Study On The The Judicial Application Of The Assumption Of Risk Rule

Article 1176 of the Civil Code stipulates the assumption of risk rule.The purpose of the assumption of risk legislation is to protect the freedom of action of the tortfeasor,balance the protection of the freedom of the actor with the protection of the legitimate rights and interests of the victim,and implement the concept of self-responsibility.The assumption of risk is an independent defence,and it is a cause of unlawful obstruction,which is a special circumstance of the victim’s consent.The constituent elements of assumption of risk include “voluntary participation”,“cultural and sports activities with certain risks”,“damage caused by the acts of other participants”,and “except for other participants who intentionally or grossly negligently caused the damage”.Although the assumption of risk rule does not become a written law in China until the promulgation of the Civil Code,its application in judicial practice has long existed,and there are differences in the judgments of the courts.After the implementation of the Civil Code,through the combing of judicial cases after the entry into force of Article1176,it is found that differences in the application of law in assumption of risk cases still exist,and are not completely resolved because of the entry into force of Article1176,and there are four judicial application problems: unclear distinction between the application relationship between assumption of risk and rules such as negligence offset,a tendency to expand the scope of application of assumption of risk,the perception of confrontation in cultural and sports activities is not uniform,and differences in the criteria for determining the risk of knowledge of the victim.As for the unclear distinction between the application relationship between assumption of risk and rules such as negligence offset,it is necessary to deeply understand the law and grasp its application system.As far as the relationship between assumption of risk and general tort liability,the exemption of the assumption of risk rule from the ordinary negligence of the actor can be said to be in a sense a reinforcement of the function of article 1165,paragraph 1,to protect the freedom of the actor.If the conduct of the parties is exempt from liability due to assumption of risk or by reason of Article 1165,paragraph 1,the parties may choose to apply.As far as the relationship between assumption of risk and equitable liability,the proliferation of equitable liability has been curbed by the amendment of article 1186,and its application must be clearly stipulated by law.The equitable duty should no longer be applied in cases of assumption of risk,nor can it be applied in conjunction with the assumption of risk rule.As far as the application relationship between the assumption of risk rule and the negligence offset rule,the two are not the relationship between special law and general law,but a logical judgment of succession,the assumption of risk rule as the cause of illegality obstruction,affects whether the liability is established at the level of tort liability establishment,and the premise of the application of the negligence offset rule is the establishment of tort liability,and the ultimate liability of the tortfeasor is determined at the level of the scope of tort liability.Regarding the tendency to expand the scope of application of assumption of risk,the scope of “cultural and sports activities with certain risks” in Article 1176 should be respected,strictly applied,and the limit of this scope cannot be arbitrarily exceeded,and there are currently no conditions for the application of Article 1176 by analogy.With regard to the problem of inconsistent understanding of the confrontational nature of cultural and sports activities,it should be clarified that “cultural and sports activities with certain risks”include,but are not limited to,confrontational cultural and sports activities,and confrontation is not a necessary attribute.With regard to the criteria for determining the risk of knowledge of the victim,the application of the assumption of risk rule is not limited to persons with full civil capacity,but can also be applied to persons with incomplete civil capacity,and civil capacity and recognition ability should not be confused,as long as the parties have the corresponding recognition ability,that is,they can fully recognize the risk and voluntarily participate,and the assumption of risk can be applied.When determining whether the victim is aware of the risk,the determination shall be made by comprehensively considering factors such as the victim’s age,experience,degree of specialization,and type of cultural and sports activities.