On The Application Conditions Of Assumption Of Risk Rule In Article 1176 Of The Civil Code

Assumption of risk,also known as self willing risk,willing risk,etc.,refers to that the injured party voluntarily takes risk-taking behavior when he knows or should know that he is facing a certain risk,so as to bear the damage caused by the risk.As a widely accepted tort exemption in comparative law,it shows the spirit of individualism and independent will.In today’s society,there are many referees involving the causes of self willing adventure cases in judicial practice,especially in the fields of sports antagonistic sports,playground activities,outdoor exploration and so on.Before the implementation of the civil code,because there was no special provision on voluntary risk in China’s tort liability law,there were great differences in the applicable caliber of voluntary risk in judicial practice.When judging that the victim is willing to take risks,judges often confuse it with the consent of the victim,fault and no fault of the perpetrator.Reflected in the application of law,there will be judges taking self willing risk as reasoning,but the judgment results often choose to apply the rule of contributory negligence or the principle of fair liability to adjust the phenomenon of self willing risk,so as to reduce or exempt the responsibility of the perpetrator.After the promulgation of the civil code,article 1176 clearly puts forward the voluntary risk-taking rule of recreational and sports activities for the first time,which is applied as a legal exemption.Although article 1176 of the civil code has established the legal status of the self willing risk rule as an exemption clause,we can not get a direct answer from the law on how to define the contents of “certain risk”,“cultural and sports activities”,“participation” and “intentional or gross negligence”.At present,the study of the voluntary risk-taking system in article 1176 of the civil code is conducive to solving the problem of confusion in the liability of infringement cases of cultural and sports activities in real life.Because of the same dispute type and different judgment results,it is not only easy to cause social disputes,but also easy to blur the responsibility boundary between social participants in cultural and sports activities;It is not conducive to accurately safeguard the rights and interests of all parties,nor to regulate and adjust various rights and obligations existing in recreational and sports activities.Based on this,this paper attempts to analyze and explore its establishment from the perspective of the three applicable elements of the voluntary risk-taking rule of recreational and sports activities in article 1176 of the civil code.Participate in recreational and sports activities with certain risks.Cultural and recreational activities are divided into cultural and recreational activities and sports activities.According to the characteristics of injuries caused by recreational and sports activities different from ordinary personal injuries and considering the actual situation of the development of mass cultural and sports undertakings in China,the“recreational and sports activities” here are limited to various cultural,entertainment and sports activities with “certain inherent risks”.The scope of application of the voluntary risk rule stipulated in the civil code is much narrower than that in the traditional civil law.The victim knowingly and voluntarily participated.As subjective and subjective elements,the standard that the victim knows or should know the risk should adopt the cognitive standard of general rational person.The practical application of the voluntary risk-taking rule does not need to be premised on the victim’s very clear and specific cognition of the possible dangers of recreational and sports activities.As long as their cognitive level reaches the level of normal participants in an activity and meets the general expectations of the public for participants in such recreational and sports activities.The victim’s voluntary participation should be based on the victim’s physical and mental development and the risk level of sports itself.Reflected in judicial practice,that is,the judge should not be too rigid in the fixed age division standard,but should study and judge in combination with the situation of the parties in the judicial case and the types of activities involved in the case.Other participants have no intention or gross negligence.This is the restriction on the content of self willing risk from the fault level of the perpetrator.Self willing risk itself should also follow the general imputation principle of tort liability,that is,the principle of fault liability,that is,in the absence of fault,the perpetrator does not bear tort liability.In cultural,entertainment and sports activities,especially in sports activities,the judgment of the perpetrator’s fault is inextricably linked with whether his behavior is foul.We can judge the level of the actor’s internal duty of care by combining the activity rules,the participants’ professional level and other external factors,and then judge whether the behavior is gross negligence or intention.