A Study On The Application Of The Risk Rule Interpretation Of The Civil Code

In recent years,with the rapid development of China’s cultural and sports undertakings and the increasing awareness of fitness among Chinese citizens,the number of tort disputes in the field of cultural and sports activities has been increasing.2021,the Civil Code was officially implemented,and Article 1176,paragraph 1,established the rule of self-giving risk.The introduction of this rule has made the handling of self-giving risk cases lawful and has played a progressive role in unifying the standards of adjudication.However,as a new provision,there are still many controversies on how to understand and apply it.The concept of self-giving risk,which originated in ancient Rome,has since undergone a long process of development in common law and civil law countries.In China,scholars in the field of jurisprudence have already paid attention to the issue of self-giving risks as early as in2002.Scholars proposed to legislate on the risk of self-giving in the draft civil code in 2002 as well as in the proposed draft tort liability law in 2009.At that time,the law did not provide for the rule of self-giving risk,and it was not until the formulation of the civil code that the rule of self-giving risk was provided for.From the perspective of China’s judicial practice,before the promulgation of the Civil Code,the judiciary had already applied the concept of self-giving risks in practice to deal with cases and had accumulated a wealth of experience.However,at that time,due to the lack of institutional basis,the problem of overly broad scope of application and mixed application of multiple rules arose.With the promulgation of the Civil Code,the handling of self-giving risk cases has been made legally enforceable and some of the problems that existed before the implementation of the Civil Code have been solved.However,due to the lack of specificity of the rules,there are still some problems in the application of the self-giving risk rules in the era of the Civil Code: the scope of cultural and sports activities,the certain risk of cultural and sports activities,the voluntariness of the subject,the suitability of minor subjects,intentional or gross negligence,and other elements are not uniformly determined.From the perspective of comparative law,foreign countries have richer experience in the application of the risk of self-inflicted injury,and there are areas to be learned from the specific elements of the risk of self-inflicted injury rule: the scope of application should be strictly limited according to the national conditions,the freedom of will of the parties should be taken into account when determining the voluntariness of the subject,the determination of the suitability of the minor subject should be combined with the actual situation,and the determination of whether the perpetrator is intentional or grossly negligent should not only be based on whether the parties have committed foul play but also be combined with other elements.Starting from China’s judicial practice,and at the same time drawing on relevant experience from abroad,the application of the self-sacrifice risk rule should be improved in the following aspects: reasonable definition of the scope of application,clear criteria for determining voluntariness,reasonable determination of the suitability of minor subjects,and reasonable definition of the criteria for judging wilfulness or gross negligence.It is hoped that this article will be of some help to the application of the self-giving risk rule,so that it can play a greater role in dealing with disputes over cultural and sports activities.