Research On The Application Of Victim’s Assumption Of Risk Rule

Article 1176 of the civil code of the people’s Republic of China establishes the exemption clause of self willing risk for the first time.After the formal implementation of the civil code,the cases judged by the court applying the self willing risk rule mainly involve six fields:recreational and sports activities,contract disputes,traffic accidents,damage caused by labor services,motor vehicle driving and unauthorized entry into dangerous areas.Since there is no detailed and standardized applicable standard for this rule,there are often problems in practice,such as expanding the scope and subject of application of this rule,the implementation subject of damage behavior does not comply with the legal provisions,and the mixed application of self willing risk rule,fairness principle and fault offset rule.Therefore,this paper focuses on the application of the victim’s voluntary risk rule.Voluntary risk refers to that the participants take the initiative to participate in the recreational and sports activities knowing that the recreational and sports activities they participate in have certain risks,and suffer from the unintentional or gross negligence of other participants in the recreational and sports activities,and the victim shall bear the consequences of such injury.Voluntary risk is different from the victim’s consent in the applicable types of activities,whether the applicable activity risk is determined,the psychological attitude when the damage occurs,and the liability for damage;There are also differences in whether the victim is at fault,the victim’s awareness of the risk,whether it is based on the active invocation of the parties,and the legal effect.In terms of the constituent elements of voluntary risk,the identification of "voluntary" should be judged from subjective and objective aspects;"Recreational and sports activities" should not be expanded,and the scope of application of the self willing risk rule can only be limited to "recreational and sports activities with certain risks";The identification of "risk" should be judged from whether it belongs to the inherent risk of the activity,whether the risk is uncertain,whether it can not be avoided by reasonable means,and whether it causes personal damage to the participants;Participants’ cognition of "risk" should be judged from four aspects: whether the recreational and sports activities are well known to the public,participants’ behavioral ability,occupation and whether to inform the risk of activities in advance;Other participants in the event should include spectators and other personnel who are not directly involved in the event;The occurrence of damage must be caused by other participants,and the damage caused by the victim’s own fault does not meet this requirement;Whether the damage caused by other participants belongs to general negligence shall be determined by the standard of objective rational person.In terms of the legal effect of voluntary risk,other participants will not be liable for damage caused by unintentional or gross negligence.If other participants have intentional or gross negligence in the occurrence of damage,if the participants are not at fault,the liability shall be determined according to the constituent elements of general tort liability;If the participants are at fault,they shall offset the fault and share the responsibility.