The Application Of Assumption Of Risk Rule In Tort Law

For over the years,China has not clearly stipulated the risk rule in the law,but it has been applied many times in judicial practice,because there is no clear legal provisions,the different attitudes of different courts towards it,leading to the chaos of different judgments in the same case.This rule was introduced for the first time in Article 1176 of the Civil Code,and the purpose is to settle disputes and resolve disputes in practice.However,there are still great disputes in the judicial practice and the scope of application,application conditions and legal consequences in the theoretical circle,which is worth discussing.In the first part,This paper first sorts out the research status and trend of self-willingly risk rules in comparative law and domestic research,and the development trend of self-willingly risk rules slows down.In this background,China introduced them into the Civil Code,and related studies also appeared in large numbers,but they are one-sided and cannot meet the practical needs.After combing the application of the risk rules before and after the Civil Code takes effect,the applicable areas becomes smaller;the applicable conditions are changed from two elements to multiple elements,together with other rules.The second part,In the judicial practice of the risk rule in China,there are the four and five elements in the application conditions,and the independence from other rules.In the third part,On the scope of application,style should not be limited by the big sports concept,the judgment criteria should be based on the participants of the physical activity,in the specific case of specific judgment,should not think an activity must apply since the risk rules,this paper lists the three main areas in the judicial practice.In terms of applicable subjects,according to the different types of activities,the participants of self-willing risk activities are listed,including performers,athletes,judges,spectators,passengers,etc.The judgment standard is whether the plaintiff should fulfill the duty of care.In the fourth part,in the applicable conditions,the plaintiff knows and accepts the risk,the standard of the risk is judged by the agreement,age,experience and other aspects of the two parties;the plaintiff and the inherent risks of the activity should not be considered as inherent risks;the defendant has no intentional or gross negligence in the damage results,and his duty of care should not be too high.In the fifth part,the independence of application,self-satisfied risk rules as an independent reason for exemption,other there are big differences,should be clear judgment standards,abandon the mixing of self-satisfied risk rules and other rules,to overcome the result-oriented inertia thinking.In addition,attention should also be paid to the difference between self-willing risk rules and security responsibilities.Although the plaintiff’s behavior is a risk of self-determination,the event organizer should also fulfill the safety guarantee obligation.