Legal Application Of The Rule Of Assumption Of Risk

The rule of assumption of risk first arose to develop industry and commerce.At that time,assumption of risk rule was mainly applied to employment relationship.But with the development of social economy,it could not apply to the employment relationship and was applied to tort relationship.Although there is no rule about the rule of risk assumption in China,it is very common for judges to use the rule as the basis of judgment in the trial of relevant cases.But,due to the lack of specific legal provisions,there are different standards in the specific application.This also proves that the introduction of the rule of risk is adapted to the new situation and is the improvement and innovation of the tort liability of the civil code.As a new rule of tort liability in the Civil Code,the application of law should be clarified.This paper divides the application of the rule of risk into four chapters.First of all,in the first chapter,the theoretical outline of the rule of risk is discussed.The first is the history of the rule,followed by the definition of the concept of similar rules,and the final interpretation of the main value of this rule,highlighting the rule of independent theoretical value.The second chapter analyzes the constitutive requirements of risk acquiescence.The first part is subjective elements,including the subjective will of the victim and the perpetrator.The second part is the objective elements of the risk,from the source of risk,risk transformation,causality and public order and good customs four aspects of analysis.Based on this,the basic theoretical framework of the self-accepting risk rule is constructed.The third chapter analyzes the scope of application of the rule in judicial practice,which is divided into two parts.The first part is the application of the discretionary risk rule.The second part is about the cases in which the rule of risk acceptance is not applicable.The fourth chapter is the legal effect of the risk,the final purpose of the tort legal relationship is to share the consequences of damage,so Chapter IV is divided into three parts according to different circumstances to divide the assumption of loss.Where the victim bears all the losses on his own,both parties bear the losses jointly,and other participants shall bear liability when they cause expanded damage.In order to protect the legitimate rights and interests of participants who participate in activities with certain risks.