On The Application Of Assumption Of Risk In Civil Code

Article 1176 of "Civil Code" for the first time established the assumption of risk rule in the field of recreational or sports activity,however,from the results of the judgment,the application is not ideal,different judgments in the same case from time to time,affecting the credibility of the judiciary.Through the analysis of 539 cases after the promulgation of the code,it is found that the rules mainly have problems in the scope of application,the applicable subjects,and the definition with other rules.In the final analysis,the problem of application in practice is the ambiguity of legal norms,the above-mentioned problems in practice boil down to the standard for "recreational or sports activity with certain risks",the internal relations of the article,the nature of the rules and the requirements of the interpretation existing disputes.To understand the rule correctly,we must grasp the differences between the rule and the consent of victim,contributory negligence and the principle of fairness.Secondly,it is necessary to recognize that the theoretical basis of the risk rule is individualism,the permissible danger and the balance of equity and efficiency,so as to make it clear that the rule has the characteristics of independent defenses and the scope of the subject limited.In addition,combing the models of the applicable scope and the specific form of the assumption of risk rule in the legislation,it can obtain the following enlightenment: limit the scope of application,recognize the organizer as applicable subject,and retain independent defense in the field of recreational or sports activity.Through the analysis above,this paper puts forward improvement suggestions on the issues of the assumption of risk rule.First of all,in terms of applicable scope,recreational or sports activity should be identified as the physical object directly as the target,indirect contact,and indirect contact with other items.The risk refers to the inherent risk in the event.Secondly,as far as the subject is concerned,the organizer should be acknowledged as the subject of the rule and believes that the organizer has the obligation to security,but does not need to be responsible for the inherent risk of recreational or sports activities.For the special situation of the unity of the organizer and the participants,the protection of the participants’ interests should be focused.Finally,as to the nature of the rule,it should be regarded as a defense in certain risk of recreational or sports activity,in addition,the application needs to satisfy the following constitutive requirements: the victim know the risk,the victim volunteered,the victim’s impairment by the conduct of other participants and the actor without intention or gross negligence.