Research On The Establishment Of Competitive Sports Tort Liability

In recent years, along with the rapid development of China’s sports undertaking, sportsaccidents emerge in an endless stream; especially in the field of athletic sports.Athletesbetween damage event is also frequently occur, which leads to a large number of disputes andconflicts.so courts are facing two tasks: to promote the development of sports and theprotection of athletes.Moreover, because of competitive sports has its inherent risk of injuryto persons, the offender usually use assumption of risk or implied consent as a defense, so theproblem is will the harmful behavior between the athlete lead to the responsibility?Courts insuch cases should apply general fault liability, fair liability or strict liability?could the“assumption of risk” theory which derived from the ancient Rome law be incorporated intothe legal system of our country when The court in the application of the general principle ofliability?The standard of review is the subjective standard or objective standard when courtapply the fault liability in theory and practice is also not get a conclusive. Therefore we takethe “assumption of risk”theory as a breakthrough point and then though the comparison ofChinese and America case and theory and at the same time we take the establishment of tortliability between competitive sports athletes as the main line to answer the aforementionedquestions.We also hope our opinions can help the court when in deal with such cases.In this paper,in addition to the introduction,the main content is divided into three thefollowing parts:The first part: The status of legislation and judicial application of competitive sports tortliability.This part clarifies the sports field of our country’s legislation and judicial cases,wemake a conclusion that our courts should explain the general clause of the tort liability law inresolving such disputes.We also get some problems:the court have bias and controversy in theinterpretation and application of the tort liability law.And that is courts in order to ease theintent or gross negligence standard——the no duty rule’s unfair and give the victim a chancefor compensation. Can they bypass the fault responsibility and “flee to”the fair responsibilityto share the victim’s loss?The second part: Competitive sports tort liability imputation principle.This part of thestatement point out that the fair responsibility has no specific criteria so as to too abstract.And China’s tort law should adopt two kinds of liability system which is fault liability and strict liability principle.The fair responsibility has its strict suitable types and based on theconsiderations of law and policy,this paper argues that in the competitive sports tort liabilitycourts should not apply fair responsibility to share the victim’s loss.The third part: Determination of competitive sports tort liability.The last part we take the“assumption of risk”theory in American law as a breakthrough point.The USA courts inorder to continue the abolition of "no duty rule" spirit which the early sports tort liability shallnot promise compensation.“assumption of risk”theory has made case development and typesand it is no longer an independent liability defense.what’s more,“assumption of risk”theory isgradually replaced by the comparative negligence theory.USA court has adopted two kinds ofstandards in the comparative negligence theory which are intentional or reckless standard andgeneral negligence standard to examine whether the defendant’s conduct is illegal.Though thesubjective standard--intentional or reckless standards are the mainstream standard but it alsobasically lead to the plaintiff can’t obtain compensation and similar with the "no duty rule".Therefore America court with a return to the objective standard--General negligencestandard trend.However our country court faced the problem is more serious than USA courtwhen in determining the offender’s fault liability.China’s courts apply subjective standard tonegate the offender out of the fault liability and then “flee to”fair responsibility.This maycause the fair liability for abuse and fault liability’s basic function and general status will bedetracted.Therefore, this paper suggests that in the case of justice and consider the relatedfactors in competitive sports,China’s courts should learn from America court court trialexperience and change its usual way to use objective standard to judge the defendant’sconduct in violation of the law.