Research On The Application Of My Country’s Assumption Of Risk Rule

The self-willing risk rule is a tort defense originating from Anglo-American law in the 18 th century,and has always been in an important position in the field of tort law.Article 1176 of the "Civil Code of the People’s Republic of China"（hereinafter referred to as the "Civil Code"）,which came into effect on January 1,2021,stipulates in detail the self-willing risk rule.This is the first time that the self-willing risk rule has been adopted in my country.The form of legislation is clearly defined.The inclusion of the self-willing risk rule is in line with the actual development needs of the rule of law in my country,and has very important practical significance.On the one hand,it makes up for the absence of relevant laws in our country for a long time and unifies the application of the law;on the other hand,it makes the application of the responsibility assumption rules more fair and equitable,and at the same time improves the judicial efficiency of risk disputes in social life.The Civil Code will take effect from January 1,2021.However,due to the variability and complexity of actual cases and the lag in legislation,as well as the lack of clear and specific explanations for the application of the provisions of the self-willing risk rules,resulting in There are still some problems and deficiencies in judicial practice,which are mainly reflected in the following aspects: the scope of application of the self-willing risk rule is stipulated as "cultural and sports activities with certain risks",but there is no specific application of "cultural and sports activities".The clear interpretation and the lack of accurate definition of its scope have led to some obvious problems in judicial practice,that is,judges may arbitrarily expand the scope of application of the willingness-to-risk rule due to excessive discretion.or constriction.The "Civil Code" includes the self-willing risk rule,so it is very necessary to recognize the validity of the exemption agreement in the self-willing risk rule.The content stipulated in Article 506 of the Contract Volume of the Civil Code It is related to the validity of the exemption agreement,but the content stipulated here will cause a legal conflict between the two,and the resulting problem is that the legal norms cannot be effectively connected with the legal norms.There are also problems encountered by judges in judicial practice,such as it is difficult to clearly understand the meaning of the voluntary risk rule,the relevant rules and the voluntary risk rule are often confused and applied in the trial of cases,and the principle of fairness is too abused.The existence of this makes judges often fail to present the arguments accurately and clearly when hearing cases concerning the application of the self-willing risk rule,resulting in different judgments for the same case and different reasons for the judicial chaos,which damages the judicial authority.In view of the problems existing in judicial practice in China,through the comparison of the application of voluntary risk rules in foreign countries,on the basis of drawing lessons from the mature application experience of voluntary risk rules in foreign countries,and then according to Chinese specific national conditions and the application of judicial practice,The following countermeasures are proposed for the application of this rule: First,by strictly distinguishing between the voluntary risk rule and the negligence rule,clarifying the applicable boundary of the rule,and establishing the authoritative provisions and unified understanding of the voluntary risk rule,so as to effectively solve the application confusion.Second,further explain and define the scope of "cultural and sports activities",and at the same time expand the explanation of "event participants";thirdly,the validity of the exemption agreement in the risk of self-willingness must be clearly stated,because its exemption effect is obvious,so It is necessary to limit the scope of the invalidity of the exemption clause in Article 506 of the Contract Volume of the Civil Code;finally,in order to better help solve the judicial practice problems in our country,it is determined that the constituent elements of the self-willing risk rule include the victim’s participation in certain dangerous situations.Recreational and sports activities and the victim’s participation is completely voluntary,and it is necessary to exclude the damage caused to the victim due to the subjective intention or gross negligence of other participants.