Analysis Of Similar Cases Involving The Rule Of Voluntary Risk

Under the background of the national advocacy of "national fitness",the first paragraph of article 1176 of the civil code makes a new provision on the rule of self willing risk.The rules exempt participants from liability for damages arising in the field of recreational and sports activities except intentional or gross negligence.However,in judicial practice,there are some problems,such as the unclear scope of application of the voluntary risk rule,the different standards for the definition of intentional or gross negligence in the behavior of other participants,and the unclear division of responsibility of each subject after the application of the voluntary risk rule.Therefore,in view of the above focus issues,it is particularly necessary to make an empirical study on the normative content of article 1176 of the civil code from the perspective of "interpretative theory".First of all,at the level of legal application,the scope of application of the voluntary risk rule should be limited to the be havior of voluntarily participating in risky cultural and sports activities.By identifying the voluntary nature of the behavior,the legitimacy and risk of cultural and sports activities,and the causal relationship between the damage and the behavior of other participants,we preliminarily confirm whether there is room for the application of the voluntary risk rule in the case;Secondly,in determining the factual focus of intentional or gross negligence,the rules of recreational and sports activities sh ould be included in the attribution scope of intentional and gross negligence.The compliance behavior and general foul behavior shall be deemed as no intentional or gross negligence,while the malicious foul behavior shall be deemed as intentional or gros s negligence for the occurrence of damage;Finally,the application of voluntary risk rule should produce three legal effects.The first is to completely exempt other participants from the liability for compensation;the second is not to exempt the organiz ers and operators from the responsibility for security obligations due to the application of the self willing risk rule;the third is not to exempt the insurer from the liability for settlement of claims if there is a legal relationship in the insurance co ntract.In general,the judiciary should uphold the judgment concept of "balance of power and justice" and carefully examine whether the elements of the case comply with the premise of the application of the self willing risk rule.We should not only curb and amend the "right standard" thought caused by fair responsibility before the civil code,but also guard against the abuse of the self willing risk rule and produce the "obligation standard" thought,so as to guide the social value to the other extreme.In short,we should not only avoid the unrestrained expansion of utility theory and the application of self willing risk rules,but also stop the excessive correction of justice to utility,resulting in the excessive restriction of self willing risk rules.