Research On The Application Of "Assumption Of Risk"

The "Civil Code" be implemented since January 1,2021.It is China’s first law named after the Code and occupies an important position in my country’s legal system.It was established for the first time in Article 1176-the "Assumption of Risk" rule.On the one hand,it has the function of protecting the legitimate rights and interests of participants in cultural and sports activities.On the other hand,it is also conducive to ensuring that people participate more freely in cultural and sports activities.Further reduce restrictions on the legitimate behavior of people to participate in cultural and sports activities.Through the balanced protection of the rights and interests of the potential victim among the participants of cultural and sports activities,reasonable arrangements are made for the responsibilities and burdens of the victims of cultural and sports activities willing to accept the risk,which demonstrates that the "Civil Code" protects people’s freedom of social life and participation in cultural and sports activities.The endorsement of the activity.Before the implementation of the "Civil Code",judges in practical cases often adopted the "principle of fairness" when faced with the risk of victims participating in cultural and sports activities,and let the participants bear 50% of the responsibility.The participants have assumed heavy responsibility without intentional or gross negligence,which obviously does not meet the value pursuit of fair responsibility itself.The case of " Liu v.Fan " body rights dispute case cited in this article happened before and after the official promulgation of the Civil Code.The different judgments of the two-instance courts on the same fact can help us understand the connotation and extension of the self-willing risk rule.The theoretical and practical research in the field of extraterritorial self-willing risk has gone through a century of development,and its theoretical and practical experience can also be used to help us better understand and apply the self-willing risk principle.The first chapter summarizes the controversial focus of the case by sorting out the facts of the case.The first and second points mainly focus on the two constituent elements of the voluntary risk principle,and leads to the second and third points to discuss the objective risk and voluntary elements of the voluntary risk in combination with the facts of the case;The third point mainly discusses the controversial focus of legal facts that caused the appeal of this case,and leads to the discrimination of legal concepts such as "victim consent" and "negligence offset" in Chapter IV,which helps us clarify the boundary of the principle of voluntary risk in the civil law system and facilitate our correct understanding and application of the principle of voluntary risk,Only in this way can this principle be correctly applied in judicial practice.The scope of application of this theory outside the territory is obviously wider than that of my country.Although the scope of application of the principle of willingness to risk introduced this time is limited to cultural and sports activities,it is undeniable that the principle of willingness to risk has entered the "Civil Code" system,it will also be worthy of attention and expectation that If it can achieve good legal and social effects then its scope of application may be further expanded.