A Study On Assumption Of Risk In The Civil Code

Assumption of risk has experienced a process from expansion to contraction in the evolution,but it has not really withdrawn from the stage of history.Article 1176 of the "Civil Code" stipulates that the assumption of risk is a cause of exemption,which not only conforms to the value measurement of distributive justice and liberalism,but also conforms to the requirements of judicial practice.The assumption of risk rule apply to "a certain risk of recreational and sports activities." "Recreational and sports activities" refer to sports in a broad sense."A certain risk" is inherent risk in nature,and the degree is between general risk and high risk.The constituent elements of assumption of risk rule include subjective elements,objective elements and negative elements.Spectators watching sports games and members participating in dutch treatment outdoor activities are participants of recreational and sports activities.The behavior of "other participants" constitutes an inherent risk of the activity and has a causal relationship with the damage of the victim."Be fully aware" needs to be analyzed based on the victim’s personal situation,and "be willing to" mainly examines whether the perpetrator has other options.Judging the subjective consciousness of minors needs to distinguish between persons without civil capacity and persons with limited civil capacity.The criterion of "deliberately or grossly negligent" differs depending on whether the activity the offender participated in is a formal sports competition.The legal effect of the assumption of risk is to exempt the "other participants" of recreational and sports activities from responsibility.Although organizers of recreational and sports activities cannot apply the assumption of risk rule for exemption,their security obligations should be appropriately reduced within the scope of inherent risks.The assumption of risk rule has a narrow scope of application,and negligence will still play an important role in situations where the assumption of risk rule cannot be covered.In order to resolve the contradiction between the assumption of risk rule and the exemption clause,the application of the stated assumption of risk can be clarified in the judicial interpretation.After the "Civil Code" came into effect,the conflict between the assumption of risk and the fair liability principle in the application no longer exists.