.There also has been much discussion about assumption of risk in the academic circles,including the scope of application and the constituent elements of the rule.The reason why the offender does not have to bear the tort liability when the victim is willing to take risks,is due to a variety of values,including individualism values and the basic principles of civil law: Good Faith Principle and the fair principle.As for the scope of application of assumption of risk,the main disputes include the scope of application of the subject and the scope of application of the activity.The disputes of the subject are as follows: first,whether the injury caused by voluntary participation in risk-taking activities by persons without or with limited capacity for civil conduct constitutes assumption of risk? From the perspective of the legislative purpose of encouraging schools,kindergartens and other educational institutions to organize sports activities with certain risks and strong antagonism,we should affirm the possibility that people with no or limited capacity for civil conduct are willing to take risks.Second,is it possible to apply the rule when the audience of non-event participants is injured? For the interests of both athletes and spectators,it should be considered that the injury of spectators caused by the inherent risks of sports activities should constitute assumption of risk.The dispute on the scope of application of sports activities lies in the scope of sports activities,the degree of risk of sports activities,and whether the damage caused by natural reasons or improper operation of sports activities constitutes assumption of risk? Is the rule applicable to the injury of low-risk sports activities? This paper holds that the organizer or operator of a non-confrontational sports activity can also apply the rule if it is damaged due to natural reasons or improper operation.Whether the risk is high or low,the victims who voluntarily participate in recreational and sports activities and are injured due to the realization of the inherent risk of the activities may constitute assumption of risk.Finally,in terms of the constitutive requirements,the disputes mainly focus on the requirements of the risk cognition of the victims and the subjective mentality of the perpetrators.Although the "Civil Code" provides for assumption of risk,the above-mentioned controversial issues have not been resolved.Therefore,it is necessary to discuss assumption of risk in order to clarify the above problems.In order to better apply assumption of risk in practice,we should understand the differences between the rule and the victim’s consent,exemption clause,fault offset and other similar legal systems.On the basis of clarifying the scope of application and constitutive requirements of assumption of risk and its role in tort law,this paper further compares it with the relevant legal systems.