On The Interpretation Of Assumption Of Risks Rules In Civil Code

With the improvement of people’s awareness of keeping fit,sports injury cases are also increasing.The passing of the Civil Code on May 28 th,2020 marks that the assumption of risks rules has officially entered our life.At the same time,theoretical circles have also conducted in-depth research on it,and the courts have also made bold explorations in the application of relevant cases.But there are still some problems.This paper only focuses on the concept,controversial focus,applicable scope,applicable elements and legal effects of the assumption of risks rules.On the basis of drawing lessons from foreign experience and the accumulation of judicial practice in China,according to China’s national conditions,from the perspective of hermeneutics,this paper studies the legal application of the assumption of risks rules in the Civil Code.To respond to the problems encountered in judicial practice.Besides the introduction,the content of this paper is mainly divided into five parts.In the first part,by combing the concept of the assumption of risks rules and institutional changes,the relationship and difference between assumption of risks rules and the victim’s consent,victim’s intention and negligence offset rule are analyzed.At the same time,it introduces the theoretical basis contained in the rule and expounds the theoretical basis contained in the rule,so as to have a general understanding of the context of the assumption of risks rules and lay the foundation for the later discussion.The second part summarizes the key issues of assumption of risks rules in judicial application.As a new system,both before and after it entered the law,it has caused considerable controversy in judicial practice and academic circles,which mainly includes what risks belong to the "risks" in the rule,whether amateur sports and professional sports belong to the "cultural and sports activities" in the rule,whether minors and spectators are injured in sports competitions,and the legal effect of the rule.In practice,the differences on the above issues lead to the phenomenon of different judgments in similar cases,which affects the stability of the law.The third part discusses the applicable scope of the assumption of risks rules.As for the identification of "risk",it only refers to the inherent risks of cultural and sports activities,but not the external risks.The identification of risks should be based on subjective standards and objective standards.The scope of "sports activities" generally includes professional sports,amateur sports and school sports;As for the applicable subjects,the risk rules should be applied to minors in professional sports,while minors who participate in mass sports should consider their familiarity to comprehensively measure.For the damage suffered by spectators in sports events,the assumption of risks rules can be extended or analogously applied to "other participants",and the rules can be applied to "spectators" for "crossing the border" third parties.The fourth part analyzes the applicable conditions and identification of the assumption of risks rules.There are mainly two ways to explain "knowing" : express and implied.The former only means knowing in fact,while the latter introduces objective criteria for comprehensive consideration.For the identification of "voluntary acceptance",the factors considered should be comprehensively judged from the participants’ freedom of will.The identification of other participants’ behavior should be strictly limited to the range of risks in sports activities,and there is a relationship between this behavior and the victim’s damage.For the determination of intentional or gross negligence,from the point of view of consistency between subjective and objective,the application of the assumption of risks rules can be ruled out.The fifth part mainly narrates the legal effect of the assumption of risks rules.Mainly divided into two situations,one is that the actor is exempt from liability.That is,it should be completely exempted from liability when it meets the constituent elements of the assumption of risks rules;The second is the situation of reducing the responsibility of the actor.That is,when the actor has intentional or gross negligence,the negligence offset rule applies.In view of the cognizance of the organizer’s responsibility,it is clear that the scope of the security obligation is "reasonable",and the scope of the obligation is recognized in stages.For the responsibility sharing,under the common fault of the victim and the organizer,the responsibility of the activist should be reduced,and under the common fault of the actor and the activist,supplementary responsibility or direct responsibility should be applied according to the degree of fault.