Legal Application And Optical Methods Of Civil Assumption Of Risk System

With the official promulgation of the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),the " assumption of risk system" has effectively filled the gap in the tort law of China.However,compared with hundreds of years of theoretical and practical development in foreign countries,China’s "assumption of risk " was mentioned in the beginning of the century and was expressly stipulated in the Civil Code after only about 20 years of ignorant exploration,so the system is relatively immature.So,there is more room for development.Under the background of the current regulations,both academic and judicial practice circles have questioned the assumption of risk system of civil Code.China’s "assumption of risk system" has very demanding constituent requirements,such as the scope is only limited to "cultural and sports activities" and the source of damage must be "other participants".However,in the principle of liability,it boldly takes the way of "completely depriving the victim of the right to request the infringer to assume responsibility".If you extend the perspective,the assumption of risk clause is also in the awkward situation of being a "special provision" but in a "general provision section".The academic circles think that the constitution requirements of the current regulations are too general and the imputation principle is remained to be discussed.In the process of adjudication,the judicial practice circle finds that there is a possibility of conflict between the actual requirement of adjudication and the current system.In order to avoid disputes,the people’s courts are forced to use less or not use the assumption of risk clauses of civil Code,which makes the system become a dead letter.For the perfection of the " assumption of risk system" in China’s Civil Code,we should solve the disputes effectively by combining the theoretical viewpoints and judicial practice experience of all parties without deviating from the system design purpose and legislative spirit.Specifically,it is necessary to optimize the constitutive elements of the system,such as reconstructing the scope and clarifying the concept.At the same time,it is necessary to make the imputation principle,especially the identification of the responsibility of the organizer,clearer.At the same time,we should focus on the real situation of the society and judicial precedent to sum up the best way to show the advantages of the system.