Research On The Legal Application Of The Rule Of Assumption Of Risk In The Civil Code

Before the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code)formally established the rule of assumption of risk,there were already discussions and applications of assumption of risk in the theoretical circles in China.The theoretical circles had different views on the necessity of its introduction and the independence of its application,and its application in the judicial circles was also chaotic with different results of adjudication.In the context of a sports power,the introduction of the rule of assumption of risk in the Civil Code is of great theoretical and practical significance,as it "unties" cultural and sporting activities from a legal perspective and responds to the urgent calls in judicial practice.However,it should be noted that there are still many disputes in the specific application of this rule.Due to the high generality of the rules,it is necessary to further identify their scope of application and constituent requirements;Since there are some disputes about whether it should be applied independently in the theoretical circle,it is necessary to further clarify it by distinguishing it from the similar rules;There are also some vague points about the responsibilities of the perpetrators for the expansion of the damage and the responsibilities of the event organizers,which need to be clarified.The scope of application of the rule of assumption of risk is divided into subject scope and activity scope.Subject scope: first,the victims not only include the participants of the activity,but also "other contacts" of the activity should apply the rule of assumption of risk by analogy when they meet the specific conditions;Second,the perpetrators should only include participants in activities other than victims.Scope of activities: first," recreational and sports activities " are subdivided into cultural and recreational activities and sports activities;Second,the commonness of " recreational and sports activities " is "risk" and "regularity".The constitutive requirements of the rule of assumption of risk are divided into positive requisites and negative requisites.Positive requisites: first of all,the victims know or should know the existence of risk,and the identification of what should be known should be combined with objective factors such as their age,mental state and experience;Secondly,if the victims voluntarily participate in or contact activities on the premise of knowing the risk,attention should be paid to determining the effectiveness of "voluntary" of persons without or with limited civil capacity in combination with objective factors;Finally,the victims are injured due to the inherent risk of the activity.Negative requisites: first,eliminate the intentional or gross negligence of the perpetrators,and pay attention to the distinction between intentional foul in sports rules and malicious injury in tort law;Second,activities shall not violate the law or public order and good customs.As for the applicable relationship between the rule of assumption of risk and the similar rules,it makes a clear distinction with the victim consent,fair liability and contributory negligence in terms of the nature,composition and legal basis of the rules,and affirms the independence of the former in the field of recreational and sports activities in China on the premise of conforming to the composition of the rules.As for the responsibilities of the perpetrators for the expansion of the damage,there is a certain causal relationship between the prior act of the perpetrators and the expansion of the damage under the natural state of the victims,and the expansion of the damage leads to the obligation of rescue;In view of the complex situation in practice and the lack of relevant laws and regulations,it is necessary to identify in detail the conditions for the emergence and effective performance of the obligation to rescue the perpetrators.As for the responsibility identification of the event organizers,although the event organizers can be exempted from responsibility if they have fulfilled their safety guarantee obligations or their education and management responsibilities,the limit of the obligations and responsibilities has not been clearly defined.In practice,there is still the suspicion of "revealing all the details" of the responsibility.Therefore,it is necessary to establish a "reasonable limit" responsibility bearing standard.