A Study On The Assumption Of Risk Rule In Tort Law

The civil code of the People’s Republic of China(Draft)has determined the content of the assumption of risk,marking that the compilation of the civil code of China has formally incorporated assumption of risk into the legislative planning of tort liability,and further determined the legal positioning of assumption of risk.However,in practice,the difference between the existence and abolition of this system is obvious and has a long history.At present,some new problems in the fields of sports events,self-help tourism,guest passenger,extreme sports and so on cause us to think about the risk system of selfishness,and the number of judgments made by invoking this rule in judicial practice is also increasing,which requires us to pay more attention to a series of problems derived from the assumption of risk.Therefore,this paper mainly analyzes the different attitudes of the academic circles towards assumption of risk,and the application in judicial practice,with the intention to demonstrate the legitimacy of assumption of risk incorporated into the provisions of the statute law,form a comprehensive and unified understanding of the concept,classification,legal status and constituent elements of assumption of risk,and help to unify the application of the law.In addition to the introduction and conclusion,the text is divided into the following four parts:The first part is an overview of the assumption of risk system.This part mainly includes the definition and classification of the assumption of risk,as well as its development in foreign countries.The second part is about the different attitudes of the academic circles and the judicial practice towards the the assumption of risk.In the academic circle,because the system of assumption of risk has not been incorporated into the statute law,different scholars hold two different views on the necessity of its incorporation.In judicial practice,because of the unclear legal provisions,the fuzzy boundary with other systems,the consideration of social effects and other factors,there are different judgments for the same case.The third part is the legitimacy of assumption of risk as the defense of tort liability law.This part mainly from three aspects of the feasibility,rationality and irreplaceability of the risk system,explains the reasons why the risk system should be included in the written law,and then to solve the trial differences in judicial practice,so as to better protect the legitimate rights and interests of the parties,and give full play to the guiding function of the law on behavior.The fourth part is the analysis of the way assumption of risk rule be written into Tort Law.This part mainly combs the conceptual design of the risk rules of self-determination by Chinese scholars,and describes the rudiments of the risk rules of self-determination;through the evaluation and analysis of the risk rules of self-determination in the civil code of the People’s Republic of China(Draft),the application scope,application conditions and exclusion rules of the risk rules of self-determination are interpreted one by one,so as to deepen the understanding of the risk system of self-determination To provide ideas for the adaptation of the risk rule in reality.