| The civil code of the People’s Republic of China establishes the assumption of risk rule in the form of independent clauses is a far-reaching creation.When this rule is in decline in foreign judicial practice,the legislator of our country introduces it into the field of cultural and sports activities in a new way,making it a grounds for exemption.This is based on comprehensive consideration of many factors such as perfecting exemption system,promoting the development of sport,and promoting the commercialization of cultural and sports undertakings.After the civil code came into force,we can find that the vitality of the assumption of risk rule is prominent by observing the trial practice of local courts.It can be seen in the cultural and sports activities as well as non-cultural and sports activities,the court will apply it along with other rules like negligence,and have slightly different views on the constituent elements of the rule such as cultural and sports activities and participants.Based on the problem awareness,concluded that there are some problems in the application of this rule.Furthermore,according to the problem propose suggestions.It is hoped that the function of the rule can be fully,effectively and correctly played,so that it can produce good social effects in the application.This paper mainly consists of five chapters:The first chapter: an overview study of the theory of assumption of risk,is divided into two parts: The first section traces the origin of assumption of risk and shows its emergence and development history in foreign countries.It can be seen that the rule was established to solve employment relation disputes,guarantee the progress of industrial revolution,and faced the danger of extinction with the development of comparative negligence theory.The second section introduces the different views on the rule in terms of terminology and concept by the Chinese academic circles,analyzes its legal nature,then distinguishes the difference between the rule and other similar defenses.The second chapter: the interpretation of the assumption of risk rule in our civil code,is divided into three parts: The first section analyzes the reason for assumption of risk rule into the code,and shows its legal function.The second section based on the legal provision,analyzes the constitutive elements of the rule from subjective and objective aspects.The third section discusses the legislative innovation of the rule by analyzing the creative vocabulary of cultural and sports activities,and the institutional arrangement about the rule exclude the organizers of cultural and sports activities from giving priority to defense.In order to provide the reserve of interpretation to analyze the application of the rule accurately.The third chapter: research on the application status of assumption of risk rule,is divided into three parts.The first section is based on the reading of more than 100 judgments,shows the possibility of the parties’ behaviors being considered as assumption of risk by the court in the field of cultural and sports activities,contracts,dangerous places and other non-cultural and sports activities.The second section start from the case,shows that assumption of risk rule is confused with other rules such as fair liability and negligence.The third section explains the courts’ understanding of cultural and sports activities,participants and other constitutive elements when applying the rule.The fourth chapter: Research on the problems existing in the application of the assumption of risk rule.Starting from the present situation,found that the scope of application of the rule has been expanded.Limiting the applicable scope of the rule is reasonable.Justice should not interpret this scope by analogy.In the field of contract,the theory of contract binding force and contract termination should be used to solve the disputes.And in the case of non-cultural and sports activities,the theory of tort liability and the rules of negligence should be used.In view of the unclear application boundary between the assumption of risk rule and other legal rules,there is no cooperation between the rule and the fair liability or negligence,otherwise it will impact the legal attribute of the assumption of risk rule and the play of its efficacy.In addition,elaborates the problems of expanding interpretation of cultural and sports activities,and inconsistent recognition of the subject and their subjective state,so as to put forward targeted solutions.The fifth chapter: The suggestions on resolving the application of the assumption of risk rule.Firstly,grasp the dichotomy between the expression of assumption of risk and the application of the rule.Try to avoid the use of assumption of risk in non-sporting areas.Secondly,adhere to the independent defense model of the assumption of risk rule.Denying that the comprehensive defense mode that the rule can be applied together with other legal rules.Thirdly,the boundary scope of cultural and sports activities should be strictly controlled.Taking into account the intrinsic characteristics of activities and the external purpose of athletes,denying that activities with high risk can be applied to the rule.Finally,optimize the identification process of the applicable subject and its subjective states.It is permitted that indirect participants,such as spectators,and those who assist in the conduct of activities also possible to apply the rule.For the victim,the objective rational person standard is used to judge whether he should accept the risk,combining his age and experience.Denying that people without civil capacity can apply assumption of risk rule,limit whether people with civil capacity can apply the rule needs to be analyzed in specific circumstances.For the perpetrator,to avoid directly equating irregularities with gross negligence,and distinguish minor violations from major violations from the perspective of professional athletes. |
