Study On The Application Of The Self-giving Risk Rule

The Civil Code responds positively to the needs of judicial practice by incorporating the rules of self-giving risks into the legal provisions.This is not only a remedy for the long absence of risk rules in the legal provisions,but also a great guarantee for people’s right to freely participate in social activities and a relief for people’s concerns about participating in normal risky cultural and sports activities.The risk rules provide for the consequences of the responsibility of the parties involved in certain risky cultural and sports activities,and can provide legal guidance for people to participate in social and cultural activities rationally.However,the content of the self-giving risk rules is too abstract,and there is no relevant legislative interpretation and judicial interpretation to further specify them,resulting in more problems in the judicial application of the self-giving risk rules.Therefore,it is necessary to base on the tort liability system and combine with relevant judicial practice,to make a reasonable interpretation of the rules,in order to make full use of the rules to solve the real problems.This paper first analyzes the concept and legal nature of the self-giving risk rule,further clarifies the legal position of the self-giving risk rule in the tort liability part of the Civil Code,and divides the self-giving risk into express self-giving risk and implied self-giving risk according to the different types of behavior of the parties,which provides a basis for judging whether the parties have made a meaningful representation.Second,by analyzing 99 cases involving the self-giving risk rule in 2022,this paper summarizes the problems in the judicial application of the self-giving risk rule: First,there is an inconsistent standard for judging"voluntarily" and "knowingly",and this inconsistency is especially obvious in the cases of minors.Secondly,there are inconsistencies in the determination of gross negligence and the scope of cultural and sports activities;thirdly,there are disputes over the legal effects of the application of the self-giving risk rule in terms of exclusion and reduction of liability.Finally,this paper puts forward the following views on the differences in the judicial application of the risk of self-giving rule: in the judgment of "knowingly" and "voluntarily",the focus on the minor’s "knowingly" and "voluntarily" is based on the capacity and awareness of the activity."In the judgment of gross negligence,different criteria are given for the determination of competitive and recreational competitions,so as to reasonably divide the responsibilities of the participants of each activity;in the scope of application of cultural and sports activities,this article believes that games and recreational activities that do not strictly belong to the scope of cultural and sports activities should also be applied.In the scope of application of cultural and sports activities,this paper believes that games and recreational activities that are not strictly within the scope of cultural and sports activities should also be applied to the self-giving risk rule,but it is not appropriate to apply it by analogy in the field of traffic accidents.As an independent exclusion of liability,the application of the rules of self-gamma risk will produce the legal effect of exclusion of liability,but this effect of exclusion of liability is only applicable to the participants of the activity,the organizer of the activity cannot claim exclusion of liability,the organizer of the activity shall bear the corresponding legal consequences according to the second paragraph of the articles of self-gamma risk.