Legal Doctrinal Analysis Of Assumption Of Risk Rule

Before the introduction of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code"),the theoretical basis of the assumption of risk rule was unclear,and the conditions and legal effects of its application were not uniform,so there were significant differences and even confusion in its judicial application,making it difficult to form a stable and uniform legal doctrine.Article 1176 of the Civil Code,based on China’s judicial practice experience,combined with local theoretical research results,absorbed foreign teachings on the assumption of risk and formally introduced the assumption of risk rule.The core element of the assumption of risk rule is voluntariness and risk,with the legal effect of completely exempting that other participant from liability.The principle of autonomy and the theory of inherent risk are the theoretical foundations of the assumption of risk rule,whereby a person of free will is responsible for the consequences of an autonomous act and the legitimate risk taker is not liable for the damage caused by that risk.The organizer is no longer liable for supplementary liability.With regard to risk,article 1176 of the Civil Code limits the risk in the context of the assumption of risk rule to the risks inherent in cultural and sports activities,including natural risks and statutory risks.statutory risks are limited to risks arising from the general negligence of participants in cultural and sports activities.The definition of the constituent elements of the assumption of risk rule should be broader,with victims and perpetrators limited to participants in cultural and sporting activities,and gross negligence should be typed according to the characteristics of cultural and sporting activities and with reference to specific activity rules.In judicial practice,the objective presumption criterion,which equates "voluntary participation in cultural and sporting activities" with "voluntariness",has greatly weakened the legal status of this criterion and should be abandoned in favour of a subjective,case-by-case approach.Only by finding out as much as possible about the victim’s true intentions can the centrality of voluntariness to the rule of assumption of risk be constantly reinforced.The legal doctrine of the rule of assumption of risk can be summarized as follows: a victim with the capacity to recognize risk who,having voluntarily accepted the risks inherent in a cultural or sporting activity,actually takes part in it,may not claim liability from the organizer or other participants when the victim suffers damage as a result of an act of no fault on the part of the organizer or other participants,or as a result of an act of general negligence on the part of other participants.