Research On Assumption Of Risk Rules

Under the background of the new era,the improvement of people’s quality of life is not only reflected in the satisfaction of the material level,but also reflected in the further growth of spiritual and cultural needs,the pursuit of the cultivation of the spiritual world,and the new and interesting cultural and sports activities begin to come into people’s view.However,competitive cultural and sports activities also have potential dangers,and are prone to personal injury accidents.Article 1176 of the Civil Code stipulates the rule of voluntary risk,which has far-reaching significance.Before the promulgation of the Civil Code,there was a lack of uniform judgment standards for personal injury cases caused by competitive sports activities,and there was a phenomenon of abuse of fair responsibility and the principle of negligence offset,which led to confusion in the judgment,and different judgments in the same case occurred from time to time;After the promulgation of the Civil Code,the voluntary risk rule has played an important role in judicial practice,but there are also many disputes in the scope of application,constituent elements and other aspects.Therefore,it is of great significance to summarize the new problems in the process of judicial application of the rule,clarify the judgment criteria for voluntary risk cases,and better realize its normative function;At the same time,the era of "fitness for all" 2.0 is coming,and the improvement of self-risk rules can effectively regulate competitive sports,lead the upsurge of fitness for all,and contribute to the development of China’s sports industry.In addition to the introduction and conclusion,this paper consists of four parts,which are described as follows:The first part is an overview of voluntary risk rules.It first defines the concept and legal positioning of voluntary risk rules,elaborates on the legal characteristics of voluntary risk rules,and deeply analyzes the differences between voluntary risk rules and relevant systems.Secondly,it elaborates on the evolution of self acceptance risk rules,and draws on the mature experience of the United States,Britain,and France in the regulation of self acceptance risk to provide reference suggestions for the current legislative situation in China.The second part is the main content of the voluntary risk rule in the Civil Code.It interprets the main scope of voluntary risk rules from the perspectives of participants and event organizers,discusses the objective elements of voluntary risk rules,accurately grasps the identification of certain risks,and understands the specific scope of cultural and sports activities from the perspectives of professional sports,mass sports,and school sports.Based on legal provisions,in-depth analysis of the subjective elements of the self acceptance risk rule shows that the victim’s knowledge and willingness to participate in cultural and sports activities is the core element of the self acceptance risk rule.The third part is about the current situation and existing problems in the judicial application of the voluntary risk rule in China.It discusses in detail the current situation and existing problems of the judicial application of the voluntary risk rule before and after the promulgation of the Civil Code.Through case empirical investigation,it is found that the main problems are: unclear provisions on the scope of application of the voluntary risk rule,differences in subjective elements,inconsistent understanding of the applicable subject,and confusion in the determination of the responsibility of the event organizer,etc,These issues can have a negative impact on the authority of the judiciary.The fourth part is suggestions for improving the self acceptance risk rule.Based on the social reality and legislative purposes of our country,this article proposes improvement measures that meet the current judicial situation of our country.Firstly,clarify the scope of application of the self acceptance risk rule,and limit the scope of application of the self acceptance risk rule through the improvement of the "certain risk" identification criteria.The author proposes to determine the specific scope of "cultural and sports activities" through affirmative and negative enumeration methods;Secondly,clarify the subjective elements of the voluntary risk rule,accurately grasp the subjective "willingness" of participants and the "intentional or gross negligence" of other participants;Thirdly,clarify the applicable subjects of the self acceptance risk rule.This article believes that minors,spectators,etc.can become the subjects of the self acceptance risk rule,so that the self acceptance risk rule can reasonably solve the liability of the infringement subject;Finally,the responsibility of event organizers and participants is not an exclusive relationship.In the same case,both participants and organizers can be held accountable.