Research On The Application Of Assumption Of Risk Rule

Since the 18th National Congress of the Communist Party of China，General Secretary Xi Jinping has stressed the importance of building a strong sports power on many occasions,but while the coverage rate of sports infrastructure and people’s participation rate are rising,the frequency of personal infringement incidents caused by participation in sports activities is also rising.As a result,China’s civil law scholars began to try to introduce extraterritorial self-willing risk rules into this special infringement incident.The self-willing risk rule is stipulated in Article 1176 of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code"),which is the first time that Chinese legislators have explicitly written the self-willing risk rule,an independent cause of infringement exemption,into a formal legal provision.In the description of the legal provisions of the Civil Code,the scope of application of the self-willing risk rule is limited to "voluntary participation in cultural and sports activities with certain risks",in which case,when a participant suffers damage from other participants,the general principle of attribution of damages cannot be used to require other participants to bear tort compensation,unless "the other participants have intentional or gross negligence in the occurrence of the damage".By querying judgment documents on the judgment document website and the Peking University Magic Treasure Case Database with "self-willing risk" as the keyword,we can draw some conclusions from this: First,because the Civil Code provides too general and general provisions on the scope of objects applicable to the self-willing risk rule,and the corresponding judicial interpretations are temporarily absent,the phenomenon of unduly expanding the scope of application of the selfwilling risk rule has occurred in judicial practice;Second,the judge’s application of the self-willing risk rule is not rational enough,and the criteria for judging the subjective state of the perpetrator are too arbitrary,especially when subjectively characterizing the perpetrator.Third,the criteria for identifying entities applying the self-willing risk rule are not uniform,and the application of indirect participants cannot be accurately grasped.Fourth,the vast majority of judgments that invoke the self-willing risk rule as the conclusion of judgments are rendered by the basic level courts,and the basic level courts are prone to the phenomenon of improper application of the self-willing risk rule.Foreign research on self-willing risk rules has a long history,both judicial practice and legal doctrine are relatively perfect,which has certain reference significance for the application mode of self-willing risk rules in China.In order for the self-willing risk rule to achieve the legislative goals of legislators,it is necessary to improve the applicable rules of China’s self-willing risk rule.First of all,it is necessary to clarify the scope of application of the self-willing risk rule,clarify the boundary between the adjacent concepts of self-willing risk and the victim’s consent,fair liability and negligence,and then solve the problem of the ambiguous application of the adjacent concepts of the self-willing risk rule in China’s judicial circles.Secondly,it is necessary to clarify the scope of objects to which the self-willing risk rule applies,and distinguish the difference in the application conditions between non-confrontational cultural and sports activities and confrontational cultural and sports activities.Third,when judging the subjective state of participants in cultural and sports activities,it is necessary to focus on distinguishing between general duty of care and special duty of care.Finally,in the application of the scope of subject standards,direct participants should need to meet both informed and voluntary elements;For indirect participants,except for the referees in the venue,the self-risk rule shall not be applied.